NIRANJAN KHANA v. Shyamal Kumar Mukherjee — 1988 DIGILAW 248 (CAL)

JUDGMENT 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. 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 :- "1. 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 :- "1. (2) It extends to the whole of West Bengal except the areas 'described in schedule 1 of the Calcutta Municipal Act, 1951, as deemed to have been amended under Section 549 thereof, (3) This Section shall come into force at once and the remaining provisions of this Act, in whole or in part, shall come into force on such date or dates and in such District or part of a District as the State Government may from time to time by Notification in the Official Gazette specify". 3. THE scheme for the extent and commencement for the provisions of the Act, which should be classed as a conditional legislation, is that while all the provisions thereof were extended to the whole of West Bengal and Section 1 was also enforced with immediate effect the remaining provisions, that is the remaining 59 Sections were to come into force on such dates and in such areas as would be specified for the purpose in the relevant notifications to be issued by the State Government from time to time. 4. IT is not disputed that those Sections of the Land Reforms Act, 1955, with which we are concerned in this case, namely, Sections 2, 3, 8, 9 and 10 have all been en forced by appropriate Notifications under Section 1 (3) of the Land Reforms Act of 1955 and, as already noted, all these provisions, until the Amendment Act of 1981, dealt with agricultural lands only. The definitions of the expressions 'land' and Vaiyat' in clauses (7)and (10) of Section 2 and the provisions; of Section 3, as in the original act, were a hereunder : - "2. (7) 'land' means agricultural land. . . . . . but does not include tank. (10) 'raiyat' means a person who holds land for purpose of agriculture. 3. The provisions of this Act shall have effect notwithstanding anything in any other law of any custom or usage or any contract, expressed or implied, inconsistent with the provisions of this Act. (7) 'land' means agricultural land. . . . . . but does not include tank. (10) 'raiyat' means a person who holds land for purpose of agriculture. 3. The provisions of this Act shall have effect notwithstanding anything in any other law of any custom or usage or any contract, expressed or implied, inconsistent with the provisions of this Act. " By Sections 5 and 6 of the Amendment Act of 1981, these two clauses (7) and (10) of Section 2 and the provisions of Section 3 have been substituted as hereunder : - "2. (7) 'land' means land of every description and includes- tank, tank-fishery, home stead. . . . . and any other land. . . . (10) 'raiyat' means person or an institution holding land for any purpose whatsoever. 3. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, expressed or implied, or agreement or decree or order or decision or award of a Court, tribunal or other authority". 5. . IT is, therefore, obvious that under the provisions so substituted by the Amendment Act of 1981, non-agricultural lands would become 'lands' and the holders thereof would become 'raiyats' under and with the meaning of the Land Reforms Act of 1955 and in view of the over-riding effect given to the provisions of the Land reforms Act under Section 3, even as it stood before, and now further fortified by Section 3 as substituted, right of pre-emption in respect of all lands, agricultural or non-agricultural, would be governed and regulated by Sections 8, 9 and 10 of the Land reforms act of 1955. 6. THE Amendment Act of 1981 has also, by its Section 53, added several new Sections after Section 60 of the Original Act and the new Section 63, so added, reads as hereunder : - " -63. (1) With effect from the date of coming into 'force' of the west Bengal Land Reforms (Amendment) Act, 1981, in any district or in any area of Calcutta, such provisions of the West Bengal non-Agricultural Tenancy Act, 1949, as are repugnant to the provisions of this Act, shall cease to have effect in that district or area. (1) With effect from the date of coming into 'force' of the west Bengal Land Reforms (Amendment) Act, 1981, in any district or in any area of Calcutta, such provisions of the West Bengal non-Agricultural Tenancy Act, 1949, as are repugnant to the provisions of this Act, shall cease to have effect in that district or area. (2) Notwithstanding the provisions of sub-section (1), any proceeding pending on the date of such earning into force before any authority appointed under the West bengal Non-Agricultural Tenancy Act, 649 or before any Court shall be continued or disposed of as if the West Bengal Land Reforms (Amendment) Act, 1981. had not come into force in the district or area". Relying very strongly on the provisions of this new Section 63, and particularly on sub-Section (2) thereof Mr. Mukherjee has very seriously urged that once the Amendment Act of 1981 has come into force the only proceeding for