ivil Appeal No 3482 of 1987
From the Judgment and Order dated 1031983 of the High Court of Gujarat in Special Civil Application No 1294 of 1977 SK Dholakia PC Kapur and RC Bhatia for the Appellant
A Subba Rao CV Subba Rao and Mrs Sushma Suri for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
This appeal by special leave is from the judgment of the High Court of Gujarat in Special Civil Application No 1294 of 1977 under Article 226 of the Con stitution of India
The Government of India Ministry of Foreign Trade an nounced through public notice No 196 ITCPN69 dated 8th December 1969 a scheme for registration of contracts in volving deliveries extending over a period of not less than 12 months for cash assistance hereinafter referred to as the scheme 
The Government decided to extend the scope of the scheme as was announced by letter No 12 2267EAC dated 4th February 1970 hereinafter referred to as the 1970 scheme  stating inter alia in paragraph 3 that the registered exporter of export products under a contract involving deliveries extending over a period of not less than 12 months registered by the banks in terms of para graph 3 of the public notice dated 8th December 1969 will be eligible for claiming cash assistance at the same per centage as was prevailing on the date of the Firm contract so registered provided that the bank attested invoice which is normally produced for the purpose of claiming cash assistance bears a further attestation from the negotiating bank to the effect that exports effected in this invoice is against a contract registered with them giving the Registra tion number and date
If during the currency of the regis tered contract the rate of 505 cash assistance is reduced by Government the higher rate of cash assistance existing on the date of the Firm contract would be admissible on exports under the said contract
If on the other hand there is an increase in the rate of cash assistance percentage during the currency of the registered contract exports made during the contract would not normal ly be eligible for the benefit of the increased rate in special cases where the operation of this rule is likely to affect an exporter adversely Government would be prepared to consider the matter on merits
It was also stated in paragraph 5 that the registered exporter would be entitled to claim cash assistance as and when the exports are made against the registered contracts and the application would be submitted to the disbursing authority in accordance with the policy and procedure announced from time to time by that Ministry
By letter No 12472 EAC dated 20th April 1972 on the subject of Amendment No 53 the cash assistance scheme on export of engineering goods was modified to the effect that an additional cash assistance of 5 of the fob value will be allowed on all exports made to North American and South American countries and to New Zealand and these facilities of normal cash assistance and additional cash assistance will be allowed on exports effected during the period from 141972 to 30972 the later date being included
By letter No 121373 EAC dated 16th June 1973 referring to Amendment No 59 it was announced that cash assistance on transmission towers will be made admissible on exports thereof made during the period from Ist October 1974 upto and including 31st March 1973 at the rate of 25 of the fob value
The appellant is a company registered or deemed to be registered under the for exporting Line Towers Galvanised Mild Steel Towers hereinafter called Transmission Towers  Item No A 271 by entering into contracts with the National Electricity Board of the State of Malaysia a public utility service of Malaysian Govern ment briefly called the NEB  which had invited a global tender in October 1971 for design fabrication and supply of Transmission Towers and the appellant s tender submitted on January 29 1972 was accepted by them and pursuance thereto a contract was entered into on May 17 1972
The said con tract was duly registered with the Central Bank of India Lal Darwaza Ahemdabad on May 30 1972 and was allotted registration No 501
Subsequently the NEB having needed more Transmission Towers more contracts entered into and the same were registered as follows 506 section No Date of Offer Date of acceptance Date of regis tration of the offer of the contract with the bank
1 2 3 4 1
2911972 1751972 3051972 2A 2911972 2061972 2671972 2B 3181972 27101972 13111972 3
2841973 561973 1561973 Telex 3151973 In respect of the exports made pursuant to two of the afore said contracts namely No 1 and 2A the respondents paid to the appellants a cash assistance of Rs348555 but refused to pay the claimed amount of Rs41078493p in respect of the exports made pursuant to the other two con tracts and instead demanded refund of aforesaid Rs348555 already received by the appellant
By letter dated 1031975 to the appellant the Controller of Imports and Exports informed that the exports made during the extended delivery period of the contract were not covered under the provisions of paras 56 64 of Part B of Import Trade Control Policy Volume II April 1972 March 1973 and as such no cash assist ance could be granted on exports made after March 1974
The Deputy Chief Controller of Imports and Exports rejecting the appellant s appeal vide his letter dated 3061976 informed the appellant that the benefit of regis tration on export in execution of the supplementary contract was additional quantity at increased rates and could not be allowed under Government Policy
