Prasanna Kumar Giri vs Gangadhar Raut

S.K. Datta, J.—This Rule is directed against an order of the Additional District Judge, Midnapore, dismissing the appeal filed by the preemptee in a proceeding u/s 8 of the West Bengal Land Reforms Act, 1955. The opposite party purchased for Rs. 2,500 84 acre of land out of 4-45 acres of plot No. 93 R.S. khatian No. 33/1 mourn Chhalaberia, district Midnapore, on March 22, 1965. On the following day on March 23, 1966, the Petitioners purchased for Rs. 5,000 for 2 acres of land of the said plot No. 93 from the same vendor. There is no dispute that no notice of the subsequent transfer as required u/s 5(5) of the Act was served on the opposite party. According to his case, after coming to know of the transfer from the local people, he obtained a certified copy of the kobala of March 23, 1965, on August 26, 1967. Thereupon, on deposit of Rs. 5,000 he filed an application before the Revenue Officer, Jhargram, on September 15, 1967, for pre-emption u/s 8 of the Land Reforms Act, 1955, giving rise to Misc. Case No. 74 of 1967.

The Petitioners before us filed a written objection to the application for pre-emption praying for its dismissal on several grounds. The records were subsequently transferred to the learned Munsif, Jhargram, giving rise to J. Misc. Case No. 25 of 1973. On a trial on evidence before him, the learned Munsif held that the application was not barred by limitation which was three years in case of non-service of notice u/s 5(5) from the date of completion of registration on April 5, 1965, when the sale was completed. It was, further, found that the opposite party was a co-sharer and thus entitled to pre-emption. The claim for improvements was rejected in absence of any evidence in support. The application was accordingly allowed.

The Petitioner preferred an appeal against the said decision u/s 9(6) of the Act before the District Judge, Midnapore, who transferred the appeal before the Additional District Judge, Second Court, Midnapore, for disposal. The learned Additional District Judge affirmed the finding that the application was not barred by limitation and the claim for improvement was not established by evidence. Accordingly, the appeal was dismissed. In the present Rule the Petitioner, who is the preemptee has challenged the propriety of the decision.

Mr. H.D. Ghosh, learned Counsel appearing for the Petitioner, has, firstly, contended that the appellate judgment was wholly without jurisdiction as the Additional District Judge was not empowered to hear and dispose of the appeal under the relevant sub-section. Sub-section (6) of Section 9 is as follows:

Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situate within thirty days from the date of such order and the District Judge shall send a copy of his order to the Munsif.

Strongly relying on the terms of the above sub-section, Mr. Ghosh contended that the District Judge having jurisdiction over the area is the only competent authority to hear and dispose of the appeal. When the Legislature intended that powers conferred by the Act on an authority is also to be exercised by other authority there is express provision in that behalf in the Statute itself. Reference was made to Section 2, Sub-section (4) where it is provided that the Collector of the district or any other officer appointed by the State Government shall discharge any of the functions of a Collector under the Act. Mr. Ghosh, further, referred to the decision in Nilkanta Jana v. Iswar Chandra and Ors. (1975) 79 C.W.N. 591 wherein it was held that an Additional District Judge having jurisdiction over the area in which the lands are situated is also the District Judge contemplated under Sub-section (7) of Section 9 of the Act. Provisions of Sub-section (6) of Section 9 in respect of the District Judge are similar to those of Sub-section (7). Mr. Ghosh submitted that the above decision was not correct and required reconsideration by the Division Bench.

It was pointed out by Mr. Ghosh that as the above judgment was delivered by me sitting as a since Judge in propriety the question should be considered by a Division Bench in which I should not be a member. Mr. Ghosh, however, insisted that the question should be re-examined by us on the basis of the submissions as made by him as already indicated. Accordingly, we proceed for re-examination of the question in the light of the submissions made by him.

The point for consideration is the nature of functions that the District Judge is required to exercise under Sub-section (6) of Section 9. There can be little dispute that such functions are purely judicial functions in disposing of the appeal before him against a judgment passed following the procedure of a judicial trial. If there be any provision of law whereby on account of exigency of business such judicial functions can be exercised by any other Judge of the cadre as provided, there can be no impediment in law for such other Judge or authority to discharge the judicial functions of the District Judge which will be in compliance of the said provisions. Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887, provides as noted in the earlier judgment as follows:

8.(1) When the business, pending before any District Judge, requires the aid of Additional Judge for its speedy disposal, the State Government may, having consulted the High Court, appoint such Additional Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions, they exercise the same powers of the District Judge.

It is thus obvious that, in the discharge of judicial functions, the position of the Additional Judge is thus equated to that of the District Judge of the district having identical powers as may be conferred.

We may as relied on by Mr. Bhuiya, counsel for the opposite party, refer in this connection to the following observations of the Supreme Court in The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, also.

The provisions in the Telegraph Act which contemplate determination by the District Judge of payment of compensation payable u/s 10 of the Act indicate that the District Judge acts judicially as a Court.

Where by Statutes Matters are referred for determination by a Court of Record with no further provision the necessary implication is that the Court will determine the matters as a court, see National Telephone Co. Ltd. v. Postmaster-General 1913 A.C. 546. In the present case, the Statute makes the reference to the District Judge as the Presiding Judge of the District Court. In many Statutes reference is made to the District Judge under this particular title while the intention is to refer to the Court of the District Judge.

The Court, further, found that there was intrinsic evidence that the District Judge was mentioned therein as the Court of the District Judge. In the Statute before us also the District Judge referred to is to be deemed as the Court of the District Judge when the only function the District Judge is required to exercise u/s 9(6) is the judicial function. For all reasons we do not find any ground to alter the proposition laid down in Nilkanta Jana''s case Supra that the word District Judge includes any other Judge duly authorised to exercise the judicial functions of the District Judge. Such provision is distinct from the provisions regarding Collector in Section 2(4) of the Act wherein functions other than judicial are embraced and in respect of exercise of judicial functions in appeals by the Collector specific provisions have been made in Section 54 for discharge of such functions by other authorities.

The last point relates to the limitation. Sub-section (1) of Section 8 provides for filing an application for pre-emption by a co-sharer a limitation of three months of the service of the notice of-transfer while for raiyats possessing land adjoining, such limitation is four months of the date of transfer. No limitation under the Statute is provided for a non-notified co-sharer of any transfer of a share in the holding. Even so, by the West Bengal Land Reforms (Amendment) Act, 1972, such application is to be filed before the Munsif having the territorial jurisdiction in place of the Revenue Officer specially empowered by the Government in that behalf. The expression ''Munsif in the'' said sub-section refers to the Munsif as a Court vide Behari Lal v. Bishnupada (1975) 79 C.W.N. 103. So that Article 137 of the Limitation Act, 1963, applies to such application as has been held in Kerala State Electricity Board''s case Supra referred to above. It has been held:

The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the CPC other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be application to a Court.

The limitation for applying for pre-emption to the Munsif by a non-notified co-sharer under Sub-section (1) of Section 8 of the Act is thus three years from the period when the right to apply accrues under Article 137 of the Limitation Act, 1963, obviously on the completion of the registration of the deed of transfer as held in Malay Kumar v. Rabindra Nath 1977 (1) C.L.J. 92 following Hiralal Agrawal etc. Vs. Rampadarath Singh and Others, etc., .

The further question now is what should be the period of limitation for an application by a non-notified co-sharer prior to the said amendment when the co-sharer was to apply to the Revenue Officer specially empowered by the State Government in that behalf as in the instant case. In this case, the application for pre-emption was filed on September 15, 1967, before the ''Court of the Sub-divisional Land Reforms Officers, Jhargram'' (Revenue Officer under Sections 8 and 9 of the West Bengal Land Reforms Act), in respect of a transfer of March 23, 1965. On the promulgation of the West Bengal Land Reforms (Amendment) Act, 1972, under Sub-section (3) of Section 8 on the commencement of the said Act, every application stood transferred to the Munsif having jurisdiction over the area for disposal from the stage at which it was so transferred and to be disposed of in accordance with the provisions of the Act as thereby amended. In the instant case, the records, accordingly, were transferred to the learned Munsif on January 27, 1973, for disposal.

It is obvious that no notice as required u/s 5(5) could be served, as the pre-emptor acquired interest only on the previous day of the impugned transfer. Even though the application for preemption was made within three years, such limitation for which no limitation is provided for in the Act as non-notified co-sharer had no application when the application under the prevailing law was to be made to the Revenue Officer who was, it was contended, not, a Court. Accordingly, Mr. Ghosh submitted that the application was barred by limitation not being within the statutory period of three months from knowledge of the pre-emptor when he was aware of the transfer even on the date of sale.