pre-emption of non-agricultural land initiated under Section 24 of the West Bengal Non-Agricultural Tenancy Act of 1949 that can still be continued and disposed of in accordance with that Section 24 is a proceeding that was pending before Court on the date of corning into force of the West Bengal Land Reforms (Amendment) Act, 1981. And drawing our attention to section 1 (2) of that Amendment Act of 1981, providing that "the provisions of this Act shall be deemed to have come into force on the 7th day of August, 1969", Mr. Mukherjee has submitted that the present proceeding for pre-emption under Section 2k of the Non-Agricultural tenancy Act having been initiated in September, 1979, and thus not being pending on the 7th August, 1969, could not be proceeded with under and in accordance with the provisions of the West Bengal Non-Agricultural tenancy Act and that any such proceeding, like the present one, initiated and proceeded with under Section 24 of the Non-Agricultural Tenancy Act after 7th August, 1969 would be void as without jurisdiction and, therefore, no appeal there from can lie to this Court under Section 24 (9) of the Non-Agricultural Tenancy Act. 7. IT is true that the Amendment Act of 1981, whereby Section 63 has been sought added to the parent Act of 1955, provides in Section 1 (2)that the provisions of the Act "shall be deemed to have come into force on the 7th August, 1969". 7. IT is true that the Amendment Act of 1981, whereby Section 63 has been sought added to the parent Act of 1955, provides in Section 1 (2)that the provisions of the Act "shall be deemed to have come into force on the 7th August, 1969". As a result, the moment the Amendment Act of 1981 has become operative on receipt of the Presidential assent on 24. 3. 1986, the hew Section 63 has stood added to the Land Reforms Act of 1955 and shall be deemed to have been so added on and from 7th August, 1969. But, as already noted, Section 1 (3) of the main Act of 1955, to which Section 63 shall stand so added, provides that all other Sections of the Act shall come into force only on the issuance of a Notification to that effect by the State Government in the Official Gazette. It has been conceded by mr. Mukherjee that no such Notification under Section 1 (3) of the main act in respect of the newly added Section is traceable and we have also not been able to trace such a one in spite of queries made by the office of this Court to that of the department of Land Revenue. Would Section 63, so newly added to the original Land Reforms Act of 1955, come into effective operation without any such Notification under Section 1 (3) of the main Act? Mr. Mukherjee's answer is emphatically affirmative and he has very strongly urged that in view of the categorical provisions of section 1 (2) of the Amendment Act of 1981 to the effect that "the provisions of this Act shall be deemed to have come into force on the 7th August, 1969", all the provisions added by the Amendment Act of 1981 to the parent act of 1955 have automatically come into force by that legislative fiat and that too retrospectively with effect from 7th August, 1969 and, therefore, no further Notification under Section 1 (3) of the main Act can at all necessary in view of the specific mandate of the Legislature in Section 1 (2) of the Amendment Act of 1981. Mr. Mr. Mukherjee has contended that if those new Sections were only sought to be added to the parent Act without enforcement and were or are still to be enforced by "notifications under section 1 (3) of the main Act, the provisions in Section -1 (2) of the Amendment act of 1981, providing for such, enforcement with retrospective effect would make no sense and would become uselessly redundant. But while we can appreciate the force of this argument, we are inclined to think that a different view is also reasonably possible. 8. AS already noted the West Bengal Land Reforms Act was originally enacted with 60 Sections in 1955. Section 1 (1) of the Act declares the Short title, Section 1 (2) extends the enactment throughout the State, except Calcutta and section 1 (3) provides that Section 1 shall come into force at once but that "the remaining provisions of this Act. . . shall come into force on such date or dates. . . . as the State Government may from time to time by Notifications in the Official Gazette specify". Various such, Notifications have been issued from time to time, bringing large number of its remaining provisions into force. Now this Land Reforms (Amendment) Act of 1981 has been passed, which, as already noted, has been assented to by the President in March, 1986. Section 1 (1. of this Amendment Act of 1981 declares the Short Title, of the Amendment Act and Section 1 (2) provides that the provisions of this Act, shall be deemed to have come into, force on the 7th day of August, 1969". This Act seeks to amend various existing Sections of the principal Act of 1955 and to add several new Sections thereto. Section 53 of the Amendment Act of 1981 provide that "after section 60 of the principal Act, the following Sections shall be inserted" and one such Section is Section 63 which is quoted thereafter. Now let, us assume that Section 1 (2) of the Amendment Act of 1981, instead of providing that "the provisions of this Act shall be deemed to have come into force on 7th day of August,. 