Niroda Sardarni v. Kamaluddin Sheikh — 1990 DIGILAW 473 (CAL)

Judgment This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Murshidabad dated 22nd August, 1972 in Title Appeal No. 366 of 1969 reversing those of the learned Munsif, 2nd Court, Jangipur passed on 28th June, 1969 in Title Suit No. 144 of 1968. 2. The plaintiff-respondents instituted the said suit for declaration that the order of Revenue Officer, Murshidabad in Case No. 70 of 1976 and that of the Collector, Murshidabad in the Appeal No.4 of 1967 are illegal, void without jurisdiction and for recovery of khas possession of the suit land upon declaration of title. The plaintiffs case was that the disputed properties belonged to Late Khoka Sardar and Late Kalu Sardar in equal shares. The defendant Niroda Sardarni who is the appellant before me is the daughter of Khoka Sardar. Kalu died leaving his mother Sukurmoni as the only heir. The plaintiffs purchased the share of Sukurmoni which she inherited from Kalu Sardar by a registered Kubala dated 6.6.55 and was in possession of the same. The defendant claiming aboriginal moved the Revenue Officer for annulment of the said transfer and her application was registered as Case No. 70 of 1966 Upon hearing the parties the Revenue Officer annulled the said transfer by his order dated 5.6.67. By virtue of that order the plaintiff was dispossessed from the disputed properties on 18.6.67. The plaintiffs took an appeal against the order of the Revenue Officer before the Collector of Murshidabed but the appeal was dismissed. The plaintiffs case was that the said orders passed by the Revenue Officer and the Collector are without jurisdiction and void. . 3. The defendant contested the suit by filing a written statement in which it was pleaded inter alia that Sukurmoni married for the second time and left for Rajsahi before the death of Kalu. On the death of Kalu, his brother Khoka father of the defendant became the sole owner of the suit plots. Even if Sukurmoni had any interest, the plaintiff acquired no title to the suit land since no permission was obtained from the Collector before the alleged purchase on 66.55 as required under the law. It was further contended that the orders of the Revenue Officer and the Collector are legal and valid and th3t they had jurisdiction to entertain the matter. 4. It was further contended that the orders of the Revenue Officer and the Collector are legal and valid and th3t they had jurisdiction to entertain the matter. 4. It was contended before the learned Munsif that as the impugned transfer took place long before Chapter IIA of the West Bengal Land Reforms Act came into force and as the plaintiffs were not given any opportunity of being heard by the Revenue Officer the orders passed by the Revenue Officer and the Collector were illegal and without jurisdiction. The learned Munsif has held that the Revenue Officer had jurisdiction to deal with the matter. He has further held that the plaintiffs were given an opportunity of being heard by the Special Officer. In that view of the matter he dismissed the suit. The lower appellate court is, however. of the opinion that the impugned transfer being made on 6.655 when the Bengal Tenancy Act, 1885 was in full force, the defendant had the right to move the Collector for annulling the transfer under the provision of s. 49H of the Bengal Tenancy Act and the West Bengal Lard Reforms Act having not abrogated the old procedure for enforcement of the right of the defendant, the Revenue Officer purporting to act under the Land Reforms Act under s. 14E had no jurisdiction to entertain and decide the matter and consequently the order of the Collector in appeal is also without jurisdiction. The lower appellate court has further held that plaintiffs have acquired valid title to the suit property. He has accordingly allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Being aggrieved the defendant has preferred this second appeal. 5. Mr. Sengupta, the learned Advocate for the appellant has contended that since the impugned proceeding for annulment of the disputed transfer in favour of a non-aboriginal was started on 6.5.67 when the Bengal Tenancy Act was already repealed and the new procedure was enacted in the West Bengal Land Reforms Act which was subsisting at the relevant time the defendant had to file the application for annulment of the transfer in accordance with the procedure that was in force at the time when the action was started inasmuch as changes in the procedure are normally retrospective and there is no vested right in matters of procedure. 6. 