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1995 DIGILAW 75 (CAL)

Gora Chand Kumar v. A. D. M. (LR) Purulia

1995-02-28

SUDHENDU NATH MALLICK

body1995
Judgment Sudhendu Nath Mallick, J. 1. Both these Revisional Applications under Article 227 of the Constitution of India have been heard together and taken up together for purpose of passing Judgment inasmuch as the question involved in both the matters is the same, although the opposite parties are different and properties involved are different and the impugned orders are different. In C.O. 1167 of 1986 the petitioners Gorachand Kumar and three .others have challenged the order dated 12.3.86 passed by the Additional District Magistrate, Purulia, in Misc. Case No. 8 of 1985-86 under s. 46A of the Chhotonagpur Tenancy Act (Act XXI of 1961) frofeiting the land in dispute to the State under s. 46A(2)(a) of the said Amendment Act. In C.O. No. 1168 of 1986 the petitioners Gorachand Kumar and three others have challenged the order dated 12.3.86 passed by the Additional District Magistrate, Purulia, in Misc. Case No. 38 of 1984-85 under s. 46A of the Chhotonagpur Tenancy Act (Act XXI of 1961) forfeiting the land in dispute to the State under s. 46A(2)(a) of the said Amendment Act. In C.O. No. 1168 of 1986 the petitioners Gorachand Kumar and three others have challenged the order dated 12.3.86 passed by the Additional District Magistrate, Purulia, in Misc. Case No. 38 of 1984-85 under s. 46A of the Chhotonagpur Tenancy Act (Act XXI of 1961) forfeiting the land in dispute to the State under s. 46A(2)(a) of the said Amendment of Act. Mr. Mukherjee appearing for the petitioners in both the cases has argued that the Additional District Magistrate, Purulia had no authority to pass the impugned orders in both the cases under the amended s. 46A of the Chhotonagpur Tenancy Act as the said Act stood impliedly repealed by virtue of Ss. 60 61 of the West Bengal Estate Acquisition Act read with Rule 4(4) of the Estate Acquisition Rules 1954 coming into operation with effect from 1964. Before considering; the above contention of Shri Mukherjee it would be helpful to refer to certain matters on record on which the Additional District Magistrate while passing the impugned orders has come to a definite finding. In both the Revisional Cases opposite party No. 2 belonged to San that community which is a Scheduled Tribe. Before considering; the above contention of Shri Mukherjee it would be helpful to refer to certain matters on record on which the Additional District Magistrate while passing the impugned orders has come to a definite finding. In both the Revisional Cases opposite party No. 2 belonged to San that community which is a Scheduled Tribe. In both the cases the disputed lands are situated in the district of Purulia which are covered by the Bihar and West Bengal (Transfer of Territories) Act of 1956 which was enforced with effect from 1.11.56. It is also undisputed that the present petitioner that is the transferees do not belong to Scheduled Tribes. In the first case the disputed transfer was made by the OP No. 2 Ramcharan by registered deed No. 3779 dated 15.4.68 to the present petitioners without obtaining prior written permission of the Deputy Commissioner, Purulia as contemplated under the amended s. 46A of the Chhotonagpur Tenancy Act. In the second case the disputed transfer was made by the OP NO.2 Sukdeb and his brother Laldeb (both belonging to san that community) in favour .of the petitioners transferors by registered deed being No. 3082 dated 20.3.69. It has also been found in both the cases by the Additional) District Magistrate in his impugned orders that the said transferors before making the transfer to the present petitioners belonging to non-scheduled Tribe community did not obtain prior written permission of the Deputy Commissioner, Purulia under the amended s. 46A of the Chhotonagpur Tenancy Act. The Learned Additional District Magistrate by his impugned orders have overruled the objection taken by the present petitioners before him in connection with the above two proceedings that no such permission was necessary as the relevant provision of the Chhotonagpur Tenancy Act was repealed by the enforcement of Estate Acquisition Act and the Rule 4(4) of the Estate Acquisition Act Rules framed under s. 59 of the sa'id Act. 2. Shri Mukherjee has submitted that even if there was no direct repeal of the Chhotonagpur Tenancy Act at the time of the disputed transfers the said Act should be treated as impliedly repealed in view of the decision of the Supreme Court reported in AIR 1963 SC page 1561 (Municipal Council, Palai, Appellant vs. T.J. Joseph and others respondents). 2. Shri Mukherjee has submitted that even if there was no direct repeal of the Chhotonagpur Tenancy Act at the time of the disputed transfers the said Act should be treated as impliedly repealed in view of the decision of the Supreme Court reported in AIR 1963 SC page 1561 (Municipal Council, Palai, Appellant vs. T.J. Joseph and others respondents). It has been laid down there by the Supreme Court as follows : "It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. Of course, there is no rule of law to prevent repeal of a special by a later general statute and, therefore, where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statute applies to an persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confirmed to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible". 