1969", has provided that "the provisions of. this Act shall come into force at once". Now let, us assume that Section 1 (2) of the Amendment Act of 1981, instead of providing that "the provisions of this Act shall be deemed to have come into force on 7th day of August,. 1969", has provided that "the provisions of. this Act shall come into force at once". The result would have been that section 53 of the Amendment Act would have come into immediate operation on receipt of the assent of the President on 24th March, 19s6 and, as a result, Section 63 would have immediately stood added to the principal Land Reforms Act of 1955 and would have then become one of the "remaining provisions" within the meaning of Section 1 (3) of the principal act and in that case the new Section 63 would have come into force only on such date as would have been specified by a Notification under Section 1 (3) of the principal Act. In other words, even if Section 1 (2) of the Amendment act of 1981 provided that the provisions of the Amendment Act "shall come into force at once", that would have only meant that the provisions of the Amendment Act, including Section 53, whereby- the new Section 63 was sought to be added to the principal Act of 1955, were to "come into force at once" with the result that the new section 63 would have stood added at once with the enforcement of the Amendment Act of 1981. What would have come into force at once is Section 53 of the Amendment act, that is, the addition of the new Section 63 to the principal Act of 1955. The force of the Amendment Act, if enjoined to come into force at once, would in respect of the new Sections sought to be added, have stood spent up and exhausted once the new Sections, which that Act sought to add, stood added to the principal Act. And once so added, the newly added Sections, including Section 63, would have become the "remaining provisions" of the principal Act of 1955 within the meaning of Section 1 (3)of the principal Act and would accordingly have required Notifications under that Section 1 (3) for their coming into force. And once so added, the newly added Sections, including Section 63, would have become the "remaining provisions" of the principal Act of 1955 within the meaning of Section 1 (3)of the principal Act and would accordingly have required Notifications under that Section 1 (3) for their coming into force. To put it in other words, the expression "the provisions of this Act" in Section 1 (2) of the Amendment act of 1981 would have meant Section 53 of the Amendment Act, whereby new Sections were sought to be added to the principal Act, and what would have come into force at once was Section 53 and not the new Sections themselves, which were sought to be added by Section 53. But once so added the added Sections would have become the provisions of the principal Act of 1955, which, under Section 1 (3) thereof, would have required Notifications for their enforcement. The moment the Amendment Act of 1981 came into force, which was to come into force at once. Section 63 at once stood transposed to the principal Act of 1955 and would not be a provision of "this Act" within the meaning of Section 1 (2) of the Amendment Act of 1981. To put it differently, the result of the combined and harmonious reading of Section 1 (3) of the principal Act of 1955, providing that its provisions shall come into force only on Notifications to that effect and of Section 1 (2) of the amendment Act of 1981, providing that its amendatory provisions shall come into force at once, would have been that the provisions of the Amendment Act, whereby new Sections were sought to be added, would have come into force at once, but not the provisions so added, which would have still required Notifications under Section 1 (3) of the principal act. If that is the position in law, then the provisions, of Section 1 (2)of the Amendment Act of 1981 providing that "the provisions of this Act shall be deemed to have come into force on 7th day of August, 1969", instead of providing for coming into force at once shall make no difference. Section 53 being a provision of "this Act" within the meaning of Section 1 (2) of the Amendment Act of 1981, shall be deemed to have come into force on the 7th day of August, 1969. Section 53 being a provision of "this Act" within the meaning of Section 1 (2) of the Amendment Act of 1981, shall be deemed to have come into force on the 7th day of August, 1969. As a result, the new Section 63 sought to be added to the principal Act Of 1955, by Section 53 of the Amendment act, shall be deemed to have been added on and from 7th August, 1969. But even in spite of such addition with retrospective effect, Section 63 would