Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that under the West Bengal Restoration of Alienated Land Act, 1973, homestead land, when included within the meaning of the term ‘land’ means homestead of the agriculturist and not any or every structure of non­-agricultural land. The said view was expressed by Calcutta High Court in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82 and approving the same, the Court said,

“This proposition has been laid down on interpretation of a State Law by the jurisdictional High Court. The said judgment has held the field since 1982.”

The Court, further, held that even waterbodies like pond or tank should also have some connection with agricultural land or the occupation of the transferor as agriculturist to come within the purview of the 1973 Act.

Scheme of the West Bengal Restoration of Alienated Land Act, 1973

The West Bengal Restoration of Alienated Land Act, 1973 contemplates, in substance, return of land to a small landholder in a situation such a landholder conveys the same to raise funds to tide over financially distressed condition. For restoration of the conveyed land, the concerned landholder is required to make an application to the authority prescribed under the said statute. This legislation lays down certain parameters within which a landholder ought to come to invoke the provisions relating to restoration of the land already conveyed by him.

The nature of land to which the said Act applies is defined in Section 2 (2) of 1973 Act. Under the said provision, land means agricultural land and includes homestead, tank, well and water channel. To be eligible for the protective umbrella of this statute, the aggregate holding of the transferor cannot exceed two hectares. The 1973 Act, as originally framed, applied to any transfer made by a landholder “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. There has been subsequent amendment to the Act by which the words “in distress or” has been omitted.

Background of the Case

A deed of conveyance executed on April 26, 1968 and the transferors of the land forming subject-matter of that deed applied for restoration thereof on August 9, 1974. At that point of time, the 1973 Act, as originally framed was applicable. The land forming the subject of the sale transaction included parts of a pond (tank) and garden. It was urged that the subject land was sold in distress. The deed of conveyance showed that the first vendor was effecting transfer for buying other property whereas the second vendor wanted the sale proceeds to be applied for repaying loan obtained for marriage of her sister. The third vendor, also representing her two minor sons and daughter, declared in the deed that the sale was being effected for meeting the educational costs of her two minor sons and also for repaying loans obtained for (i) marriage of her daughter (ii) obtained by her husband and (iii) for buying “some paddy land for our food, cash is required”. The purchaser of the land argued that the land in question was homestead non­agricultural land and hence the said Act would not be applicable so far as the subject­transaction was concerned.

Calcutta High Court’s judgment in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82

The High Court held that the 1973 Act did not profess to reopen all transfers of all properties and it was intended to give relief to agriculturists in respect of distress sales or the likes and in the definition clause land has been defined to be limited to agricultural land. Referring to homestead land, the Division Bench took the view that homestead land when included within the meaning of the term “land” in 1973 Act means homestead of an agriculturist and not any and every structure on non-agricultural land. [Read the full text of the judgment here]

Supreme Court’s Ruling

Bose, J, for himself and Kaul and Murari, JJ, said that mere fact that part of the sale proceeds has been utilised for purchasing  another agricultural land would not per se disentitle a transferor from invoking the restoration provision contained in the 1973 Act, provided of course, the transaction sought to be repudiated otherwise attracts the provisions of the said statute.

Under Section 4 (1)(a) of the Act three situations have been contemplated as alternative conditions to enable a land holder to seek restoration of land already conveyed by him. These are “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. The Court noticed that these are interconnected situations and in the case at hand, the vendors’ reasons for transfer, spelt out in the conveyance deed itself comes within the broad terms expressed in the statute.

The Court said that the substantial part of the sale proceeds was to be applied to meet the maintenance need of the vendors and their family. Fresh purchase of land, covering little over half of the consideration sum received from sale of the subject¬land was also for the purpose of maintaining the necessities of the vendors. Hence, it cannot be held the said transaction per se did not constitute distress sale. The reasons cited by the vendors for selling the land definitely show that they were in need of money.

However, on a reading of the orders of the Special Officer, Appellate Authority, and the Tribunal, the Court found that the issue relating to the character of the land conveyed was not raised before any of these three fora. It noticed,

“… this question goes to the root of the matter in controversy. But because of this lacuna, we do not think the applicants ought to have been altogether nonsuited from the restoration proceeding, particularly since this point does not appear to have had been raised before the statutory fora by the original purchaser. There is no reflection of such argument in the said three orders. In our opinion, this is a crucial point which should have been determined before foreclosing the applicants’ restoration plea.”

It, hence, remanded the matter to the Tribunal with a direction to undertake the exercise of determining the nature of the land with the object of finding out if the same came within the purview of the 1973 Act or not. The Court directed the Tribunal to complete the process of adjudication on this point within a period of four months.

[Renuka Dey v. Naresh Chandra Gope,  2020 SCC OnLine SC 895, decided on 02.11.2020]

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