3. Shri Mukherjee has also relied upon another Judgment of the Supreme Court reported in AIR 1986 SC page 1011 (Mrs. Mary Roy and others, Petitioners vs. State of Kerala and others, Respondents). In that case considering the facts and circumstances involved there the Supreme Court held that on the coming into force of Part-B States (Laws) Act. 3. Shri Mukherjee has also relied upon another Judgment of the Supreme Court reported in AIR 1986 SC page 1011 (Mrs. Mary Roy and others, Petitioners vs. State of Kerala and others, Respondents). In that case considering the facts and circumstances involved there the Supreme Court held that on the coming into force of Part-B States (Laws) Act. 1951 the Travancore Christian Succession Act, 1092 stood repealed and Chapter II of Part V of the Indian Succession Act, 1925 became applicable and intestate succession to the property of members of the Indian Christian Community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925. 4. In order to appreciate the question of application of the aforesaid decisions to the present case the following undisputed statutory facts are required to be noted. 5. As I have already noted the Bihar and West Bengal (Transfer of Territories) Act, 1956 came into operation with effect from 1st day of November, 1956. Sections 43, 44 and 45 of the said Act run as follows:" 43. Territorial extent of laws.- The provisions of s. 3 shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to Bihar or West Bengal shall, until otherwise provided by a competent legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. 44. Power to adapt laws.-For the purpose of facilitating the application of any law in relation to Bihar or West Bengal, the appropriate Government may before the expiration of one year from the appointed day by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent authority or competent legislature. Explanation-In this section, the expression "appropriate Government" means as respects any law relating to a matter enumerated in the Union List the Central Government, and as respects any other law, the State Government. 45. Explanation-In this section, the expression "appropriate Government" means as respects any law relating to a matter enumerated in the Union List the Central Government, and as respects any other law, the State Government. 45. Power to construe laws-Notwithstanding that no provision or insufficient provision has been made for the adaptation of a law made before the appointed day, any Court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to Bihar to West Bengal, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the Court, tribunal or authority". 6. It may be noted here that by notification issued under s. 60 of the Estate Acquisition Act as contemplated under s. 61 of the said Act the Bihar Land Reforms Act, 1950 stood repealed and provisions of the Estate Acquisition Act was made applicable mutastis mutandis to the transferred territories of Purulia. It may also be noted here that by the Estate Acquisition Act, 1953 the Bengal Tenancy Act which contained in chapter VIIA similar provision for restriction or alineation of land by aborginals was not repealed. The entire Bengal Tenancy Act was repealed under s. 59 of the West Bengal Land Reforms Act with effect from 1.10.69 in respect of the areas transferred from Bihar to West Bengal. The pertinent question is what was the law regarding the restriction on transfer or alineation of land by Scheduled Tribes in the Transferred areas of Purulia after the enforcement of the West Bengal Estate Acquisition Act and the enforcement of chapter IIA of the West Bengal Land Reforms Act regarding restriction on alineation of land by Scheduled Tribes prior to 1.10.69. The West Bengal Transfer Territories (Assimilation of Laws) Act. 1958 came into operation on and from 1.7.59. Section 3, sub-clause (3) of the said Act clarifies the position as follows : "Notwithstanding anything contained in sub-ss. The West Bengal Transfer Territories (Assimilation of Laws) Act. 1958 came into operation on and from 1.7.59. Section 3, sub-clause (3) of the said Act clarifies the position as follows : "Notwithstanding anything contained in sub-ss. (1) and (2), the State laws specified in Schedule II as in force in the whole or any part of the transferred territories immediately before the appointed day shall continue in force therein after that day, (subject to such adaptations and modifications, whether by way of repeal or amendment, as the State Government may, from time to time but before the expiration• of one year from that: day, by notification in the Official Gazette, make in any such law for the purpose of facilitating the application, thereof 'in relation to West Bengal,) and the State laws specified in Schedule III shall not extend to, or come into force in, the whole or such part of the transferred territories, as the case may be : Provided that the State law specified in item (16) of Schedule II as in force in the transferred territories immediately before the appointed day shall continue in force, after that day, only in the territory referred to in clause (b) of sub-so (1) of S. 3 of the Bihar and West Bengal (Transfer of Territories) Act. 1956, and the State laws specified in items (9) and (10) of Schedule III shall not extend to, or come into force in, such terrotiry: Provided further that, subject to the provisions of the proviso to sub-so (2) and of s. 4, the State laws specified in Schedule II shall stand repealed or the State laws specified in Schedule III shall extend to, or come into force in, the transferred territories or any part thereof, with effect from such date or dates as the State Government may, by notification issued in the Official Gazette, from time to time, appoint in this behalf". 7. Under Schedule II, the item No. 3 is Chhotonagpur Tenancy Act, 1908 the provisions of which were applied to the present two cases and item No. 2 of Schedule III of the said Act is the Bengal Tenancy Act, 1885. 