Kalidasi Nath Vs Obedulla Sheikh

P.K. Bannerjee, J.@mdashIn this rule the petitioner challenges an order passed by the learned Additional District Judge in an appeal against an order passed by the Revenue Officer u/s 8 of the W. B. Land Reforms Act. The application u/s 8 of the W. B. Land Reforms Act was made by the petitioner herein for pre-emption of the suit land as a co-sharer to the holding by observing the formalities required for the purpose. The opposite party''s main objection was that he was not a ca-sharer. The Revenue Officer held that the opposite party is a co-sharer and allowed the application whereupon the opposite party filed an appeal before the Additional District Judge The Additional District Judge allowed the appeal and held that the opposite party is not a co-sharer in view of the Full Bench''s decision reported in Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, . Being aggrieved by the said appellate order the petitioner applicant before the Court bellow for pre-emption moved this Court u/s 115 of the Code of Civil Procedure. Mr. Das Gupta on behalf of the petitioner contended firstly that the District Judge hearing the appeal against the order passed u/s 8 of the Land Reforms Act is not an ordinary Civil Court but a Special Court and therefore the District Judge has no power to transfer the appeal to the Additional District Judge for disposal. Mr. Das Gupta relied upon the case reported in AIR 1958 Cal., 538 (Harendranath v. Daulatmani) for the purpose. Secondly Mr. Das Gupta contended that in view of the different definition of ''holding'' in the West Bengal Land Reforms Act the judgment relied upon by the learned appellate Court, namely, Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, has no application and therefore the petitioner is a co-sharer in respect of the holding and he has right to pre-empt the transfer made.

2. Mr. Roy on behalf of the opposite party however contended that this point is no longer open in view of the judgment of this Court reported in 81 C.W.N., 580 and the Full Bench judgment hereinbefore stated. In our opinion, the District Judge as mentioned in the statute u/s 9 is a District Judge of the ordinary civil Court. In fact this question was agitated before the Division Bench of this Court in the case reported in 81 C.W.N., 580. Their Lordships of the Division Bench followed the Supreme Court decision reported in The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, . The Supreme Court while deciding the question u/s 16 (4) of the Telegraph Act held at paragraph 20 as follows: --

"20. The provisions in the Telegraph Act which contemplate determination by the District Judge of payment of compensation payable u/s 10 of the Act indicate that the District Judge acts judicially as a court. Where by statutes, matters are referred for determination by a Court of Record with no further provision the necessary implication is that the court will determine the matter as a court. (See National Telephone Co. Ltd. v. The Postmaster-General, 1913 AC 546). In the present case the statute makes the reference to the District Judge as the Presiding Judge of the District Court. In many statutes, reference is made to the District Judge under this particular title while the intention is to refer to the Court of the District Judge. The Telegraph Act in Section 16 contains intrinsic evidence that the District Judge is mentioned there as the court of the District Judge. Section 16 (4) of Telegraph Act requires payment into the court of the District Judge such amount as the telegraph authority deems sufficient if any dispute arises as to the persons entitled to receive compensation. Again in Section 34 of the Telegraph Act reference is made, to payment of Court-fees and issue of processes both of which suggest that the ordinary machinery of a court of civil jurisdiction is being made available for the settlement of these disputes. Section 3 (15) of the General Clauses Act states that the District Judge in any Act of the Central Legislature means the Judge of a principal civil court of original jurisdiction other than the High Court in the exercise of its original civil jurisdiction, unless there is anything repugnant in the context. In the Telegraph Act there is nothing in the context to suggest that the reference to the District Judge is not intended as a reference to the District Court which seems to be the meaning implied by the definition applicable thereto. The District Judge under the Telegraph Act acts as a civil court in dealing with applications under Sec. 16 of the Telegraph Act."

In our opinion, the same principle must be applied in this case also. In section 9 (6) of the West Bengal Land Reforms Act the appeal must lie to the District Judge in Which the area is situate, that is reference to the District Court and also taking into consideration the Bengal General Clauses Act, it appears to us that the District Judge as mentioned in section 9 (6) of the West Bengal Land Reforms Act means a Judge of the principal civil Court having jurisdiction over the area in which the and is situate. u/s 2 (12) of the Bengal General Clauses Act, 1899 the District Judge has been defined to mean the Judge of the principal of Civil Court of the original jurisdiction. Mr. Das Gupta however contended that in the present case under rule 8 of the West Bengal Land Reforms Rule; the procedure for hearing the appeal has been prescribed and the Civil Procedure Code, it is argued, has not been applied. In fact Mr. Das Gupta relied upon rule 8(3) in support of his contention. It will appear from the said rule that the appeal should be disposed of after giving opportunity of being heard to the respondent. In section 16(4) of the Telegraph Act also similar provisions are made but that did not make any difference. In our opinion therefore, the District Judge under the West Bengal Land Reforms Act means the District Judge under the Bengal, Agra and Assam Civil Court Act with power to transfer the case to the Additional District Judge u/s 3 of the said Act and the CPC in terms is applicable in respect of the hearing of the appeal. The contention of Mr. Das Gupta must therefore fail. The case reported in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, is one under the Calcutta Thika Tenancy Act, there is a direct Division Bench authority in the case reported in 81 C.W.N., 580 which is a case under the West Bengal Land Reforms Act, as such the case reported in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, being on a different statute is clearly distinguishable.

Mr. Das Gupta contended that the right of pre-emption u/s 8 of the W. B. Land Reforms Act was in respect of the ''holding'' as defined by the said Act and therefore, the case reported in 1972 Cal., 502 has no application. In our opinion, this argument is misconceived. The petitioner purchased on 20th October, 1965 and the application was made within 3 years that is on 14th October, 1968. It appears to us that after the vesting, the intermediary becomes raiyat in respect of the retained and after the vesting as between the State and the person on the land no other relationship except the landlord and the tenant exists. It appears therefore that the tenant becomes raiyat and the West Bengal Land Reforms Act only defines the right and liability of such raiyat under the State Government. Therefore, in respect of such raiyat there cannot be any co-sharer in respect of the land vested in the State and, it has been held by the Full Bench in a case reported in Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, at page 510 as follows: --

"It comes to this, therefore, that even though the land remains undivided till it is demarcated by metes and bounds by the Revenue Officer under sub-paragraph (4) of paragraph 7 of the Sch. ''B'' to the Rules, the undivided share of the raiyat in the land which he is entitled to retain as an intermediary becomes the subject matter of a separate tenancy directly under the State on and from the date of vesting."

In our opinion, therefore, the application for pre-emption has been rightly dismissed by the Additional District Judge.

In our opinion, therefore, this Rule must fail and the same is discharged.

There will be no order as to costs.

G.N. Ray, J.

I agree.