In Asmatali v. Mujaharali (1947) 52 C.W.N. 64 (71) S.B. a Special Bench of this-Court held that the right to apply for pre-emption under the Bengal Tenancy Act, 1885, was given to all co-sharers irrespective of the fact whether the notice u/s 26(c) of the said Act was served or not. The right to apply for pre-emption did not, therefore, depend upon service of the notice of transfer under the said Act. In regard to the West Bengal Land Reforms Act also, we are of opinion that the Legislature ensured the right of pre-emption to a co-sharer irrespective of the service of notice of transfer upon him. In considering the time within which the co-sharer has to apply for pre-emption, B.K. Mukherjea J. (as his Lordship then was) speaking for the Court observed:

Under Section 143, Bengal Tenancy Act, subject to any rules to the contrary that the High Court may frame with the approval of the Provincial Government, the CPC is applicable to all suits under the Act. The same procedure is attracted to applications and other miscellaneous proceedings by virtue of the provision of Section 141, CPC Section 144(3), Bengal Tenancy Act, further lays down that all applications by landlord or tenant which are authorised to be made under the Act shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the application is made. The entire proceeding in an application u/s 26(f) is thus regulated by the CPC and we have no hesitation in holding that the residuary Article 181, Limitation Act, would be applicable to such applications, except so far as any special provision has been made in regard to them in the section itself.

The West Bengal Land Reforms Act does not in terms provide that the various proceedings thereunder would be governed by the Code of Civil Procedure. Even so in the Limitation Act, 1963, the residuary Article 137 is not confined to proceedings under the Code, but it applies to all proceedings before the Court under the provisions of any Act, so that, as we have seen, an application to the Munsif for pre-emption by a co-sharer not notified would be governed by Article 137. But in cases where such application was to be made to the Revenue Officer during the period prior to the amendment of 1972, Article 137 would have no application. The position, then, is that for such application before the Revenue Officer, by a non-notified co-sharer there is no limitation.

In this state of affairs, we had been tempted to hold, as in many decisions in similar circumstances, that the Applicant must show reasonable diligence for enforcing his claim for pre-emption after his knowledge of transfer. The Special Bench in Asmatalti''s case Supra warned against such action as unwarranted in law. It was observed:

We do not think that if is permitted for us to substitute the words ''knowledge of transfer'' for the words ''service of notice'' as used in Section 26(f). It is settled that a casus omissus or a mistake made by the framers of the Statute could not be remedied by a Court of law.... For the same reasons, the doctrine of reasonable time...seams to us to be unacceptable. In case of equitable relief, the Court might refuse the prayer of an Applicant who has unduly slept ever his rights. This principle can certainly be applied when orders, which are more or less discretionary with the Court to pass, are claimed by a litigant. If the claimant is guilty of undue delay by which the other side has been prejudiced, the Court is always competent to refuse to make the order. It cannot be said however that the relief by way of pre-emption as provided in Section 26(f), Bengal Tenancy Act, is a discretionary relief and the Court is at liberty to refuse the prayer if in its opinion it is likely to cause injustice. In these circumstances, if the Legislature either inadvertently or otherwise omitted to provide any period of limitation for applications of a particular type, we are unable to Say that such application should be refused if not made within a reasonable time. This would be to legislate and not to interpret the law as it stands. In our opinion, therefore, the view taken in the decisions referred to above is not sound and cannot be accepted.

In view of the position as indicated above there is no period of limitation for applications for pre-emption by a co-sharer tenant who has not been served with any notice of transfer u/s 5(5) of the Act, prior to its amendment by the 1972 amendment, when such application had to be filed before the Revenue Officer as also has been held by Chittatosh Mookerjee in Jayanta v. Gouri Hari 1975 (1) C.L.J. 436, The Revenue Officer or the Munsif as transferee Court, or the Courts on appeal or revision cannot substitute reasonable time as the period of limitation for such application. The position is different after the said amendment providing that such applications by a co-sharer are to be made before the Munsif having jurisdiction over the area, as the residuary Article 137, applies in such case.

For all these reasons, we do not find that the application is barred by limitation. No other case has been made out to defeat the claim for pre-emption. The Rule, accordingly, fails and is discharged without, however, any order as to costs.

G.N. Ray J.

I agree.