6. Chapter VIIA of the Bengal Tenancy Act, 1885 deals with restrictions on alienation of land by aboriginals. Section 49B provides that no transfer by an aboriginal tennure-holder, raiyat or under raiyat of his right in his tenure or holding, or in any portion thereof by private sale, gift, will, mortgage, lease or any contract or agreement shall be valid to any extent except as provided in this Chapter. Section 49F(b) provides that when an aboriginal tenure-holder, raiyot or under raiyat desires to transfer his land, or any portion thereof by private sale, gift or will to any person, he may apply to the Collector for permission to transfer the same by private sale, gift or will to any person and the Collector may pass such order on the application as he thinks fit. So an aboriginal cannot transfer his land without permission of the Collector. Section 49H gives power to the Collector to set aside an alienation in contravention of the provisions of this Chapter made by an aboriginal, whether he be a tenure-holder raiyat or under-raiyat and restore possession of the property to the alienor or his heir by ejecting the alienee. 7. Now, the Bengal Tenancy Act, 1885 stands repealed in toto on the enforcement of s. 59 of the Land reforms Act as far as it relates to Clause 5 with effect from 1.11.65. Chapter IIA of the West Bengal Land Reforms Act dealing with restriction on alienation of land by scheduled tribes has been brought into force with effect from the same date i e. 1.11 65. Modelled on s. 49B B.T. Act, s. 14B of the West Bengal Land Reforms Act provides that all transfers by a member of the scheduled tribe except those transfers sanctioned by s. 14C are null and void. Under the first proviso to s. 14C any raiyot belonging to a scheduled tribe may, with the previous permission in writing of the Revenue Officer, transfer by sale a holding or any part thereof to a person not belonging to any scheduled tribe. Under the first proviso to s. 14C any raiyot belonging to a scheduled tribe may, with the previous permission in writing of the Revenue Officer, transfer by sale a holding or any part thereof to a person not belonging to any scheduled tribe. Under the second proviso it is laid down that no such permission shall be granted by the Revenue Officer unless he is satisfied that no purchaser belonging to a scheduled tribe is willing to pay the fair market price of the holding or any part thereof and that the proposed sale is intended to be made for the purpose of improvement of any other part of the holding or for investment or for such other purposes as may be prescribed. Section 14E which is analogous to s. 49H Bengal Tenancy Act empowers the Revenue Officer to annul the transfer, if necessary, and to eject by written order a transferee from a member of the scheduled tribe either suo motu or on an application made in that behalf in the case of a transfer in contravention of the provision of s. 14C of the Act or when the permission for the transfer has been found to have been obtained by misrepresentation or fraud. 8. The impugned transfer was made on 6.6.55 during the subsistence of the Bengal Tenancy Act. The right of the defendant-appellant for annulment of the disputed transfer accured under the provisions of the Bengal Tenancy Act. The proceeding for annulment, however, started on 6.5.67 long after the Bengal Tenancy Act had been repealed, and Chapter IIA of the Land Reforms Act dealing with the procedure of enforcement of such right was in operation. The question is whether the right accrued under the repealed Bengal Tenancy Act could be enforced in the new forum according to the new procedure as provided in Chapter IIA of the Land Reforms Act or it could be enforced only under the old procedure and in the old forum as provided in the repealed Bengal Tenancy Act. Now it is a settled rule of interpretation that a statute which takes away or impairs vested rights is not to be construed as having a retrospective operation unless such construction appears clearly in the terms of the new Act or arises by necessary implication. Now it is a settled rule of interpretation that a statute which takes away or impairs vested rights is not to be construed as having a retrospective operation unless such construction appears clearly in the terms of the new Act or arises by necessary implication. The effect of repealing a statute is undoubtedly to obliterate it as if it had not been passed; but this must always be taken with the qualification that it does not deprive persons of vested rights already acquired by them. Section 8 of the Bengal General Clauses Act which is worded in the same manner as s. 6 of the India General Clauses Act and s.38 of the English Interpretation Act embodies the same principle. It runs as follows :- "Where this Act or any Bengal Act made after the commencement of this Act repeals any enactment hereto made or hereafter to be made, then unless a different intention appears, the repeal shall not.........(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or......... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability ..........as aforesaid and such investigation, legal proceeding or remedy may be instituted, continued or enforced...... ...as if the repealing Act had not been passed." It is, however, a well established principle of law that changes in the procedure are normally retrospective. There is no vested right in matters of procedure and changes in the form of procedure are ordinarily retrospective. So, a vested right accrued under the repealed Act must be enforced in accordance with the procedure that is in force at the time when the action is started. The Revenue Officer had, therefore, jurisdiction to entertain and dispose of the appellant's application for annulment of the disputed sale. At the relevant time before amendment of s. 14R by the West Bengal Land Reforms (Amendment) Act, 1972 and appeal against the order of the Revenue Officer lay before the Collector. The Collector's order affirming the decision of the Revenue Officer is not without jurisdiction. 9. The lower appellate court has relied upon the Full Bench decision of this court in Jatindra Nath De v. Jetu Mahato & ors. The Collector's order affirming the decision of the Revenue Officer is not without jurisdiction. 9. The lower appellate court has relied upon the Full Bench decision of this court in Jatindra Nath De v. Jetu Mahato & ors. reported in 50 CWN 502 it has been held in that case that when rights and procedure are both altered by an amending or repealing statute, then if the rights accrued under the previous enactment are saved, the old procedure is also saved unless the new enactment expressly or by necessary implication provides to the contrary or makes the new procedure applicable to old rights. Consequently, under the general rule of interpretation is also under s. 8(E) of the Bengal General Clauses Act, in cases where the right to preempt had already accrued to a landlord before the Bengal Tenancy Act, 1938 came into operation, the landlord can avail of the old procedure and exercise his right by an application and the procedure laid down in the old s. 25F. In my opinion, the said decision is clearly distinguishable and does not apply to the facts of the present case. In that case the sale of the holding took place at a time while s. 26F of the Act of 1928 was in force and the notice under old s. 25C was also served on the landlord before the Amending Act had come into operation. The landlord's right of preemption was taken away under the Amending Act, 1938. The new s. 26F gave a right of preemption to the co-sharer tenants of the holding in place of the immediate landlord which was the provision of the old Act. A co-sharer tenant could, therefore, exercise this right of preemption immediately the amending act became opera rive. It has been held that if the landlord acquired any rights under the old law, these rights would still subsist as laid down in s. 8 of the Bengal General Clauses Act unless there was something in the new law which expresaly or by necessary implication took them away. Both the rights and the procedure were altered by the amending Act. In that case the landlord's right of preemption which accrued under the old Act and which was saved under s. 8 of the Bengal General Clauses Act could be enforced according to the procedure laid down in the old s. 26F. Both the rights and the procedure were altered by the amending Act. In that case the landlord's right of preemption which accrued under the old Act and which was saved under s. 8 of the Bengal General Clauses Act could be enforced according to the procedure laid down in the old s. 26F. Now, in the instant case a new procedure for enforcing the right of annulment of a sale made by an aboriginal or scheduled tribe in favour of a person not belonging to the scheduled tribe in contravention of the provisions of law was provided in the repealing act. In fact, the right tinder the B.T Act was not really taken away. Similar provisions have been made in Chapter IIA of the Land Reforms Act as a new procedure bas been provided for enforcement of the right even accrued in the B.T. Act it cannot be said that the old procedure under the B.T. Act would apply. It is well known that there is no vested right in matters of procedure and changes in the form of procedure are ordinarily retrospective. This is not a case where both the substantive right and the procedure have been altered by the repealing act. The decision referred to above and relied by the lower appellate court, is not, therefore, applicable in the present case. 10. An application has been filed for adding the State of West Bengal as a party. No relief has been prayed for against the State, and the interest of the State is not in any way involved in the suit. The State is not a necessary party and the application stands, therefore, rejected. 11. In the result, the appeal is allowed and the judgment and decree" of the lower appellate court are set aside and those of the trial court are restored. I make no order as to costs. Appeal allowed; judgment and decree of the trial court restored.