nonetheless be a provision within the meaning of the expression "remaining provisions" in Section 1 (3) of the principal Act and would accordingly require Notification there under, not for the addition, but for its coming into force. The addition, that is the fact of the new Sections being added to the principal Act, shall take effect in accordance with Section 1 (2) of the Amendment Act with effect from 7th August, 1969; but not the added provisions themselves, which, on being so added to the principal Act, shall come into force in accordance with Section 1, (3) of the principal Act on issuance of appropriate Notifications under that Section 1 (3. We have, therefore, grave doubts as to whether Section 63 and other new Sections sought to be added by the Amendment Act of 1981 can or have come into force without appropriate Notifications under Section 1 (3) of the Principal act, notwithstanding that the provisions of the Amendment Act, whereby these new Sections have been added, had been given very wide and far-flung retrospective enforcement. As we have already indicated, the addition of these provisions may have the desired retrospective operation, but not the added provisions themselves in the absence of appropriate Notifications under Section 1 (3) of the principal Act of 1955. 9. BUT we, however, do not propose to finally decide the question as to the enforcement of Section 63 as the appeal can be disposed of without determining that question. As already noted, clauses (7) and (10) of Section 2 of the principal Act have been substituted by new clauses (7) and (10)and Section 3 of the principal Act has also been substituted by a new Section 3 by the Amendment Act of 1981. As already noted, clauses (7) and (10) of Section 2 of the principal Act have been substituted by new clauses (7) and (10)and Section 3 of the principal Act has also been substituted by a new Section 3 by the Amendment Act of 1981. As already indicated, if these provisions so substituted by the Act of 1981 have come into force with effect from 7th August, 1969, as enjoined by Section 1 (2) thereof, all non-agricultural lands shall be deemed to have been governed by the provisions of the Land reforms Act of 1955 from that date and an application for pre-emption in respect of such land shall be deemed to have been regulated by Section 8 of the Land Reforms Act of 1955 and not by Section 24 of the Non-Agricultural tenancy Act of 1949. The provisions of Section 24 of the Non-Agricultural Tenancy act are inconsistent with the provisions of Section 8 of the Land Reforms Act in several respects. For example, under the former section, applications are to be filed in such Civil Courts as would have pecuniary jurisdiction in respect of the amounts of consideration and such amount has got to be deposited together with compensation at the rate of 5% of such amount; but under the latter Section, all applications are to be filed in the Court of Munsif only irrespective of the amount of consideration and such amount has got to be deposited together with a further sum of 10% of such amount. The former Section does not recognise right of pre-emption on the ground of vicinage, while the latter Section does. There are other inconsistencies also and that being so, once non-agricultural lands have come within the purview of the Land Reforms Act in view of the provisions of the Amendment Act of 1981, the provisions relating to pre-emption, under Sections 24, 25 and 26 of the Non-Agricultural Tenancy act, 1949 would stand over-thrown and out-weighed by the provisions of sections 8, 9 and 10 of the Land Reforms Act of 1955. 10. IT is not disputed that Section 2 and Section 3 of the principal land Reforms Act of 1955 have been duly enforced by appropriate Notifications under Section 1 (3. Once these Sections were so enforced, the new provisions substituted in their places would no longer require any further notification under Section 1 (3. 10. IT is not disputed that Section 2 and Section 3 of the principal land Reforms Act of 1955 have been duly enforced by appropriate Notifications under Section 1 (3. Once these Sections were so enforced, the new provisions substituted in their places would no longer require any further notification under Section 1 (3. The expression "substituted" in a statutory provision, whereby an earlier provision is substituted by another new provision virtually connotes repeal and re-enactment, though, as pointed out by the supreme Court in Stale of Maharashtra v. Central Provinces Manganese ( AIR 1977 SC 879 at 884-885), the two steps may not be severable, but may be an integrated process. Substitution of one statutory provision by another, implying thereby a repeal of the former and re-enactment of the latter would attract the provision of Section 8 of the General Clauses Act and, in the case at hand, the corresponding provisions of Section 10 of the bengal General Clauses Act, which provides inter alia that "where any West bengal Act repeals and re-enacts with or without modification