Md. Abdul Karim v. Jitendranath Mandal — 1994 DIGILAW 156 (CAL)

JUDGMENT Tarun Chatterjee, J. 1. This application for revision arises out of an order of reversal passed on an application filed by the petitioners under S.8 of the West Bengal Land Reforms Act (hereinafter referred to as "the Act"). By the application under S. 8 of the Act the petitioners sought to pre-empt the sale of the land in question made by one of the co-sharers of the holding in question to the opposite parties on 26th of November, 1976 on the ground that the petitioners were co-sharers of the holding in question. 2. The trial Court allowed the application for pre-emption on a finding that the petitioners were co-sharers of the holding in question. 3. In appeal, the decision of the trial Court was reversed and the application for pre-emption was dismissed on the ground that in view of the amended definition of "Holding" in S. 2 (6) of the Act, the petitioners could not be co-sharers of the holding in question. It appears that the decision of the appellate Court was based on a Division Bench decision of this Court reported in 1990(2) CLJ 378 (Smt. Dayamanti Maity vs. Aswini Kumar Jana & Ors.) 4. Feeling aggrieved by the decision of the appellate Court, the preemptors/petitioners have come up to this Court in revision. 5. I have heard the learned advocates for the respective parties and persued the impugned order and other materials on record. After giving my serious considerations to the submissions made on behalf of the parties and after going through the impugned order of the appellate Court, I am of the view that the appellate Court has acted illegally and with material regularity in the exercise of its jurisdiction in rejecting the application for pre-emption filed by the petitioners under S.8 of the Act. Reasons are as follows: 6. It is an admitted position that the application for pre-emption was filed on 14th of November, 1979. At the time of filing the application for pre-emption, the definition of "holding" as in S. 2 (6) of the Act was as follows : "holding" means the land or lands held by a raiyat and treated as a unit for assessment of Revenue. It has not been disputed by Mr. At the time of filing the application for pre-emption, the definition of "holding" as in S. 2 (6) of the Act was as follows : "holding" means the land or lands held by a raiyat and treated as a unit for assessment of Revenue. It has not been disputed by Mr. Panda, appearing on behalf of the pre-emptees/opposite parties that the petitioners should be held to be co-sharers of the holding in question and the application for pre-emption should be allowed on the ground that the petitioners are co-sharers of the holding in question if the definition of "holding", as it stood before its amendment, is applicable to the facts of this case. 7. Let me now, therefore, consider whether the definition of "holding", as it stood before its amendment or the definition of "holding" as it now stands would apply in the facts and circumstances of this case. 8. As noted earlier, "holding" under the Act was originally defined as the land or lands held by a raiyat and treated as a unit for assessment of revenue. The West Bengal Land Revenue Act, 1979, (hereinafter referred to as "the Revenue Act") which came into force with effect from 14th April, 1981, has, in S.26, provided as follows : "S.26. Amendments and savings. (1) With effect from the date of coming into force of this Act in any district, the following amendments to the West Bengal Land Reforms Act, 1955 shall be deemed to have been made. . . . . . . (a) in clause (6) of section 2, the words "and treated as a unit for assessment of revenue" be omitted; . . (2) Notwithstanding the amendments mentioned in sub-so (1) any proceedings pending on the date of such coming into force of this Act before any authority appointed under the said Act or any Court shall be continued and disposed of as if this Act had not come into force in that district." 9. From a plain reading of S. 26(1)(a) of the Revenue Act it is clear that the word "and treated as a unit for assessment of revenue", as was used in S. 2(6) of the Act before its amendment, was omitted. Therefore, the amended definition of "holding" in: S. 2(6) of the Act will now be read by meaning as land or lands held by a raiyat. Therefore, the amended definition of "holding" in: S. 2(6) of the Act will now be read by meaning as land or lands held by a raiyat. The Division Bench decision of this Court, as relied by the appellate Court, has held that because of change in the definition of "holding" there cannot be any co-sharer in respect of any holding, as "holding" constitutes only the land or lands held by a raiyat. In my view, the aforesaid decision of this Court is clearly not applicable to the facts of this case. In that decision, the application for pre-emption was filed after the amended definition of 'holding' was brought into force. But in view of the saving clause as made by the legislature by introducting s. 26(2) of the Revenue Act, the present application for pre-emption which was admittedly filed before the amended definition of 'holding' was introduced, must be governed by the definition of 'holding' which was in force before its amendment. As quoted hereinabove, s. 26(1) of the Revenue Act clearly says that with effect from the date of coming into force of this Act in any District, the amendment of the Land Reforms Act, referred therein, shall be deemed to have been made. From the above, it is quite clear that the amended definition of 'holding' shall come into play only on and from 14th January, 1981 when the Revenue Act was brought into force and not before. 