ABU BOKKAR MOLLA Vs. MOKSED ALI PEADA

JUDGEMENT

(1.) THIS Rule is directed against the order of the Subordinate Judge in appeal whereby he dismissed the petitioner's appeal and affirmed the Munsif's order allowing the opposite parties' application under section 26f of the Bengal Tenancy Act for preemption. The only point raised by the petitioner is that the opposite parties have no right to preempt because they were Korfa tenants holding under Korfa tenancy. Whether a Korfa tenant has a right to pre-empt under the new dispensation contained in the West Bengal Estates Acquisition Act and the Rules made there under, has been the subject matter of a number of decisions in this Court. Before examining these decisions it will be desirable to keep in view some salient dates in connection with this application. No doubt the important date is the 14th April, 1956 which is the date of vesting of the estates and rights of the intermediaries under the West Bengal Estates Acquisition Act. The Kobala in question in this Rule by which the third opposite party transferred to the first opposite party is dated the 17th September, 1956. This Kobala however, was not registered until the 13th September 1961. On these dates, however, one thing is clear that the estate had vested before the transfer by the kobala. The importance of that fact lies in creating the status of the universal class of direct tenants, under the West Bengal Estates Acquisition Act. Two other dates should be noticed at this stage. They are dates in respect of the original Rule 4 of the West Bengal Estate Acquisition Rules relating to the terms and conditions under which an intermediary will hold land under section 6 (1) of the Act and the amended Rule 4. The original Rule 4 came into force on or about 28th May, 1954 ; the amended Rule 4 came into effect from the 7th September, 1962. The reason for noticing these dates is that the argument on behalf of the petitioner in support of the Rule is based on the fact that the amended Rule 4 which came into operation on the 7th September, 1962 introduced for the first time the right of pre-emption by expressly including the rights granted under section 26f of the Bengal Tenancy Act. Therefore, it is contended that before the amended Rule 4 came into force on the 7th September, 1962 the Korfa tenant in this case had no right to claim pre-emption. Plainly, this argument was rejected in (1) Nitai Chandra Das v. Sisir Kumar Das, 67 C. W. N. 633. There R. N. Dutt, J. comes to the conclusion that section 26f of the Bengal Tenancy Act is still applicable to the case of a tenancy held directly under the State Government after the vesting under chapter VI of the West Bengal Estates Acquisition Act. This decision overrules all the contentions made in that case that after the date of vesting there would no more be co-sharer tenants and as such, section 26f would be wholly inapplicable. The question of retrospective and prospective operation of Rule 4 also came under notice in that decision at page 336 of that report although no decision was actually rendered on that point. But the more important point on which this decision is against the contention of the petitioner is in the interpretation of the words ''same terms and conditions" in Rule 4 and the Court came to the following conclusion at page 337 :-

(2.) AGAIN a Division Bench decision of this Court in (2) Abharan Chandra Saha v. Sanat Kumar Sen, 68 C. W. N. 574, sets out at page 581-82 four reasons which induced the Bench to give a wider meaning to the expression 'terms and conditions' in Rule 4 as it stood unamended, observing "that the intention was always otherwise, appears from the amendments made in Rule 4 on September 7, 1962, which expressly conferred the right of pre-emption on occupancy raiyats coming into being under West Bengal Estates Acquisition Act," The same Bench took the same view also in (3) Jyotish Chandra Das v. Dhananjoy Bag, 68 C. W. N. 1055. In an earlier decision a single Bench of this Court, in (4) Panchu Sundari Dassi v. Haripada Biswas, 65 C. W. N. 354, came to the conclusion that on the vesting of the statutory raiyati rights with the State Government under the West Bengal Estates Acquisition Act, the status of the holders particularly of the under-raiyat became elevated to that of the raiyat. This decision therefore, came to the conclusion that under the Bengal Tenancy Act the holders of, under-raiyati rights acquired the status of the raiyats and the holding in question became raiyati holding. As against the trend of all these decisions Mr. Panda, appearing for the petitioner, has an uphill task. He, however, relies on the decision of a learned single Judge in (5) Santosh Kumar Duary v. Upendra Nath Pramanik, 45 C. W. N. 790, where Henderson, J. holds that a co-sharer of an underraiyati holding with occupancy right has no right of pre-emption as against his co-sharer transferor under section 36f (as amended) read with section 48g of the Bengal Tenancy Act. This decision was long before the West Bengal Estates Acquisition Act, 1953.

(3.) IN support of his thesis Mr. Panda argues that the rights of the occupancy raiyats are provided in Chapter V of the Bengal Tenancy Act which is not even now repealed. In particular, he relies on section 23a of the Bengal Tenancy Act to indicate incidents of occupancy raiyats. The next step in the syllogism of his argument is that section 26f of the Bengal Tenancy Act only relates to such occupancy right. A Korfa tenant not being an occupancy raiyat, therefore, at least cannot claim the right of pre-emption within the meaning of section 26f of the Bengal Tenancy Act. Rights, incidents and possession of the occupancy raiyat under the Bengal Tenancy Act have now to be re-examined in the new light of the west Bengal Estates Acquisition Act. The Act itself makes provision for the acquisition of the estates and rights of intermediaries as well as of certain rights of intermediaries as well as of certain rights of raiyats and under-raiyats. One of the main objects of the Act is not only to eliminate the interests of all zaminders and other intermediaries by acquisition on payment of compensation but also to permit the intermediaries to retain possession of their khash lands up to a certain limit and to treat them as tenants holding directly under the State. The special status of an occupancy raiyat which was the contribution and creation of the Bengal Tenancy Act, therefore, no longer exists in that context. To make therefore, a distinction between the different classes of tenants under the Bengal Tenancy Act or in particular, to make a distinction in this case between an occupancy raiyat and a Korfa tenant, would be really meaningless in the present statutory context. There will obviously, be no principle on which such difference or distinction could be justified. If everyone is holding directly under the State as a tenant, then introduction of difference and distinction with different incidents and rights, some with the right of pre-emption and others without them, would be to enter into a logical contradiction.