The appellant s second appeal was also rejected by the Chief Controller of Imports and Exports vide his letter dated 8th January 1977 stating that after execution of the supplementary order there was increase in quantity of goods to be supplied as well as price as on the date of execution of the supplementary order and the import policy did not provide for protection of benefits under the scheme for registration of contracts on the cases where there was increase in the value of con tract
The appellant s review petition was also rejected by letter dated 19th July 1977 stating that as per provision of the policy contained in the relevant Policy Book if there was an increase in the value of contract on account of price escalation clause or renegotiation on the ground of increase in prices of raw materials protection to registered con tract was not available
507 The appellants thereafter moved an application under Article 226 of the Constitution of India in the Gujarat High Court which partly allowed the petition restraining the respondents from enforcing the demand for the refund of the amount already paid by way of cash assistance and rejecting the appellant s claim in so far as the contracts entered into in the context of the offers made subsequent to April 1972 because the cash assistance declared as on April 1 1972 and thereafter was in terms made available upto a specific date
The exports under the two concerned contracts namely No 2 B and 3 were admittedly made after July 1974 though in case of contract No 2 B the date of offer was 3181972 and the date of acceptance was 27101972 and the date of registration 13111972 and in the case of contract No 3 date of offer was 2841973 and date of acceptance of 56 1973 and date of registration was 1561973
Learned counsel for the appellant Mr SK Dholakia first submits that the appellants are entitled to cash assistance in respect of these two contracts also inasmuch as the scheme of registration of contracts for cash assist ance dated 8th December 1969 as also that of 4th February 1970 were not time bound and did not prescribe any period for export to be eligible under the scheme that it was only the subsequent scheme that prescribed a period and that the appellant exported TransmissiOn Towers pursuant to the contracts entered into during the earlier period but due to increased demand subsequent supplementary contracts had to be entered into and for price escalation and other diffi culties actual exports were delayed
He relies on Section 1 Part B of Import Control Policy Volume II April 1972March 1973 Import Policy for Registered Exporters Registration of Export Contracts contained in paragraph 56 64 thereof
Secondly the learned counsel submits that cash assistance scheme of 1969 as well as that of February 1970 were based on the Government s policy of long term assistance to ex porters and it was with that end in view that the scheme of registration of contracts with the banks was introduced
Relying on paragraph 3 of the 1970 scheme he emphasises that it was the date of the Firm contract which was to be reckoned and not the date of export of the products
Relying on paragraph 6 of the scheme he submits that it envisaged contracts involving deliveries extending over a period of not less than 12 months and contracts for export were to be registered by the banks in the manner prescribed
As regard the Government s policy of assisting the exports for the purpose of augmenting foreign exchange earnings of the country he submits that the deprivation of cash assistance to the exporter who registered their contracts would defeat the very purpose of the scheme
508 Mr CV Subba Rao learned counsel for the respondents demurs submitting that it could not be said that once the contracts were registered cash assistance would be available irrespective of the date of the exports
We are inclined to agree with this submission
Paragraph 10 of the scheme dated 4th February 1970 reads Cash assistance is sometimes announced upto a specified date
Exports effected after the specified date even though the contract has been got registered in terms of the provision of this letter will not be eligible for cash assistance
 This paragraph made it quite clear that exports effected after the specified date would not be eligible for cash assistance Consistently with this paragraph in the subse quent schemes the periods were prescribed
The amended scheme dated 20th April 1972 prescribed the period from 141972 to 3091972 and the amended scheme dated 16th June 1973 applicable to this case prescribed the period from Ist October 1972 upto and including 3 Ist March 1973
In other words exports of Transmission Towers made after the pre scribed period would not be eligible to assistance under the prevalent scheme
The word amendment  would imply that the scheme of 1969 stood amended
If that be so there could arise no question of granting cash assistance to different exports under the original scheme and the prevalent amended scheme at the same time
1n reply Mr Dholakia submits that at different stages the respondents gave different reasons for refusing to pay cash assistance to the appellants
However in view of the unequivocal language of paragraph 10 of the 1970 scheme and clear prescription of the different periods during the subsequent amended schemes and the admitted facts that the export in respect of these two contracts were made only after July 1974 we see no reason to allow the appellant s claim