10. In view of the admitted 'fact that the application for pre-emption was already pending on the date the amended definition of 'holding' was brought into force, let me now consider whether in such pending application for pre-emption, the amended definition of 'holding', as now in s. 2 (6) of the Act, would still be applicable inspite of s. 26(2) of the Revenue Act. ' 11. As quoted hereinbefore, from a reading of s. 26(2) of the Revenue Act, it is obvious that the legislature in its wisdom and to protect the pending applications for pre-emption from the application of the amended definition of "holding" to such pending applications for pre-emption has incorporated the saving clause in s. 26(2) of the Revenue Act. By the Saving Clause in s. 26(2) of the Revenue Act it has clearly said. By the Saving Clause in s. 26(2) of the Revenue Act it has clearly said. that the amended definition of 'holding', shall not apply, in so far as pending applications are concerned and such proceedings shall be continued and disposed of as if the Revenue Act had not come' into force. Such being the position, it is patently dear from a reading of s.26(2) of the Revenue Act that the amended definition of 'holding' as in s. 2 (6) of the Act cannot be applied to a case which was pending on the date of coming into force of the Revenue Act, and, therefore, the present application for pre-emption would attract the definition of 'holding' as in s. 2 (6) of the Act which was prevailing at the time of filing such application. Therefore, the appellate Court had failed to apply the saving clause as ins. 26(2) of the Act in the facts of this case and thereby had fallen into error by holding that in view of the, decision reported in 1990(2) CLJ 387 (Smt. Dayamanti Maity vs. Aswini Kumar Jana & Ors.), the petitioners could not be co-sharers of any holding. The aforesaid Division Bench of this Court was wrongly applied by the appellate Court in this case for the simple reason that in the said decision the question of applying the saving clause as in s. 26(2) of the Revenue Act; did not arise at all because the application for pre-emption was filed after' the ~amendment of the definition of holding' was brought into force. A Special Bench decision of this Court reported in 61 CWN 263 (Tarak Chandra Banerjee & Ors. vs. Ratan Lal Ghosal & Ors.) while dealing with the saving Clause' as 'provided in s. 40(2) of the West Bengal Premises Tenancy Act, 1956 in respect of pending proceedings initiated under the earlier Act which was repealed by the West Bengal Premises Tenancy Act, 1956, observed in page 287 as follows: "It is clear that the Legislature is no longer relying on what I have called the standard saving clause, as contained in s. 8 of the Bengal General Clauses Act, but has, enacted a special saving clause for its instant purpose. The object of the provision is undoubtedly to save pending proceedings and authorise new institutions for the enforcement of rights and liabilities accrued under the Act of 1950, notwithstanding the repeal of that Act. The only question is what pending proceedings it has succeeded in saving and what new institutions .it has authorised. “The amendment substitutes a new section for the old. s. 40 with retrospective effect from the date of the principal Act. Before dealing with the effect of the section, I may refer to two of its verbal' infelicities on which caustic comments were made. Clause (b) of subs. (2) of the section says that "any proceeding or remedy…. may be instituted." It was said that to speak of instituting a remedy was to use odd language. The use of the word 'instituted' in connection with the word 'remedy' is undoubtedly inappropriate. I do not know if the explanation is that the draftsman tried to model himself on the last paragraph of s. 8 of the Bengal General Clauses Act, but failed to give to each noun a verb appropriate to it as has been done there. The other infelicity almost affects the sense. Sub-section (2), taken as a whole, says that notwithstanding the repeal of the Rent Act of 1950, "any proceeding pending on the 31st day of March, 1956 may be continued, or, any proceeding or remedy in respect of any right, privilege. . . may be instituted as if the said Act had been in force". The use of the past perfect tense in the last clause made the learned Advocate for the respondents in one of the appeals ask whether it was intended that the Act of 1950 should be deemed to have been in force on some past date, and if so, what that date was. I cannot say the enquiry was not pertinent. The use of the past perfect tense in the last clause made the learned Advocate for the respondents in one of the appeals ask whether it was intended that the Act of 1950 should be deemed to have been in force on some past date, and if so, what that date was. I cannot say the enquiry was not pertinent. If someone refers to the repeal of an Act and says that inspite of such repeal, pending proceedings under or relation to the Act may be continued and even new proceedings may be instituted in future, he can properly say that such proceedings may be continued or instituted ,"as if the Act is still in force", but if he says "as if the Act had been in force", he naturally gives the impression that he is asking an assumption to be made as to the existence of the Act at some past point of time. Of such an expression it cannot be said that it really carries a sense of the present tense and that its use of the past perfect tense is an idiom of the English language. I think, however, that although the language used in the sub-so (2) of the Act is infelicitous and inaccurate, it is not difficult to gather the intention. When it says that any remedy may be "instituted", it means that any remedy may be 'enforced' and when it says "as if the said Act had been in force" it means "as if the said Act is still in force". (Emphasis supplied). 