Calcutta High Court
Sk. Abdul Gaffar vs Mira Das Roy And Ors. on 13 January, 2006
Equivalent citations: 2006(2)CHN5
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first miscellaneous appeal is at the instance of a respondent in proceedings under Section 24 of the West Bengal Non-agricultural Tenancy Act and is direction against an order of pre-emption dated 6th December, 1986 passed by the learned Assistant District Judge, 5th Court, Alipore in Miscellaneous Case No. 23 of 1983 under the West Bengal Non-agricultural Tenancy Act.
2. The respondents herein filed an application under Section 24 of the West Bengal Non-agricultural Tenancy Act claiming pre-emption of a transfer in favour of the appellant. Such application gave rise to Miscellaneous Case No. 23 of 1983. The present appellant contested the proceedings by filing written objection and ultimately, the learned Assistant District Judge by order dated 5th December, 1986 allowed the said miscellaneous case thereby passing an order of pre-emption in favour of the respondents.
3. Being dissatisfied, the appellant has come up with the present first miscellaneous appeal.
4. Mr. Banerjee, the learned senior advocate appearing on behalf of the appellant, has, at the very outset, before entering into the merit of the matter, submitted before us that in view of the enactment of the West Bengal Land Reforms (Third Amendment) Act, 1986 during the pendency of this appeal, the order of pre-emption is liable to be set aside as after such amendment, there is no scope of considering the application under Section 24 of the West Bengal Non-agricultural Tenancy Act which was filed by the respondent after the coming into operation of Section 2 of the said Third Amendment Act of 1986. Mr. Banerjee points out that Section 2 of the aforesaid Amendment Act having incorporated a new provision of Section 3A in the West Bengal Land Reforms Act with effect from 9th day of September, 1980, the application for pre-emption filed on 18th July, 1983 before the Trial Court under the provisions of the West Bengal Non-agricultural Tenancy Act is liable to be dismissed. He, however, fairly submits that this Court instead of dismissing the application altogether should permit the respondent to amend the original application for pre-emption in conformity with the provision of Section 8 of the West Bengal Land Reforms Act and the matter should be remanded to the appropriate Court having jurisdiction to entertain such proceedings. In support of such contention Mr. Banerjee places reliance upon the decision of a Division Bench of this Court in the case of Niranjan Khanra and Anr., v. Shyamal Kumar Mukherjee and Ors., reported in 93 CWN 289.
5. Mr. Chatterjee, the learned advocate appearing on behalf of the respondents, however, opposed the aforesaid contentions of Mr. Banerjee and contended that in this case the learned Trial Judge having passed the order of pre-emption on 6th December, 1986 at a point of time when the West Bengal Land Reforms (Third Amendment) Act, 1986 was not passed, the right accrued in favour of his client should not be taken away. He, thus, prays for dismissal of the appeal after confirming the order of the learned Trial Judge on merit.
6. After hearing the learned Counsel for the parties and after going through the materials on record we find that at the time of passing of the order of preemption by the Trial Court the aforesaid West Bengal Land Reforms (Third Amendment) Act, 1986 was not passed but the same was assented to by the President of India on 12th May, 1989, during the pendency of this appeal and by Section 2(5) thereof, the new Section 3A of the West Bengal Land Reforms Act was specifically given retrospective operation with effect from 9th day of September, 1980.
7. Therefore, the legislature by the aforesaid amendment made it clear that for all purposes it should be presumed that Section 3A of the West Bengal Land Reforms Act was incorporated and came into force from 9th day of September, 1980.
8. The effect of the aforesaid amendment during the pendency of this appeal has made the application for pre-emption under Section 24 of the West Bengal Non-agricultural Tenancy Act infructuous, inasmuch as, on 18th July, 1983, the date of filing of application for pre-emption in this case, the respondent had no right to claim pre-emption under the West Bengal Non-agricultural Tenancy Act according to the said amendment. As laid down by the Apex Court in the case of Laxmi Narayan Guin v. Niranjan Modak, reported in AIR 1985 SC 111, an appeal is a continuation of the suit and notwithstanding the fact that the suit was decreed before enactment of the new law, such new law having been given retrospective operation from a date prior to the filing of the present proceedings for pre-emption, the same should be disposed of in accordance with the new law.
9. In such a situation, we respectfully follow the principle laid down by a Division Bench of this Court in the case Of Niranjan Khanra and Anr. v. Shyamal Kumar Mukherjee and Ors.,, reported in 93 CWN 289 wherein it was held that a law can never require a party to do the impossible and such 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 in a Court specified by that law and accordingly, we set aside the order of pre-emption passed by the learned Trial Judge and transfer the application for pre-emption to the Court of Civil Judge (Junior Division), having territorial jurisdiction with a direction to treat the same as one filed under Section 8 of the West Bengal Land Reforms Act, 1955 as amended by the West Bengal Land Reforms (Third Amendment) Act, 1986 and to try and dispose of the same in accordance with the relevant provisions of that Act. The learned Civil Judge (Junior Division) to whom the application shall be transferred under our order for disposal must note that nothing should prevent the respondent from making 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 further deposit by the respondent in terms of Section 8 of the Act.
10. We make it clear that we have not gone into the merit of the application for pre-emption and the learned Civil Judge (Junior Division) will dispose of the proceedings after giving opportunity to the respondent to make necessary amendment of the application for pre-emption, if necessary, due to the change of the existing law.
11. The appeal is, thus, disposed of with the aforesaid observation. In the facts and circumstances, there will be, however, no order as to costs.
Prevendu Narayan Sinha, J.
12. I agree.