A.K. Mathur, CJ. - (1.) The short question involved in this reference is whether the 'Munsif' and 'District Judge' who decide the matter of pre-emption under sections 8 and 9 of West Bengal Land Reforms Act, 1955 (hereinafter referred to as Act of 1955) are the 'authority' under the West Bengal Land Reforms Tenancy Tribunal Act, 1997 (hereinafter referred to as Act of 1997) or not.
(2.) This question arose because of difference of opinion of two learned single Judges taking contrary view in the matter. The question involved in this matter is whether against the order passed by the District Judge under section 9 of the Act of 1955, a revision under section 115 of the Civil Procedure Code is maintainable or not in view of the provisions of the Act of 1997. By virtue of the provisions contained in sections 7 and 8 of the Act of 1997, jurisdiction of all Courts have been taken away and the same has been conferred on the Tribunal constituted under the Act of 1997, except the writ jurisdiction under Articles 226 and 227 of the Constitution and the same has to be exercised by the Division Bench of the High Court. Justice Bhattacharyya in the case of Kashinath Mondal & Ors. v. Bani Ballav Biswas & Ors., reported in 2001(2) CLJ 319 took the view that revision before this Court under section 115 of the Civil Procedure Code is not maintainable. As against this Justice P.K. Ray in the case of Sk. Samsul Huda & Ors. v. Mosharaf Hussain & Ors., reported in 2000(2) CHN 227 took the view that the provisions of the Act of 1997 do not oust the jurisdiction of the High Court to entertain revision under section 115 of the Civil Procedure Code. Therefore, on account of two conflicting opinions of the learned single Judges, Justice Alok Kumar Basu, has referred these matters to a Larger Bench to resolve the conflict of two single Bench judgment. As such the matter has come up before us by reference by Justice Basu to lay the correct position of law. 2. Brief facts of this case are that one Pashupati Adhikary filed two separate applications under section 115 of the Civil Procedure Code registered as C.O. No. 2567 of 1998 and C.O. No. 2568 of 1998 challenging the order of the learned Additional District Judge, 5th Court, Midnapore, passed in Miscellaneous Appeal No. 61 of 1995 arising out of pre-emption matter under section 9 of the Act of 1995. Both these revision applications were heard analogously. In the course of hearing the above referred two conflicting judgments were cited before the learned single Judge and the learned single Judge made a reference before this Court.
(3.) Before we proceed to decide the controversy involved in the matter, it will be relevant to mention the law bearing on the subject. As far as the question of pre-emption is concerned, it is to be decided under section 9 of the Act of 1955 and the power to decide such application has been conferred on the 'Munsif' and the 'Munsif', on such application being filed, will give notice to the parties and after taking necessary evidence, will decide the matter. Under section 9(6) appellate power has been conferred on the 'District Judge' having territorial jurisdiction over the matter. Therefore, all the pre-emption matters are to be decided by the 'Munsif' and appeal will lie to the 'District Judge' having jurisdiction over the area in which the land is situated. Section 9 of the Act of 1955 reads as under: "9. Revenue Officer to allow the application and apportion lands in certain cases.- (1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, ceases or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten percent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or share of the plot of land be transferred to the applicant and on such order being made, the portion or share of the plot of land shall vest in the applicant. (2) When any person acquires the right, title and interest of the transferee in such plot of land by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section (1) of section 8 on a co-sharer of a raiyat in a plot of land or a raiyat possessing land adjoining the plot of land or bargadar. (3) In making an order under sub-section (1) in favour of more than one co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or bargadar the Munsif may apportion the portion or share of the plot of land in such manner and on such terms as he deems equitable. (4) Where any portion of share of plot of land is transferred to the applicant under sub-section (1), such applicant shall be liable to pay all arrears of revenue in respect of such portion or share of the plot of land that may be outstanding on the date of the order. (5) The Munsif shall send a copy of his order as modified on the appeal, if any, under sub-section (6) to the prescribed authority for correction of the record-of-rights. (6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed. (7) Every appeal pending before an Additional District Magistrate at the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be disposed of by, the District Judge having jurisdiction in relation to the area in which the land is situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.";