NARENDRA NATH GHOSH Vs. KRISHNAPADA MUKHOTI

JUDGEMENT

(1.) THIS is a petition under article 227 of the Constitution against an order of the Munsif returning a petition for presentation to the Revenue Officer, who, according to him, has jurisdiction to entertain the said petition. In my opinion, the learned Munsif is not wrong when he says that the Land Reforms Officer has jurisdiction to entertain it. But, when he says he has no jurisdiction to entertain it, he is wrong and. that is why, I am inclined to interfere. Let me, therefore, go into the merits of the matter. The sale in question took place on 23rd April, 1963. On 22nd October, 1963, a Notification was issued by the Government saying that section 8 of the Land Reforms Act, which relates to preemption would come into force. On 29th January. 1964, the present petition was filed. On 23rd August, 1964, Rule 4 under the Estates Acquisition Act was amended by omitting the figures and letter "26f" from that Rule. Thereafter, with effect from 1st November. 1965, the Bengal Tenancy Act was repealed. As the transfer took place on the 23rd April, 1963, the right of pre-emption accrued on that date and even if on 22nd October, 1963 a Notification was issued under section 6 of the Land Reforms Act, the right to proceed under section 2gf of the Bengal Tenancy Act was not repealed or affected in any manner. Section, 26f would operate because the transfer was made by a co-sharer to co-sharer where the incidents of the tenancy would be governed by Rule 4 of the Estates Acquisition Act, and the incidents of the Tenancy or, in other words, the terms and conditions of the Tenancy as under Rule 4 at that time would include section 26f of the Bengal Tenancy Act. Therefore, at the date when the transfer took place there was a tenancy, - the condition of which was that there would be a right of preemption to the co-sharer and by the Notification under section 8 such right of the co-sharer was not taken away. The Notification merely provided that after (he Notification, applications may be made before the Land Reforms authority Hence, in my opinion, the remedy of the co-sharer to apply for pre-emption was not barred by the finance of the Notification by which section 8 came into force. It is true, Rule 4 was subsequently amended. That matters little because it was amended after the application was filed and the remedy would continue inspite of that. It is further true that Bengal Tenancy Act was repealed but even then if some body had acquired any right to a remedy because of the provision of section 26f of the Bengal Tenancy Act read with section 6 (2) of the Estates Acquisition Act end Rule 4 of the Rules under the Estates Acquisition act, he would not be deprived of that remedy. Hence, the Civil Court also had jurisdiction to entertain the petition and the Rule is, therefore, made absolute. The order of the Trial authority is set aside. The matter is sent back to the Trial authority for decision according to law and according to the observations made above. The Rule is, therefore, made absolute. There will be no order for costs.