NIRAMJAN KHANRA Vs. SHYAMAL KUMAR MUKHERJEE

JUDGEMENT

(1.) THE application forpre-emption, giving rise to this appeal, was filed by the appellants in the court of the Sub ordinate Judge, Midnapore in September, 1979 under the provisions of Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949 and has been dismissed by the trial Judge in April, 1983 and the present appeal against that order has been filed in this court in May, 1983. A preliminary objection as to the maintainability of this appeal has been very seriously pressed by Mr. Shaktinath Mukherjee, the learned Counsel for the respondents and he has urged that even assuming agruendo that the application for pre-emption under Section 24 of the aforesaid Non-Agricultural tenancy Act was otherwise maintainable on the date when and in the Court in which the same was filed, the said application and the present appeal arising there from are no longer maintainable and have become almost nonest in view of the provisions of the West Bengal Land Reforms (Amendment) Act, 1981, which though having received the assent of the President only on March, 1986, is nevertheless operating retroactively with effect from August, 1969.

(2.) UNDER the law as it stood before the enactment of the Land Re forms (Amendment) Act, 1981, the non-agricultural tenancies including right of pre-emption in respect of transfers of non-agricultural lands were being regulated by the provisions of the Non-Agricultural Tenancy Act, 1949, while agricultural holdings including the right of pre-emption in respect of transfer of portions of such holdings were being governed by the provisions of the Land Reforms Act, 1955. It has not been disputed that under the provisions of the Land Reforms (Amendment) Act, 1981, all lands, whether agricultural or non-agricultural, would now come within the ambit of and would be regulated by the provisions of the Land Reforms Act of 1955, as amended by the Act of 1981. And accordingly, it has also not been disputed that if on the date when the present application for pre-emption was filed, the provisions of the Amendment Act of 1981 could be in effective operation, the present application would have to be filed under Section 8 of the Land Reforms Act providing for pre-emption and that too in the court of the Munsif only. It may be noted that the present application, as one under Section 24 of the Non-Agricultural Tenancy Act, was filed in the court of the Sub ordinate Judge as under that Section the application is to be filed in the Civil Court which would have pecuniary jurisdiction in respect of the amount of consideration for the impugned, transfer, while under Section 8 of the Land Reforms Act, ail applications for pre-emption, irrespective of the amount of consideration, are to be filed in the court of Munsif, that being the sole court designated for the purpose. Mr. Mukherjee has argued that even though in September, 1979 when the application for pre-emption was filed, and in April, 1983 when the same was disposed of by the Sub ordinate Judge and also in May, 1983 when the present appeal was presented in this Court, the provisions of the Amendment Act of 1981 were not in force, the Act having been assented to by the President, as late as in March, 1986, yet since on the receipt of such assent the provisions of the Amendment Act received far-flung retrospective operation with effect from August, 1969, it must and cannot but be held now that the application under Section 24 of the Non-Agricultural Tenancy Act could not be made in 1979 and the court of the Sub-ordinate Judge could not entertain it for want of jurisdiction, so much so that the entire proceeding culminating in this appeal has now to be treated as void ab initio. We would, therefore, require to have a rather close look at those provisions of the land Reforms (Amendment) Act, 1981t, which are material for our purpose as well as the relevant provisions of the Land Reforms Act, 1955, which the former seeks to amend and modify.

(3.) THE parent act, that is, the Land Reforms Act of 1955 originally consisted of 60 Sections. Section 1 thereof, after providing for the Short title in Sub-Section (1), provides in sub-Sections (2) and (3) as hereunder :-