Calcutta High Court
Ramkrishan Shaw vs Smt. Lachmania Devi And Ors. on 7 April, 1994
Equivalent citations: (1994)2CALLT67(HC)
JUDGMENT Susanta Chatterji, J.
1. The present application for review and/or reconsidera- of the order dated 9th September 1986 passed by the Division Bench consisting of two learned Judges in disposing Civil Rule No. 741 of 1979 has been filed supported by an affidavit sworn on 24th March, 1987.
2. Since one of the learned judges constituted the bench in disposing Civil Rule 741 of 1979 has since been retired, this matter has appeared before this bench who was the other Judge in disposing Rule No. 741 of 1979. It transpires from the materials on record that a revisional application was filed challenging the judgment and/or order dated 12.12.1978 passed by the learned Additional District Judge at Barasat, 24-Parganas in Misc. Appeal 421 of 1974 arising out of order dated 20.5.1974 passed by the learned Munsif, 1st Court at Barasat in Misc. No. 232 of 1972. The revisional application related to an appellate order in a pre-emption proceeding under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949. It further transpires from the materials on record that Lakshman Chandra Sadhukhan, Dulal Chandra Sadhukhan and Ram Chandra Sadhukhan were co-sharers tenants in respect of a non-agricultural tenancy at an annual rent of Rs. 20/- recorded in Khatian No. 650, -Mouja Bhatpara, P.S. Jagatdal, District 24-Parganas. On 13th September, 1978 by purchasing Ramchandra's interest, the opposite party No. 1 become a co-sharer tenant. On 25th August, 1970 another co-sharer, Dulal Chandra, sold his right, title and interest in the said non-agricultural tenancy to Ramkrisan Shaw. On 25th May, 1974, the learned Munsif, 1st Court, Barasat had allowed the application of the opposite party No. 1 under Section 24 of the West Bengal Non-Agricultural Tenancy Act for pre-emption of the l/3rd interest acquired by the petitioner who was admittedly a stranger purchaser. On 4th July, 1975, the Lower Appellate Court had allowed the appeal and by applying the ratio of the decision reported in the case of Madan Mohan Ghosh v. Sishu Bala Atta reported in 76 CWN page 1058, had dismissed the application for pre-emption against the said order, a Civil Rule No. 3744 of 1975 was obtained. A Division Bench of this Court by their judgment dated 14th June, 1978 had set aside the decision of the decision of the lower appellate Court. The Division Bench held that the ratio of the decision in the case of Madan Mohan Ghosh v. Sishu Bala Atta (supra) was inapplicable in the case of non-agricultural tenancies. The Division Bench further held that in view of the decision in the case of Abinash Chandra Jana and Ors. v. Chakradhar Khatua and Ors. in reported in 55 CWN page 717, even when there had been a partition of the lands of a holding but the holding itself had not been split up by creation of separate holdings, co-sharers of tenants of the holdings would still have the right to transfer of a share in favour of a stranger purchaser. After a remand, the learned Additional District Judge by his judgment dated 12th December, 1978 dismissed the Misc. Appeal by affirming the order of the learned Munsiff under Section 24 of the West Bengal Non-agricultural tenancy Act.
3. Being aggrieved by and dis-salisfied with the judgment of the learned Additional District Judge at Barasat dated 12th December, 1978 affirming the order of the learned Munsiff as aforesaid, a revisional application was moved and Civil Rule No. 741 of 1979 was issued.
