BAKUL NAG Vs. SAIBAL GUIN

JUDGEMENT

(1.) The present Misc. Appeal is directed against the judgment and order No. 60 dated April 27, 1978, passed by the learned Subordinate Judge, Birbhum at Suri, in Misc. Case No. 40 of 1975, allowing the application for preemption in favour of the Respondents Nos. 1 to 3, who were the applicants in the Court below. Since, at the time the application in question, which was filed on August 27, 1975, had been presented, the land in question was non -agricultural land, the application was made invoking the provisions of Sec. 24 of the West Bengal Non -Agricultural Tenancy Act. The instant appeal against the said decision of the learned Subordinate Judge had been presented before this Court on July 28, 1978. During the pendency of the appeal, the West Bengal Land Reforms (Amendment), Act 1981 (hereinafter referred to as the Amending Act), had been enacted and the effect of the said Act on the aforesaid pending proceeding constitutes the major part of the controversy between the parties before this Court.

(2.) The pro forma opposite party, Respondent No. 4 herein, was a non -agricultural tenant under the State of West Bengal and by a Registered Sale Deed dated April 7, 1971, he sold to the Respondent No. 2 three cottahs 10 chattacks of land of dag No. 1375 appertaining to the said Respondent No. 4 further sold 8 decimals of land out of the very same dag to the present Appellant on the basis of another Registered Sale Deed dated April 18, 1947, for a consideration of Rs. 24,999. The application for pre -emption under Sec. 24 of the West Bengal Non -Agricultural Tenancy Act had been filed to pre -empt this sale.

(3.) Mr. Mitra, appearing in support of the appeal, had very emphatically contended that in view of the provisions of the West Bengal Land Reforms (Amendment) Act, 1981, the preemptor is not entitled to any relief under Sec. 24 of the West Bengal Non -Agricultural. Tenancy Act as, the said Sec. stands impliedly repealed by the changes introduced in the provisions of the West Bengal Land Reforms Act (hereinafter referred to as the Principal Act) by the Amending Act, rendering the application non -maintainable. In this connection, Mr. Mitra has relied on a Division Bench decision of this Court in the case of Niranjan Khanna and Anr. v/s. Shyamal Kumar Mukherjee and Ors., 1988 (2) C.H.N 297 Mr. Bhattacharjce, appearing on behalf of the contesting Respondents/pre -emptors, had, however, argued that since the decision under appeal in the present case had been delivered long before the Amending Act had come into operation, the effect of the decision or the maintainability of the application cannot now be upset by application of the provisions of the Amending Act even though the same have been made retrospective from August 7, 1969. Mr. Bhattacharjee had endeavored to substantiate his submissions by reiterating the well -established canon of construction that the effect of a judgment/decree or pronouncement of the Court of law cannot be rendered nugatory by making a statutory provision retrospective as such a judgment/decree or judicial pronouncement creates a substantive right in favour of a party. Mr. Bhattacharjee in this connection had referred to the decisions reported in Hussein Kasam Dada v/s. State of M.P. : A.I.R.1953 S.C. 221 Garikapahti Veeraya v/s. N. Subbiah Chowdhury : A.I.R. 1957 S.C. 540 and Nagendra Nath Bose v/s. Mon Mohan Singha : 34 C.W.N. 1009. He had also referred to Sec. 63(2) of the West Bengal Land Reforms Act, as amended, which had been introduced by Sec. 53 of the Amending Act. We propose to deal with the contention above -mentioned first for the reasons which would be manifest from What follows hereinafter. Sub -section (2) of Sec. 1of the Amending Act lays down: