Bidyadhar Maity vs Hemanta Kumar Giri

Chatterjee, J.—This is a petition under Article 227 of the Constitution against an order passed by a Munsif at Contai who returned the petition u/s 26(F) of the Bengal Tenancy Act to the Petitioner and directed him to present the said petition before the proper forum. The question involved is whether a petition u/s 26(F) of the Act would still be maintainable if Section 8 of the Land Reforms Act has come into force and if, further, the provisions of Rule 4 of the West Bengal Estates Acquisition Act, 1953, have been withdrawn with respect to Section 26(F) of the Bengal Tenancy Act.

The kobala in this case was executed on April 30, 1963. On the date of the kobala Section 8 of the Land Reforms Act did not come into force on October 20, 1963. Rule 4 of the Rules under the West Bengal Estates Acquisition Act, as finally amended, came into force on August 1, 1964, and because of that Rule, Section 26(F) would not apply to property which has been retained after it vested in the State of West Bengal. Further, the Bengal Tenancy Act itself was repealed with effect from November 1, 1965. Therefore, all the three things happened after the kobala in question was executed. The right of pre-emption u/s 26(F) of the Bengal Tenancy Act or u/s 8 of the Land Reforms Act depends on the execution of the kobala. Therefore, on the date of the kobala, a right accrued to the co-sharer u/s 26(F) of the Act to pre-emption if the conditions stated therein were satisfied and on the facts of this case, there was that right on a transfer being made by a co-sharer to a third party. Therefore, the Petitioner did acquire the right to pre-emption u/s 26(F) of the Act on the date the kobala took its effect. Thereafter, on October 20, 1963, Section 8 of the Land Reforms Act came into force and that section also provided as follows:

If a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer, raiyat of the holding may within three months of the service of the notice given under Sub-section (5) of Section 5, or any raiyat possessing land adjoining such holding may, within four months of the date of such transfer, apply to the Revenue Officer specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him.

Hence, Section 8(a) refers to a transfer of a portion or a share of a holding of a raiyat subsequent to the coming into force of that Act. The statute refers to a transfer after the Act came into force because the relevant phrase is ''is transferred''; there is no intention to include cases of transfer which took effect before the Act came into force. In that case they would have used both present tense as well as past tense and on a simple grammatical meaning of Section 8 right of pre-emption accrued, with regard to a transfer after Section 8 came into force. But with respect to a transfer which had taken place before the date on which the section came into force, no right would accrue u/s 8. Therefore, on a grammatical interpretation of Section 8 of the Land Reforms Act, I cannot hold that a transfer in question would come within the purview of Section 8 of the Land Reforms Act. Hence, the coming into effect of Section 8 did not affect the Petitioner''s right, already acquired, to apply for pre-emption u/s 20(F) of the Bengal Tenancy Act.

The next event that occurred is on August 1, 1964. On that date there was an amendment to Rule 4(3) which provided as follows:

If the land held by the intermediary be agricultural land, then

(1) he shall hold it, mutatis mutandis, on the terms and conditions mentioned in Sections 23, 23A, Clause (a) of Section 25, Sections 26, 26B, 26C, 26G, Sections 52 to 55, Sub-sections (1) and (2) of Section 56 amongst other sections.