4. The aforesaid Civil Rule No. 741 of 1979 was ultimately heard by the Division Bench on 9th September, 1986 by Chittatdsh Mookerjee and Susanta Chatterji, JJ. By judgment and order dated 9th September, 1986, the Civil Rule was discharged, holding inter alia, that only upon the publication, of a notification under Section 4 of the West Bengal Estates Acquisition Act and from the date mentioned in such notification, legal consequence or effect set out in clauses (a) to (d) of Sub-section (1) of Section 5 of the West Bengal Estates Acquisition Act would take place. In this judgment it was mentioned that after the decision of D. N. Sinha, J. in the case of Katras Jharia Coal Co. v. State of West Bengal reported in 66 CWN page 304 to the effect after the amendment of the expression 'intermediary' by including therein lessee or Sub-leasee in relation to mines and minerals, a fresh notification under Section 4 of the West Bengal Estates Acquisition Act would be necessary for vesting the interest of such lessee or sub-lessee of mines and minerals, Sub-section (2) was inserted in Section 5 declaring that all rights of mines and minerals of intermediaries being lessee and sub-lessee shall be deemed to have vested in the State with effect from the date of vesting mentioned in the notification under Section 4 in respect of such: notified area. It was further observed that the application of Sub-section (2) of Section 5 was limited only to intermediaries being lessee or sub-lessee of mines and minerals. In the absence of similar provision in respect of non-agricultural tenants either in the West Bengal Act 50 of 1981 or in the West Bengal Estate Acquisition Act, the decision was unable to hold that all rights of non-agricultural tenants and under tenants by the West Bengal Non-agricultural tenancy Act had vested in the State with effect from the date of vesting mentioned in the notification provisionally published under Section 4 of the West Bengal Estates Acquisition Act. It was found that after chapter VI of the said Act was brought into force, the State had issued fresh notification under Section 4 of the said Act for vesting the rights and interests of the raiyats and under-raiyats with effect from 1st Baisakh, 1362 B.S.
5. The Division Bench, accordingly, held that until a unless a valid notification under Section 4 of the West Bengal Estates Acquisition Act is published mentioning the date on which all the rights and interests of non-agricultural tenants and under tenants would vest in the State free from encumbrances, the non-agricultural tenancy jointly recorded in the name of three co-sharers tenants, in Khatian No. 560, mouza Bhatpara, P.S. Jagatdal, district 24 parganas, would continue to subsist. Only after the date of vesting mentioned in a notification under Section 4 of the said Act, the Chapter II-B of the West Bengal Land Reforms Act would apply to the said tenancy. Since the opposite party No. 1 was admittedly a co-sharer tenant at the date of the impugned transfer in favour of the petitioner and at the date of the order allowing her pre-emption application, she was still a co-sharer tenant entitled under Section 24 of the West Bengal Non-Agricultural Tenancy Act to pre-empt the said transfer in favour of the petitioner.
6. The Division Bench further considered that Sub-section (1) of Section 63 of West Bengal Act 50 of 1981 provided that with effect from the date of coming into force of the West Bengal Land Reforms (Amendment) Act, 1981 in any district or any area of Calcutta such provisions of the West Bengal Non-Agricultural Tenancy Act, 1949, as are repugnant to the provisions of the Amending Act shall cease to have effect in the District or area. Instead of providing for repeal of the entire West Bengal Non-Agricultural Tenancy Act, the Sub-section (1) of Section 63 of the Amending Act, gives the said Act an over-riding effect in case of repugnancy or inconsistency between the amending Act and the West Bengal Non-Agricultural Tenancy Act. The Division Bench recorded that since the revisional application was directed against an appellate order in a pre-emption proceeding, the Bench was not called upon to examine all the provisions contained in the West Bengal Land Reforms Amendment Act, 50 of 1981. The question of virus of the provisions contained in the West Bengal Land Reforms Amendment Act 1981 was kept open. With those observations and/or findings the Civil Rule was discharged with the specific finding that on the date of application for pre-emption and the date of passing of the order by the said Court, the opposite party No. 1 continued to be a co-sharer tenant and therefore she had been rightly acknowledged for the order of pre-emption in respect of the transfer made in favour of the petitioner who was admittedly a stranger.