any provision of a former enactment, the references" in any other enactment or in any instrument to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted". Therefore, since clauses (7) and (10) of Section 2 and also Section 3, as they stood, have been repealed and have been re-enacted in the new clauses (7) and (10) of Section 2 and new Section 3, references to all the earlier provisions in the Notifications already issued under Section 1 (3), which are obviously "instruments" within the meaning of Section 10 of the Bengal general Clauses Act, shall be construed as references to the new re-enacted provisions. The only reported decision on this point that we are aware of is the Division Bench decision of the Bombay High Court in Emperor v. Rayangouda Lingamgouda (AIR 1944 Bombay 259), where it has been held, with reference to Section 8 of the Central Clauses Act that "the effect of substitution must. . . be the same as the effect of a repeal followed by re-enactment with modification within the meaning of Section 8 (1)" and that "it is mere juggling with words to say that it does not amount to a. repeal and re-enactment". . . be the same as the effect of a repeal followed by re-enactment with modification within the meaning of Section 8 (1)" and that "it is mere juggling with words to say that it does not amount to a. repeal and re-enactment". We would accordingly hold that the substituted provisions of Clauses (7) and (10 of Section 2 and of Section 3 would not require any further Notification for their enforcement and, therefore, shall be deemed to have come into force on and with effect from 7th August, 1969, as enjoined under Section 1 (2) of the Land Reforms Act of 1981, whereby those have been substituted. We would, therefore, hold further that even though the present application for pre-emption was maintainable under Section 24 of the Non-Agricultural Tenancy Act in 1979 and in the court of the Sub ordinate Judge, yet as a result of retrospective operation of the Land Reforms (Amendment) Act of 1981, with effect from 7th August, 1969, the application could no longer be entertained or proceeded with under Section 24 of the Non-Agricultural Tenancy Act and in the Court where it was filed and was required to be filed under Section 8 of the Land reforms Act of 1955 and in the court of the Munsif having territorial jurisdiction. But when in 1979 the appellants filed the present application giving rise to this appeal, they could not obviously file the same under Section 8 of the Land Reforms Act and in the court of the Munsif, as all these retrospective changes in the law have been brought about by the Amendment act of 1981, which again has received the Presidential assent only in March, law can never require a party to do the impossible - Lex Non ad Impossibilia - a party should not be penalised for not doing something which no one could do at the relevant time, namely, to file an application under a Law which could not at all apply and in a court specified by that law. We are accordingly of the view that for the ends of justice, the appellant petitioners must be given an opportunity to prosecute their application for pre-emption in accordance with the provisions of Sections 8, 9and 10 of the Land Reforms Act of 1955, as amended by the Amendment Act of 1981 and that a straightway dismissal of this appeal on the ground that the application under Section 24 of the Non-Agricultural Tenancy Act, giving rise to this appeal, though maintainable at the time when it was filed, has thereafter ceased to be maintainable with retrospective effect from before that date, would cause failure of justice. 11. WE accordingly propose to transfer the application for pre-emption, giving rise to this appeal, to the court of the Munsif having territorial jurisdiction with a direction to treat the same as one filed under Section 8 of the Land Reforms Act of 1955, as amended by the Amendment Act of 1981 and to try and dispose of the same in accordance with the relevant provisions of that Act. The provisions of Section 24 of the Code of Civil procedure may not be strictly available to us for the purpose, for under that Section what is to be transferred is the whole of the proceedings pending before us; but since we do not propose to transfer this appeal pending before us, but only the application which has given rise to this appeal, the provisions of Section 24 of the Code of Civil Procedure may not be of assistance. But we propose to do so in exercise of our power of superintendence under Article 227 of the Constitution. But we propose to do so in exercise of our power of superintendence under Article 227 of the Constitution. If on the date when a party initiated a proceeding, he did it under the proper law and in a proper forum, but a subsequent change in the law with retrospective operation now requires that he ought to have filed that proceeding under some other law and in some other forum, which he could in no way do under the law operating at the time of the commencement of