7. Under Schedule II, the item No. 3 is Chhotonagpur Tenancy Act, 1908 the provisions of which were applied to the present two cases and item No. 2 of Schedule III of the said Act is the Bengal Tenancy Act, 1885. From the above statutory provisions of the West Bengal Estate Acquisition Act, Rules framed thereunder and the Bihar and West Bengal Transfer of Territories Act, 1956, the West Bengal Transfers Territories (Assimilation of Laws) Act, 1958 and the provisions of chapter IIA of the West Bengal Land Reforms Act containing restriction on alineation of land of Scheduled Tribes coming into effect on and from 1st October, 1969 and the repeal of the provisions of Bengal Tenancy Act under S. 59 of the West Bengal Land Reforms Act with effect from 1st October, 1969 in relation to transfer territories from Bihar to West Bengal it is clear that the impugned transfers made by the opposite party No. 2 in both the cases were governed by the provisions of the Chhotonagpur Tenancy Act, s. 46 of which Act was amended by the State of West Bengal incorporating s. 46A under Amendment Act XXI 1961. Shri Mukherjee has submitted that Rule 4(4) of the West Bengal Estate Acquisition Rules were already applicable to the transfer territories of Purulia long before the impugned transfers were made by the opposite parties. According to Shri Mukherjee the said Rule came into operation by virtue of notification under s. 60 read with s. 61 of the Estate Acquisition Act sometime in 1964. But the point is that in none of the provisions of Estate Acquisition Act there was a provision of restriction on alineation of land by Scheduled Tribes. By Rule 4(4) of the Estate Acquisition Rules certain provisions regarding restriction on alineation of land by Scheduled Tribes in the State of West Bengal was made. These Rules were framed under s. 59 of the Estate Acquisition Act, although as I have already noted there was no separate provision of such restriction in the impugned Act itself. Under Schedule II read with s. 3, subs. (3) of the West Bengal Transfer Territories (Assimilation of Laws) Act, 1958, the Chhotonagpur Tenancy Act, 1908 which was further amended by the West Bengal Act XXI of 1961 remained in force in the areas of the district of Purulia transferred from Bihar to West Bengal. Under Schedule II read with s. 3, subs. (3) of the West Bengal Transfer Territories (Assimilation of Laws) Act, 1958, the Chhotonagpur Tenancy Act, 1908 which was further amended by the West Bengal Act XXI of 1961 remained in force in the areas of the district of Purulia transferred from Bihar to West Bengal. Furthermore, under Schedule III of the said Act the Bengal Tenancy Act of 1885 had no operation in respect of such transfer territories. In that view of the matter the impugned transfers which were made by the respective OP No. 2 in both the cases were so made before 1st October, 1969, that is, the date on and from which chapter IIA of the West Bengal Land Reforms Act regarding restriction on alineation of land by Scheduled Tribes came into force. In that position the only law applicable to the impugned transfer was the Chhotonagpur Tenancy Act as amended under West Bengal Amendment Act XXI of 1961. The question of implied repeal of the provisions of the Chhotonagpur Tenancy Act as argued by Shri Mukherjee does not arise at all. In this position the decisions of the Supreme Court as relied upon by Shri Mukherjee cannot be attracted to the facts and circumstances of the present cases before this Court. There has been clear repeal of the provisions of Chhotonagpur Tenancy Act in respect of the transferred areas from Bihar in the district of Purulia under the provisions of Land Reforms Act with effect from 1st October, 1969 and not before that. There was no question of application of the Bengal Tenancy Act regarding the restriction on alineation of land by aborginals letter describe as Scheduled Tribes to the transferred areas from Bihar. There cannot also be any question of application of Rule 4(4) of the Estate Acquisition Rules to the transfer territories of Purulia by virtue of notification under s. 60 read with s. 61 of the Estate Acquisition Act as the main Act, this is, the West Bengal Estate Acquisition Act. 1953 did not contain any specific provision of restriction on alineation of land by Scheduled Tribes which was incorporated much later in the West Bengal Land Reforms Act under chapter IIA by way of amendment which came into operation in respect of the transfer territories of Purulia on and from 1st October, 1969. 8. 1953 did not contain any specific provision of restriction on alineation of land by Scheduled Tribes which was incorporated much later in the West Bengal Land Reforms Act under chapter IIA by way of amendment which came into operation in respect of the transfer territories of Purulia on and from 1st October, 1969. 8. Under the circumstances and in view of the provisions of law as noted above I do not find any reason to interfere with the impugned orders passed by the Additional District Magistrate dated 12th March, 1986 in Misc. Case No.8 of 1985-86 and 38 of 1984-85. It does not appear that he has committed any error of jurisdiction or that he had not jurisdiction to pass the impugned orders. There is nothing to show that there is any error of law apparent on the face of the record or that there has been any violation of the principles of natural justice resulting in manifest injustice or that the impugned orders have been passed arbitrarily and are perverse being based on no material whatsoever. Both the Revisional Applications fail and they are dismissed. The impugned orders do stand. This order governs both the C.O. No. 1167 and 1168 of 1986. Application dismissed.