7. It appears further that after delivery of the said judgment a review petition has been filed stating, inter alia, that on the date on which the said judgment was delivered by the Division Bench in Civil Rule No. 741 of 1979, the legislature had passed a Bill being the West Bengal Land Reforms (Third Amendment) Bill, 1984 In the said Bill Section 3-A of the West Bengal Land Reforms Act, 1955 has been proposed to be further amended and the application of the provision of Section 4 of the, West Bengal Estates Acquisition Act, 1953 in respect of the vesting of the rights of non-agricultural tenants and under-tenants had been deleted. It is further stated that the basis of the judgment of the Division Bench in the said Civil Rule is founded upon the absence of the notification under Section 4 of the West Bengal Estates Acquisition Act, 1953. In view of the proposed amendment of Section 3-A in the said Bill, the judgment delivered by the learned judges requires to be re-considered. In view of the provisions contained in the Bill further notification under Section 4 of the West Bengal Estates Acquisition Act with regard to the date of vesting is excluded. Since the- petitioner was not aware of the said Bill at the time of hearing of the above mentioned Civil Rule, the same could not be produced at the time of delivery of the judgment. Developing all these points the application for review was filed On the grounds that in view of the changes made by the West Bengal Land Reforms (3rd Amendment) Bill, 1986, in Section 3-A of the West Bengal Land Reforms Act, 1955, the order dated the 9th September, 1986 passed by the Division Bench requires to be re-considered and/or reviewed.
8. It appears further that Hon'ble Justice Chittotosh Mookerjee (as His Lordship then was), who was one of the Hon'ble judges in the Division Bench to deliver the judgment dated 9th September, 1986 in disposing the Civil Rule No. 741 of 1979 has since retired and since order 47 Rule 5 of the Code of Civil Procedure provides, inter alia, where the Judge or Judges, or any one of the judges,, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. This bench has heard the matter thus sitting singly strictly in terms of the Procedure Code as indicated above.
9. Attention of this Court has. been drawn to a decision of the Supreme Court (A.C. Estates v. Serajuddin and Co. and Anr.) at page 939 of the said decision the apex court found that the power to review his orders on the conditions laid down under Order XLVII of the Code of Civil Procedure has to be appreciated in the proper perspective. It cannot be a, case of review on the ground of discovery of new and important matter for such matter has to be something which existed at the date of the order and there cannot be any review of the order which was right when made on the ground of the happening of some subsequent event (reference was made to Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Madras 1 PC Section 29(5) further gives power to the Controller to Act under Section 151 or Section 152 of the Code of Civil Procedure.
10. Further attention of this Court has been drawn to a case (Raja Shatrunjit by his legal representative v. Mohammad Azmal Azim Khan and Ors.). The said decision considered Review of Order under the U.P. Zamindars' Debt Reduction Act (15 of 1953) and the Section 4 (as amended by Act 20 of 1962). The ratio of the said decision relates to Review of Order under the Act-Order rejecting relief under the Act on ground that conditions of Section 4 are not satisfied can be reviewed after the retrospective amendment of the Section in 1962. In paragraph 11 of the said Judgment it has been recorded that Amendment Act therefore provided that the amendment took effect as if the Amendment Act had been in force on all material dates. The effect of such a deeming clause was stated by the Court in State of Bombay v. Panduranj Vinayak, 1953 SCR 224 at page 246, it has been quoted:-
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion".
The statutory fiction in the said case, was introduced to give full effect to section 4 of the 1952 Act by conferring on the-debtors and creditors the right to apply to the Court for calculation and reduction of debt. It was realised that Courts always passed simple decrees. It was noticed that mortgaged property was not and could not be charged under the decree. It was therefore appreciated that unless the words 'charged under the decree' were deleted the Section could never give any relief to any landlord whose estate had been acquired. In paragraph 13 of the said judgment it was found that on 27 November, 1962, when the matter was heard by the High Court this amendment did not come into the statute book. That is why the judgment-debtor made an, application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25th May, 1953. The High Court by a majority opinion was of the view that the judgment-debtor should be given relief. Under Order 47 of the Code of Civil Procedure the principles' of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previous to that order. The grounds for review are the. discovery of new matters or evidence which, after the exercise of due diligence were not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subhamma Rao v. Rajah Vellanki Venkatrama Rao, (1600) 27 Ind. App. 197 (PC), Lord Davey observed at page 205 of the said report:-
"the Section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event". It was further argued by the Counsel having submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant's contention is found to be not acceptable in the case of the facts of the same case, for two principle reasons ; first it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25th May, 1953 when the 1952 Act came into force. The result is that the Court! is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly, Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in die Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive.