the lis, then there should be no doubt that the case is eminently and evidently a proper one where we should transfer the proceeding to the proper forum for disposal according to law, if the from in which the lis was initiated and the forum in which we propose to transfer the same are both subject to our power of superintendence under article 227 of the Constitution. We would, therefore, in exercise of the powers vested in us under Article 227 and all other powers enabling us in this behalf direct that the application for pre-emption filed by the appellants under Section 24 of the Non-Agricultural Tenancy Act be transferred to the Court of Munsif having territorial jurisdiction and, as already indicated, would direct further that the learned Munsif shall treat the same as the under Section 8 of the Land Reforms Act and would proceed to dispose the same accordingly. 12. ONE thing, however, would require clarification. As already noted, under Section 24 (2) of the Non-Agricultural Tenancy Act, the applicants were required to deposit at the time of making the application the of consideration together with a further amount as compensation a rate of 5% of such amount, while under Section 8 (1) of the Land Reform act, the amount to be deposited is the amount of consideration together with a further sum of 10% of such amount. But it must be noted that while section 24 (2) clearly provides that on failure to deposit the requisite amount, "the application shall be dismissed", there is no such provision in Sections 8, 9 and 10 or any where else in Land Reforms Act providing that failure to make such deposit at the time of making such application shall entail dismissal of the application. It is true that a Division Bench of this Court in Nurual Hossain v. Mihilal (AIR 1948 Calcutta 144) has ruled, under the corresponding provisions of Section 26f of the Bengal Tenancy Act that an application for pre-emption shall be dismissed if the deposit contemplated by that Section was not made at the time of making application; but that was because of the clear provisions in Section 26 (F) (2) of the Bengal Tenancy act, analogous to Section 24 (2) of the Non-Agricultural Tenancy Act, clearly enacting that if the required deposit was not made at the time of making the application, the application was to be dismissed. The conspicuous absence of any such provision in the Land Reforms Act of 1955 providing for dismissal of an application for pre-emption for failure to make the deposit along with the application irresistibly demonstrates that such failure to deposit can not warrant the dismissal of the application. Even under the provisions of Section 24 of the Non-Agricultural Tenancy Act, another Division bench of this Court has held in Prabartak Jute Mills v. Anila Devi (59 Calcutta Weekly Notes 939) that the time for making the application can be taken to mean the time of actual moving of the application and not the time of filing the application. The learned Munsif, to whom the application shall stand transferred under our order for disposal must note that nothing should prevent the appellants to make a deposit of the required amount at the time when they would be moving this application before him and he should, on receipt of the records of this case, fix, with notice to the parties, a reasonable period for making such further deposit by the appellants. Now that we are transferring the application for pre-emption to the court of Munsif for trial afresh, we would like to make some observations about a point of law involved in this case so that the learned Munsif may dispose of the matter in the light of those observations and we have decided to do so as we have felt that the Sub ordinate Judge, who passed the impugned order, was under some confusion an that point. The application has been dismissed by the Sub ordinate Judge on the sole ground that as pursuant to the disputed transfer, the transferee already obtained mutation in his name with allotment of separate rental, the co-sharership, which was the foundation for the application of pre-emption was no longer in existence to enable the petitioners to enforce pre-emption. 13. IT is well-settled that the legal character of the pre emptor, on the basis of which he seeks to enforce pre-emption, must not only exist at the time of the impugned transfer and also at the time of the initiation of the proceeding, but must also continue to exist till the date of the order or decree for pre-emption. No citation should at all be necessary for so well-settle a proposition too firmly established to admit any dispute; but' in deference to the wise ancient dictum not to advance a theory without any authority (Namulang Likhyate Kinchit),- reference may be made to the decision of the Privy ''council in Hans Nath v. Ragho Prasad (AIR 1932 Privy council, 57) and to the decisions of the Supreme Court in Bhagawan Das v. Cheta Ram ( AIR 1971 SC 369 ) and in Rikhi Ram v. Ram Kumar ( AIR 1975 SC 1869 . There should, therefore, be no doubt that in order to succeed in enforcing pre-emption on the ground of co-sharership, the appellants-petitioners were to show that they were co-sharers on the date of the impugned sale, on the date of the initiation of this lis and that they continued to be so on the date of the order under appeal. 