12. From the aforesaid observation of the Special Bench and in view of my discussions made hereinabove, I am of the view that the appellate Court has acted illegally and with material irregularity in the exercise of its jurisdiction in rejecting the application for pre-emption filed by the petitioners. 13. Before parting with this judgment, the submission of Mr. Panda must be considered. According to Mr. Panda, it is well settled that the right of pre-emption should not only be made available on the date of making the application for pre-emption but it would also continue upto the date of passing of the final order on such application. Mr. 13. Before parting with this judgment, the submission of Mr. Panda must be considered. According to Mr. Panda, it is well settled that the right of pre-emption should not only be made available on the date of making the application for pre-emption but it would also continue upto the date of passing of the final order on such application. Mr. Panda, therefore, submitted that in view of coming into force of the amended definition of 'holding' during the pendency of the application for pre-emption, the petitioners could not be the co-sharers of any 'holding' because the amended definition of 'holding' became applicable before the final order for pre-emption was passed. Mr. Panda thus contended that the appellate Court was correct in rejecting the application for pre-emption and, therefore, the question of interfering with the impugned order of the appellate Court did not arise at all. It is true that the right of the pre-emptor should not only exist on the date of making the application for pre-emption but that would also continue till the date of final order passed on the application for preemption. In the present case, it was not disputed by Mr. Panda that the petitioners were the co-sharers of the holding in question on the date of filing of the application for pre-emption but he submitted that on the date of passing the final order, the petitioners were not the co-sharers of the holding in question in view of the ameded definition of 'holding' in s. 2 (6) of the Act. But this submission of Mr. Panda cannot be accepted in view of the saving clause as made in s. 26(2) of the Revenue Act. As observed hereinbefore, s. 26(2) of the Revenue Act, saves the pending applications for pre-emption from applying the amended s. 2(6) of the Act to them. Mr. Panda, however, in support of his contention relied on a Full Bench decision of Punjab High Court, reported in AIR 1951 Pun. 52 (Shyam Sunder vs. Ram Das). Mr. Panda particularly referred to paragraph 38 of the said decision. After carefully going through the decision and also paragraph 38 of the same, I am of the view that the said decision has no manner of application to the facts of this case. 52 (Shyam Sunder vs. Ram Das). Mr. Panda particularly referred to paragraph 38 of the said decision. After carefully going through the decision and also paragraph 38 of the same, I am of the view that the said decision has no manner of application to the facts of this case. In that decision, the Full Bench of the Punjab High Court, while considering s. 15 of the Delhi and Ajmer Merwara Land Control Act, has held that the provisions of the saving clause of the Act are subject to the qualification that the enacting part of the Act contains no provisions or indication to the contrary.' It further held that s. 15 of the Act, which was a saving section was used to exempt something from immediate interference or destruction but where the main enactment was clear, the saving clause had no repercussion on the interpretation of the main enactment so as to exclude from its scope what clearly fell within its terms. Therefore, while interpreting s. 15 of the Act, it was held by the Full Bench that the rule was that if the saving clause was in irreconcilable conflict with the body of the statute of which it was a part, then it was ineffective or void. This is not the case here. In this case the Revenue Act, defines 'holding' and clearly indicates that such definition would come into force with the coming into force of the Act. The Revenue Act makes it clear that by introducing the saving clause in s. 26(2) of the Revenue Act it would protect the pending applications for pre-emption from the application of the amended definition of 'holding' as defined in s. 2 (6) of the Act. Therefore, the Full Bench decision of the Punjab High Court has no application to the present case. 14. In view of the stand taken by Mr. Panda, appearing on behalf of the opposite party, as noted earlier, that the petitioners should be deemed to be co-sharers of the holding in question if the definition of 'holding' as was in s. 2(6) of the Act are made applicable to the present case, the application for pre-emption stands allowed as the petitioners must be held to be Co-sharers of the holding in question. 15. Accordingly the impugned order of the appellate Court is set aside. The application for pre-emption stands allowed. 16. 15. Accordingly the impugned order of the appellate Court is set aside. The application for pre-emption stands allowed. 16. The Revisional application is allowed. 17. There will be no order as to costs. 18. This order shall also govern C.O. No. 2753 of 1992. Application allowed.