11. The case of Madan Mohan Ghosh and Ors. v. Sishu Bala Atta has also been cited. At page 512 of the said decision it has been found that anybody making an application before the Court in exercise of his right of pre-emption under Section 26-F must show that he is a co-sharer tenant of the holding a portion or share of which has been transferred to a non-co-sharer. If he fails to prove that he is a co-sharer tenant of the holding in question, he cannot claim to have any right of pre-emption under Section 26-F. The primary question which has to be decided in connection with an application for preemption under Section 26-F is, whether the application is a co-sharer in the tenancy or not. In case it is found that he is a co-sharer his application will be held maintainable and he will be entitled to exercise his right of pre-emption, but if he fails to prove the same his application will be dismissed on the ground that he has no such right under Section 26-F. After the date of vesting, each raiyat of a holding ceases to be a co-sharer in respect of that holding as found by us on an interpretation of the different provisions of the Act and the Rules. A raiyat woh was a co-sharer in respect of the holding in question cannot, after the date of vesting, claim to be a co-sharer of another raiyat in respect of the land which he is entitled to retain or retained by him under Sub-Section (1) of Section 6. Such a raiyat is not entitled to make an application for pre-emption under Section 26-F in respect of a transfer made by another raiyat out of the law which he is entitled to retain or which has been retained by him under Sub-section (1) of Section 6. As the raiyat is not a co-sharer and as the holding prior to vesting is no longer in existence. Since in its place land stead separate holdings or tenancies have come into existence by virtue of Sub-section (2) of Section 6 there will be no scope for an application under Section 26-F.
12. The attention of this Court has been drawn to the interpretation of "Saving Clause" as found in Earl Crawford's Book, "Interpretation of Statute" (1946 Edition) at page 612.
13. Having heard Mr. Saktinath Mukherjee with Mr. Baskar Ghosh for the petitioner and Mr. Ranjit Kr. Banerjee, learned Senior Advocate for the other side, this Court finds the only point as to review the judgment dated 9th September, 1986 is that the right to pre-emption was considered in the absence of a valid notification under Section 4 of the West Bengal Estates Acquisition Act not being published mentioning the date on which all the rights and interests of non-agricultural tenants and under tenants shall vest in the state free from encumbrances. Since the law has been amended and the notification has been found to be not necessary, it must be construed the effect of the absence of notification was there on the date of the judgment as on 9th September, 1986. If there is an effective impact of the subsequent legislation with retrospective effect, is considered, then the judgment dated 9th September, 1986 requires to be reviewed in the proper perspective. Regard being had to the materials on record and the change of law as it stood, as discussed above this Court finds merit in the contention of the petitioner seeking review and/or re-consideration of the judgment/ order dated 9th September, 1986. This Court appreciates that in view of the changes made by the West Bengal Land Reforms (3rd Amendment Bill 1986) and Section 3A of the West Bengal Land Reforms Act 1955, the order dated 9th September, 1986 has to be reviewed. This court further appreciates that in view of the changes made in the legal provision relating to the question involved in the revisional application, the order dated 9th September, 1986 has to be re-considered accordingly. The effect of vesting of the rights of non-agricultural tenants and under tenants having been negatived on the ground of absence of the notification under Section 4 of the West Bengal Estates Acquisition Act can no longer be sustained on the face of the change of legal provision.
14. For the foregoing reasons this court reviews the order dated 9th September, 1986 and finds that the order dated 9th September, 1986 discharging the Rule is reconsidered. The review application is allowed After consideration of merit it is found that the claim for pre-emption in view of the change of provision of law cannot be sustained and the Rule shall be deemed to be made absolute by setting aside all the impugned orders allowing the pre-emption which is the subject matter of the Rule in question.
There is no order as to costs.