Section 26(F) is conspicuous by its absence. It is, therefore, urged that Section 26(F) would not apply to land which had vested in the State of West Bengal. If we refer to Section 6, we would find that an intermediary, which term at the relevant date included an occupancy raiyat, is entitled to retain under "such terms and conditions as may be prescribed" in the Act and they would hold directly under the State. The conditions prescribed at the date of the sale would include Section 26F. Therefore, at the date when the transfer took place, that is, on April 30, 1963, the rights of the parties would still be governed by Section 26(F) and the law of pre-emption as u/s 26(F) would apply. The notification which was made on August 1, 1964, shows that the words and figures "Sections 26 to 26G, 52 to 55" were substituted by the words and figures "Sections 26, 26B, 26C, 26G, Sections 52 to 55". Nothing has been pointed out to me which would show that this substitution would be deemed to have been always there. But the substitution came into effect on August 1, 1964. Therefore, whatever may be the position with regard to the transfer made after August 1, 1964 the rights of the parties as on the date of the transfer under Rule 4 would still be governed by Section 26F of the Bengal Tenancy Act. But there is another aspect of the matter. Even after amendment, Section 26 and some other sections of the Bengal Tenancy Act as stated hereinbefore would apply, that means that some of the incidence of the occupancy raiyat would apply but the question is not whether some of the incidence would apply or not. The question is whether the incident of pre-emption, as u/s 26F of the Act, would apply or not. It may, therefore, be urged that at least with effect from August 1, 1964, the properties which have vested in the State and which are held by an intermediary u/s 6(2) would be governed by the provisions of Rule 4 as amended on that date and their incidence would be determined as in Rule 4 and the result may be that Section 26F would not apply. But if at the date of the transfer the co-sharer has already acquired the right of pre-emption under Rule 4, as it then was at the date of the sale, there is nothing in the amendment which shows that he would be deprived of such right, if he had not exercised it by the time the amendment came into force. Therefore, the amendment does not affect the right of the co-sharer for pre-emption u/s 26F of the Act which accrued to him before the amendment to Rule 4 came into force. Hence, the amendment to Rule 4 on August 1, 1964, would not affect the rights of the co-sharer in the present case.

Finally, it is urged that with effect from November 1, 1965, the Bengal Tenancy Act itself has been repealed. It has been urged that the basis of Section 26F has gone. Therefore, the right of pre-emption, if not already exercised, cannot be exercised after the repeal of the Act. I may now refer to Section 8 of the Bengal General Clauses Act which provides as follows:

Where this Act, or any Bengal Act or West Bengal Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal take effect; or

(b) affect the previous operation of any enactment so replaced or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

I have not been referred to any provision which would imply a different intention within the meaning of Section 8 of the Bengal General Clauses Act. The result would be that a right which accrued under the Bengal Tenancy Act would not be lost by repeal. The right to pre-emption accrued by virtue of Section 6(2) of the West Bengal Estates Acquisition Act, read with Rule 4 under the Rules of the said Act and Section 26F of the Bengal Tenancy Act. The Bengal Tenancy Act has been repealed but this repeal would not have affected the right which is already acquired before the repeal came into force nor can this repeal affect any investigation or legal proceeding which pending at the date the repeal took place. This application in question was filed on September 8, 1964, and therefore, before the repeal in question and the application was pending at the date when the repeal took effect. Hence, u/s 8(e) of the Bengal General Clauses Act, the right of the co-sharer to preempt u/s 26F of the Bengal Tenancy Act is not affected by this repeal nor, as I have already said, by the coming into force of Section 8 of Land Reforms Act nor by the deletion of the letters and figures of Section 26F from Rule 4. The result, therefore, is that an application u/s 26F would still be maintainable even though Section 8 has come into force, even though Rule 4 has been amended and even though the Bengal Tenancy Act has been repealed.

Mr. Bhunia has drawn my attention to a judgment of Banerjee and D. Basu JJ. in the-case of Abharan Chandra Saha Vs. Sanat Kumar Sen, , where it has been held that the word ''condition'' in Rule 4 of the West Bengal Estates Acquisition Rules, was used in its general sense and included all the incidence of an occupancy raiyat holding, be the same as between the landlord and occupancy tenant or between the occupancy tenant and his co-sharers. With respect I agree with the observation made. Rule 4 as it stood at that time would determine the incidence of the tenancy and would include the incidence as between the landlord and the co-sharer tenants as also as among the co-sharers inter se and it is by Rule 4 that at the date of the transfer the co-sharer acquired the right of preemption.

Mr. Bhunia has further referred to another decision in the case of Sm. Hiranmoyee Dassi and Another Vs. On death of Amiya Pal Choudhury his legal heirs - Anil Pal Choudhury and Others, , where it has been held that there was an implied repeal of Section 168A of the Bengal Tenancy Act by Section 5B of the West Bengal Estates Acquisition Act, 1953. Their Lordships were not considering any of the sections that we are now considering and in view of what I have already discussed, the principles underlying that section would not apply to the facts and circumstances of this case.