Whether the Government s policy was conductive to maximisation of exports and foreign exchange earning is entirely a different matter
In the result we find no merits in this appeal and it is accordingly rejected leaving the parties to bear their own costs


Summary:
An application for pre emption was filed under the provisions of section 8 of the West Bengal Land Reforms Act 1955 by the respondent to pre empt a plot of land sold to the appellant by a Kobala dated May 16 1974 by a co sharer having 14 interest in the plot
The land in question was owned by an agriculturist and he used to keep his agricultural implements in the said property
He also possessed other agricultural lands as agriculturists and in occupancy raiyati interest
The suit property was recorded in his name as Raiyat Sthitiban  and the classification of land was recorded as Bari  ie homestead of the said agriculturist
On September 20 1967 the land was sold by a registered Kobala to 4 persons and on October 28 1968 one of the persons sold his share to the predecessor of the respondent
On the basis of this Kobala it was alleged that he was a co sharer
The respondent filed an application for pre emption under section 8 of the West Bengal Land Reforms Act 1955
The appellant contested the same contending in the written statement that the respondent was neither co sharer of the holding nor an adjoining owner and that the disputed proper ty is non agriculture tenancy that the petition was barred by limitation as the respondent was all along aware of the sale of the property and that the story of his coming to know only after taking copy of the sale deed was absolutely false
397 The Trial Court held that the respondent was a co sharer and was entitled to pre empt the application of pre emption was not barred by limitation as it was filed within a period of 3 years of the knowledge of the same as no notice of the sale was served on the respondent
The Trial Court further held that the land was non agricultural land and as such the application for pre emption under section 8 was not main tainable
The miscellaneous case was accordingly dismissed
The respondent filed an appeal and the Additional District Judge reversed the findings of the Trial Court and held that the suit property was recorded as raiyati interest in the RS Record of Rights and being the homestead land of an agriculturist the application for pre emption under section 8 was maintainable
The appeal was allowed and the judgment of the trial court was set aside
The appellant filed a revision petition in the High Court
During its pendency he made an application for amend ment claiming alternative relief for pre emption under section 24 of the West Bengal NonAgricultural Tenancy Act 1949
The High Court held that even if the land was non agricultural land pre emption could be granted under sec tion 24 of the WB Non Agricultural Tenancy Act but dis missed the petition on the ground that there was no juris dictional defect or error entitling the Court to interfere in revision
In the appeal to this Court by special leave it was contended on behalf of the appellant that the land has been recorded as in the RS Record of rights as non agricultural land and that the Trial Court had rightly held that Section 8 of the Land Reforms Act was not applicable to such a holding
The decision of the High Court to the effect that the finding recorded by the Appellate Court to the contrary suffered from no jurisdictional error was therefore wholly unwarranted
Relying on Eyachhin Ali Naskar vs Golap Gazi it was contended that nature of holding had to determined with reference to the user of land comprised in the holding
Dismissing the appeal HELD 1
The application for pre emption under section 8 of West Bengal Land Reforms Act was properly allowed by the lower appellate court and the said order was maintained by High Court
There is no infirmity in this finding and the same is upheld
400G H 398 2
The definition of land as given in section 27 of the West Bengal Land Reforms Act 1955 means agricultural land and includes homesteads
But homestead land does not fail within the province of non agricultural land both under the Non Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act 1955
Eyachhin Ali Naskar and Anr
vs Golap Gazi per incuriam  over ruled
404E F 3
On a conspectus of the provisions contained in sec tion 28 WB Estates Acquisition Act 1953  section 24a WB NonAgricultural Tenancy Act 1974 it follows that Homestead  of an agriculturist even though the same is included in the holding of the raiyat but not on the agri cultural land still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Land Reforms Act read with West Bengal Estates Acquisition Act and West Bengal Non Agricultural Tenancy Act
404G H 405A 4
There is nothing to show that the non agricultural land in the instant case has vested and the same has not been retained by the owner nor is there anything to show that the original owner had in his possession non agricul tural land exceeding the ceiling limits even assuming that the land is non agricultural land
But the land being home stead of an agriculturist is agricultural land
Therefore the amended provision of section 3A of the West Bengal Land Reforms Act does not require consideration in this matter
406C E Dwarka Nath Prasad Atal vs Ram Rati Devi and Luigi Ambrosini Ltd vs Bakara Tinko and Another AIR 1929PC 306 distinguished