14. BUT we, however, have our doubts as to whether a pre-emptor would lose his legal character of co-sharer ship solely on the ground that the pre-emptee, i. e., a transferee from the other co-sharer, has, on the strength of the impugned transfer in his favour, been able to obtain mutation of his name and fixation of separate rental, without the consent or knowledge of, without any reference to, and entirely behind the back of the pre-emptor. We would like to think that co-sharership of one co-sharer in the tenancy can not be brought to an end by any unilateral act of the other co-sharer, or any unilateral act of the landlord or even by any action of the other co-sharer and the landlord acting conjointly, but without any reference to the co-sharer first mentioned. A pre-emptee can not obtain mutation of his name and splitting of the rental behind the back of and without any notice to the pre-emptor, and even though he manages to do so, that, by itself, can not operate to deprive the pre-emptor of his legal character of co-sharer ship and to disentitle him from enforcing pre-emption. In the supreme Court decisions in Bhagawan Das (supra) and in Rikhi Ram (supra), the pre-emptor proceeded to enforce pre-emption against the pre-emptee in his character as the tenant under the vendor of the pre-emptee-transferee, but in both the cases the pre-emptee could obtain decrees for eviction against the pre-emptor-tenant before any order could be passed in the preemption proceeding initiated by him and in Bhagan Das (supra), the pre-emptee could even recover possession in execution of the decree for eviction. It has accordingly been held by the Supreme Court in both. the cases that the tenant-pre-emptor thus ceasing to be the tenant before the pre-emption cases could be disposed of and being thus divested of the legal character which alone could enable him to proceed with pre-emption, was no longer entitled to pre-emption. It should be noted that in both the cases, the pre-emptor-tenant being the opposite party-defendant to the suits for eviction was obviously bound by the decree for eviction divesting him of his legal character before any order for pre-emption could he passed and, therefore, the Supreme Court decision in Bhagawan Das (supra) and in Rikhi Ram (supra)furnish no answer to the question as to whether a pre-emptee can, by obtaining mutation and allotment of separate rental in his name unilaterally and without any notice to and behind the back of the pre-emptor, divest the pre-emptor of his legal character of co-sharer ship and thus disentitle him from proceeding with pre-emption. It is true that there. It is true that there. are high authorities, both judicial and textual, for the view that the right of pre-emption being a weak right can be defeated by all legitimate methods", " is a weak right and is rot looked upon with favour by Courts" and "a person is entitled to steer clear of the law of pre-emption by all lawful means", and may "defeat the law of pre-emption by any legitimate methods". It is not always easy to appreciate these oft-repeated jargons. The right of the State to impose taxes or to acquire private property is a soverign right and the same does not become a weak right because the assessee or the land-owner may avoid or resist the imposition of taxes on him or the acquisition of his properties by all lawful means and legitimate methods. It should be noted that the, right of pre-emption by co-sharers, whether statutory or customary, has been up held' by the supreme Court in Bhau Ram v. Baij Nath ( AIR 1962 SC 1476 ) and in Sant Ram v. Labh Singh ( AIR 1965 SC 314 ) as constitutionally valid and not violative of Article 19 (1) (f) of the Constitution. And it should also be noted that article 19 (l) (f) also now stands deleted by the Constitution (44th Amendment)Act, 1978. It is also apparent from the statutory provisions relating to right of pre-emption, as enacted in Section 24 of the Non-Agricultural Tenancy act or Section 8 of the Land Reforms Act, that pre-emption has been made available almost as a matter of course and once a person possessing the. requisite legal character makes such an application within time and deposits the requisite amount, the Court can not but order pre-emption and has almost no discretion in the matter. We do not know how such a right, granted by the statutes and upheld by the Supreme Court and available almost as a matter of course, can be labelled as a weak right simply because enforcement of such a right, like all other rights, may be avoided or resisted by all lawful means and legitimate methods. 