Finally, I have been referred to a decision of the Supreme Court in the case of Municipal Council Palai Vs. T.J. Joseph and Others, , where their Lordships have considered the principles under which the doctrine of implied repeal would apply and their Lordships considered the following matters to be taken into consideration:

(a) whether the two statutes relate to the same subject-matter and have the same purpose;

(b) whether the new statute purports to repeal the old one in its entirety or only partially;

(c) whether one of the statutes is one of general application and the other a local or a special statute; and

(d) whether there is any repugnancy between the old and the new law; in ascertaining whether there is any repugnancy, the following principles will have to borne in mind;

(i) whether there is direct conflict between the two provisions;

(ii) whether the legislature intended to lay down exhaustive code in respect of the subject-matter replacing the earlier laws; and

(iii) whether the two laws occupy the same field.

The question is whether the remedy which a co-sharer is entitled to may be enforced in the manner referred to in Section 8 of the Land Reforms Act or in the manner referred to in Section 26F of the Bengal Tenancy Act. Both Section 8 of the Land Reforms Act and Section 26F of the Bengal Tenancy Act relate to pre-emption of a co-sharer. But Section 8 goes further. This gives a right of pre-emption to an adjacent owner which is not granted in Section 26F of the Bengal Tenancy Act. But the procedural law is different. In one case the Petitioner has to go to the civil Court and in the other case to the revenue Court. In considering the tests to be applied in determining whether the doctrine of implied repeal would apply or not I must say that the two statutes relate practically to the same subject-matter and have substantially the same purpose. The second condition is whether the Land Reforms Act purports to repeal the Bengal Tenancy Act in its entirety or only partially the answer is, after the Land Reforms Act came into force, it purports to repeal the procedural law entirely and the substantive rights partially. Thirdly, both the statutes are local and special statutes. Fourthly, there is very little repugnancy between the two statutes. There is the right of pre-emption in both. If a person applies u/s 26F, he will not get a right to pre-emption if he is merely an adjoining owner. If he applies u/s 8, he will get a right. I do not think this is repugnancy. Finally, Section 8 of the Land Reforms Act would apply only to transaction which took place after the said Section 8 came into force and not before it. This question would be more important and would directly arise in cases where the transfer is made after Section 8 of the Land Reforms Act came into effect. In the circumstances of the case, Section 8 did not come into force at the date when the right of pre-emption accrued. Therefore, there is no question of repugnancy here and there is no implied repeal.

The last point urged is that there is an appeal to the lower appellate Court and I should not interfere under Article 227 of the Constitution and should direct the parties to the lower appellate Court to seek their remedy elsewhere. The question is a pure question of law. I do not think that this is a case in which I should refuse to exercise my jurisdiction. It is a clear case where a Court, being vested with a jurisdiction, refused to exercise jurisdiction vested by law in it. Therefore, it clearly comes u/s 115(b) of the Code of Civil Procedure. This is a case in which no appeal lies to the High Court and also satisfies the condition of Sub-section (b). Therefore, I have power to interfere u/s 115(b) of the Code Finally Mr. Bhunia urges that the Estates Acquisition Act operates notwithstanding anything contained in any other statute. This is Section 3 of that Act. I have held that Section 8 of the Land Reforms Act does not apply because the right to pre-emption accrued on the transfer which took place before Section 8 came into force. I have next held that the intermediary, i.e. occupancy tenants, retained the land u/s 6(2) of the Estates Acquisition Act and hence on such terms as it was prescribed by the rules under the Act, by Rule 4 as it was on the date of the transfer the occupancy raiyat had the right to pre-empt; subsequent deletion of Section 26F from Rule 4 would not affect the right to pre-empt, already accrued because of Section 8, Clause (c) of the Bengal General Clauses Act. Hence, I have held, right so to pre-empt accrued because of the Estates Acquisition Act and the rules thereunder. So there is no question of repugnancy as in Section 3 of the Estate Acquisition Act.

The Rule is made absolute. The trial Court is directed to decide the matter on merits--the application u/s 26F of the Bengal Tenancy Act being maintainable.

Each party will bear his costs.