BIDYADHAR MAITY Vs. HEMANTA KUMAR GIRI

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution against an order passed by a Munsif at Contai who returned the petition under Sec. 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 under Sec. 26(F) of the Act would still be maintainable if Sec. 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come into force and if, further, the provisions of Rule 4 of the West Bengal Estates Acquisition Act, 1953, have been withdrawn with respect to Sec. 26(F) of the Bengal Tenancy Act.

(2.) The kobala in this case was executed on April 30, 1963. On the date of the kobala Sec. 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, Sec. 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 Further, the Bengal Tenancy Act itself was repealed with effect from November 1, 1965.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 under Sec. 26(F) of the Bengal Tenancy Act or under Sec. 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 under Sec. 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 under Sec. 26(F) of the Act on the date the kobala took its effect. Thereafter, on October 20, 1963, Sec. 8 of the Land Reforms Act came into force and that Sec. also provided as follows:

(3.) Hence, Sec. 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 Sec. 8 right of pre -emption accrued, with regard to a transfer after Sec. 8 came into force. But with respect to a transfer which had taken place before the date on which the Sec. came into force, no right would accrue under Sec. 8. Therefore, on a grammatical interpretation of Sec. 8 of the Land Reforms Act, I cannot hold that a transfer in question would come within the purview of Sec. 8 of the Land Reforms Act. Hence, the coming into effect of Sec. 8 did not affect the Petitioner's right, already acquired, to apply for pre -emption under Sec. 20(F) of the Bengal Tenancy Act.