15. We do not know how such a right, granted by the statutes and upheld by the Supreme Court and available almost as a matter of course, can be labelled as a weak right simply because enforcement of such a right, like all other rights, may be avoided or resisted by all lawful means and legitimate methods. 15. ONCE it is accepted, as it has got to be, that the right of preemption is a legal right and a co-sharer lawfully possesses that right as incidence of his property, and since it is well-settled that unless the relevant law expressly so provides, rules of natural justice require that no one can be adversely affected in his right, liberty or property without an opportunity of being heard, and since we do not find any such express provisions in the relevant law, we are inclined to think that the right of a pre-emptor, can not be affected or defeated by any action, private, judicial or administrative, taken without his knowledge and without notice to him and behind his back. The principle is too well settled to admit any doubt, but still following the ancient dictum "namulang Likhyate Kinchit", reference may be made to the decisions' of the Supreme Court in Sangram Singh v. Election tribunal ( AIR 1955 SC 425 at 429) and to State of Orissa v. Binapani Dei ( AIR 1967 SC 1269 at 1272) as authorities for the view that the principle of natural justice requires that men should not be condemned unheard. that decisions should not be reached behind their backs, that proceedings that affect their lives and properties should not continue in their absence and that not only judicial or quasi-judicial, but even administrative order, which involves civil consequences, must be made consistently with the rules of natural justice. The Court of, Munsif, to which we are transferring the application for pre-emption for adjudication afresh, should consider as to whether mutation and allotment of separate rental obtained by the pre-emptee in the facets and circumstances of this case, can legally affect the right of the pre-emptor in the light of our foregoing observations. The unreported decision of the learned single Judge of this Court in Nemai chandra bera v. Kartick Chandra Bera (Civil Rules Nos. 2181 - 21s3) of 1978, decided on 5. 7. The unreported decision of the learned single Judge of this Court in Nemai chandra bera v. Kartick Chandra Bera (Civil Rules Nos. 2181 - 21s3) of 1978, decided on 5. 7. 79), on which the court below has placed strong reliance, does not appear to have considered the matter from this point of view and therefore, can not be of any assistance in deciding this question. But the earlier single judge decision) in Samarendra v. Basanta (1973 - 1 Calcutta Law Journal 299) has, however, clearly ruled that mere mutation and payment of separate rental by the pre-emptee would not, by themselves, result in disruption of the co-sharership in the tenancy or the holding to out-weigh the application of the law of pre-emption. 16. NOW that we are directing the Court of Munsif to treat and dispose of the present application as one. made under Section 8 of the Land Reforms act, 1955, we would also like to draw its attention to another aspect that might be involved in this a mtter. Under Section 8 of the Land Reforms act, a right of pre-emption is available not only to a co-sharer raiyat of the holding, but is also available to any raiyat possessing land adjoining such holding. It is true that such a right of pre-emption on the ground of vicinage was held to be ultra vires by. the Supreme Court in Bhau Ram (supra) and also in Sant Ram (supra. But since the Land Reforms Act of 1955 has been enlisted in the Ninth Schedule of the Constitution of India, the same can no longer be challenged as violative of the provisions of the constitution in view of Article 31b of the Constitution. It would, therefore, be for the learned Munsif to consider that even if the appellants-applicants have ceased to be co-sharers, whether they are still entitled to maintain the application for pre-emption under Section 8 of the Land Reforms Act as raiyats possessing adjoining lands. We must not, however, be taken to have expressed any opinion on the merits of this question in this case. We must not, however, be taken to have expressed any opinion on the merits of this question in this case. We would accordingly allow the appeal, set aside the impugned order of the court below and direct the records of the case to be transmitted forthwith to the learned District Judge, Midnapore with a direction that the application for pre-emption be placed before a court of Munsif having the requisite territorial jurisdiction and as we have already. indicated the learned Munsif shall proceed to determine that application afresh as one filed under the provision of Section 8 of the Land Reforms Act of 1955, as amended by the Amendment Act of 1981 in accordance with law' and in the light of observation made by us hereinbefore on such evidence, oral or documentary, as may be adduced by the parties. The records along with a copy of our judgment to go down at once. In view of the question of law involved, we propose to make no order as to costs.