BEHARI LAL SANTAIA Vs. BISHNUPADA PATTANAYAK

JUDGEMENT

(1.) This application is under Article 227 of the Constitution of India by the applicant under section 8 of the West Bengal Land Reforms Act in the first court of Munsif at Tamluk. He made the application seeking pre-emption of a transfer made by opposite parties Nos.3 to 10 to opposite party No.1 on 31.10.72. Opposite party No.1 sold a portion of that land to his son, opposite party No.2. petitioner, who was not served with the notice of the first transfer, came to know of it the second transfer by the opposite party No.1 to opposite party No.2 was made, when opposite party No.2 started collecting building materials on the land with a view to constructing pucca structures. The petitioner filed his application for pre-emption on 26.5.73 against opposite parties Nos.1 to 10 on 21.6.73 the petitioner filed an application for a temporary injunction to restrain opposite parties Nos.1 and 2 from changing the character of the land and from raising any structure on it. To that the opposite party No.1 filed another petition for injunction on 11.9.73 making the same prayer against opposite parties Nos.2(ka), 2(kha) and 2(ga) after having added them in his petition. The learned Munsif has rejected this second petition by this order No.12 dated 14.9.73 and rejected the first petition filed on 21.6.73, by his order No.24 dated 19.2.74. The petitioner has moved this court against this order No.24 dated 19.2.74 filing this application under Article 27 of the Constitution.

(2.) The learned Munsif before whom the application for pre-emption has been filed has refused the prayer for temporary injunction made on 11.9.73 on the ground that he has no power under the West Bengal Land Reforms Act to grant an injunction under section 151 of the Code of Civil Procedure and secondly, on the ground that order of injunction, if any, granted against opposite parties Nos.1 and 2 would not be of any use as the petitioner's application for an order of injunction against opposite parties Nos. 2(ka), 2(kha) and 2(ga) has already been refused on 14.9.73 and has not been challenged in any superior court.

(3.) Mr. S. N. Ghorai, learned Advocate appearing for the petitioner, submits that the application for pre-emption has been filed before a Munsif and he has as such Munsif, all the powers under the Code of Civil Procedure including the powers under section 151 of the Code of Civil Procedure to grant injunction. Before the West Bengal Land Reforms (Amendment) Act, 1972 came into force, application for pre-emption under section 8 of the West Bengal Land Reforms Act to be hereafter called the Act, was to be filed before the Revenue Officer specially empowered by the State Government in that behalf. By the 1972 amendment the applications are now required to be filed before the Munsif having territorial jurisdiction. The present application was filed after the 1972 amendment came into force. It has been filed before a Munsif i.e. a Civil Court, he has all the powers under the Code of Civil Procedure. In support of his contention he has placed reliance on the case of Ram Chandra Agarwal and another v. The State of Uttar Pradesh and another in A.I.R. 1966 SC 1888. In that case the question that fell to be determined was whether a reference made to a civil court of competent jurisdiction under section 146 of the Code of Civil Procedure was a civil proceeding. Mudholkar, J speaking for the court held that the said reference was a civil proceeding observing as follows: