Sen, J.@mdashThis revisional application is directed against the order of Shri T. Bhattacharyya, Subordinate Judge, Third Court, Midnapore, allowing in appeal an application for pre-emption u/s 25F of the Bengal Tenancy Act. The facts of the case are briefly as follows:
2. There was an occupancy raiyati holding which is interest No. 319 of Gohaldanga Mouza with an area of 12 bighas. held by one Chandra Mohan Sen. By amicable partition among the heirs of Chandra Mohan 7 bighas fell to the share of Bir Singh and he sold this land to opposite party No. 1, Sudarshan Dey, the applicant for pre-emption, by a kobala, dated April 20, 1951. Mahendra Sen, who obtained 5 bighas of the land of the holding and who is now Petitioner No. 2, sold 1 bigha 9 outtakes of land out of his share of 5 bighas to Ganesh Chandra Mahato, who is now Petitioner No. 1, by a kobala, dated August 7, 1955, for the consideration of Rs. 300. It is in respect of this sale, dated August 7, 1955, that opposite party No. 1, Sudarshan Dey, filed the application for pre-emption on December 9, 1955. The present Petitioners, namely, the transferee and the transferor by the kobala, dated August 7, 1955, filed two separate objections and opposed the application for pre-emption. They, alleged that the kobala of August 7, 1955 was really a benami kobala and not a real transfer and that therefore no application for pre-emption was maintainable. They also took the objection that the interests of all occupancy raiyats in the Midnapore District had become vested in the State of West Bengal and that in the circumstances the application for pre-emption was no longer maintainable.
3. The learned Munsif, who dealt with the application in the first instance, decided both the issues in favour of the objectors. He held that it was really a benami transfer there being no payment of consideration and no delivery of possession and that, therefore, the application for pre-emption was not maintainable. He also held that since the interests of the occupancy raiyats in the Midnapore district had become vested in the State of West Bengal the application for pre-emption by one such raiyat was no longer maintainable. On these findings the learned Munsif dismissed the application.
4. There was an appeal filed in the District Court by the applicant Sudarshan Dey. The learned Subordinate Judge, who heard the appeal, reversed the findings of the trial court on both the issues. He held that the transfer was not a Benami transfer. He also held that whatever be the result of the vesting of the interests of the occupancy raiyats in the State of West Bengal, the applicant had already an existing right for obtaining pre-emption when the vesting took place and this existing right could not be defeated. The learned Subordinate Judge, therefore, allowed the application for pre-emption. Against that order the transferee as well as the transferor of the kobala of August 7, 1955 have, as Petitioners, filed this revisional application.
5. The finding of the learned lower appellate court that the transfer was not a benami transfer is a finding on question of fact and cannot, therefore, be challenged before me. Mr. Mookerjee in this connection has only referred to the fact that the transferee,, namely Petitioner No. 1, Ganesh, had executed a nadabi deed stating that he had acquired no interest in the subject-matter of the sale deed and that the learned lower appellate court did not consider the effect of the execution of the Nadabi lease, which would create estoppel against the transferee, namely Petitioner No. 1. The learned Subordinate Judge pointed out that the nadabi deed had been executed on December 21, 1955, that is 12 days after the application u/s 26F of the Bengal Tenancy Act for pre-emption had been filed, and in the circumstances he came to the conclusion that the Nadabi deed was a collusive document executed in order to defeat the claim of the applicant for pre-emption. I see no reason to differ from the finding of the learned Subordinate Judge on this point.
6. The main argument of Mr. Mookerjee, however, relates to the maintainability of the application u/s 26F of the Bengal Tenancy Act in the changed circumstances brought about by the West Bengal Estates Acquisition Act, 1953. and the notifications issued thereunder. Under the West Bengal Estates Acquisition Act, 1953, as originally enacted, the interests of the occupancy raiyat or the under-raiyats, were not affected. Only the interests of the proprietors and the intermediaries were affected by the original enactment. But the West Bengal Act XXXV of 1955, which came into force on November 25, 1955, introduced the present Chapter VI relating to the acquisition of the interests of the raiyats and the under-raiyats by the State of West Bengal. Section 49 of the Act provides that the provisions of Chapter VI shall come into force on such date and in such district or part of a district as the State Government may, by notification in the Official Gazette, appoint. Section 52 of the Chapter provides that on the issue of a notification u/s 49 the provisions of Chapters II, III. v. and VII shall, with such modifications as may be necessary apply to raiyats and under-raiyats as if such raiyats and under-raiyats are intermediaries and the land held by them are estates. The Government of West Bengal by notification No. 6804 L. Ref. of April 9, 1956 appointed April 10, 1956 as the date on which Chapter VI would come into force in all the districts of West Bengal. On April 13, 1958 the Government of West Bengal issued notification No. 7207 L. Ref., and under that notification published notification No. 6843 L. Ref., dated April 10, 1955, by which with effect from the 1st day of Baisakh, 1363 P.S. all lands held by raiyats and under-raiyats and the right of every raiyat and under-raiyat therein situated in the district of Midnapore would become vested in the State Government free from all encumbrances. Thus the new law was brought into tore only in the district of Midnapore. We are in this application concerned with lands in the, district of Midnapore.
7. Mr. Mookerjee''s principal argument is that the right of every occupancy raiyat having become vested in the State Government, the applicant has no subsisting right to obtain pre-emption and therefore he is not competent to maintain the application for preemption and obtain an order therein in his favour. Mr. Mukherjee has argued that in order to obtain an order for preemption the right must exist at the time when the sale is held, at the time when the application for pre-emption is made and at the time when the order for pre-emption is made; and if the right does not exist at any one of these times no order for pre-emption can be obtained by the application. In support of this proposition Mr. Mookherjee refers to a ruling of this High Court in the case of Nuri Mian v. Ambica Singh (1916) 20 C.W.N. 1099. The view taken in this case was that the right of the Plaintiff to get pre-emption must exist not only at the time of the sale, but also at the time of the institution of the suit and finally up to and at the date of the decree of the trial court. It should be mentioned, however, that this was a suit relating to the exercise of the right of pre-emption under the Muslim law and in deciding the case their Lordships relied not on the principles of general law but on principles of Muslim law as contained in the relevant text books of Muslim law like Hedaya. Mr. Mookerjee has next referred to a ruling of Henderson, J. in the case of Ramendranath Roy Chowdhury v. Jitendra Nath Chakravarty (1937) 42 C.W.N. 382. This was a case of pre-emption u/s 26F of the Bengal Tenancy Act as it was after the amendment of 1928 but before the amendment of 1938, that is, when the superior landlord had the right to apply for preemption. Henderson, J. held that in order that an applicant may successfully exercise a right of pre-emption u/s 26F of the Bengal Tenancy Act, he must be the superior landlord not only at the time he makes his application but also at the time when an order for pre-emption under Sub-section (5) of Section 26F is made. In delivering judgment Henderson, J. referred to the earlier Division Bench ruling in Nuri Mian v. Ambica Singh (1916) 20 C.W.N. 1099, already referred to, and observed that though that case was decided under the principles of Mohamedan law the same principles would apply to a case of preemption u/s 26F of the Bengal Tenancy Act. I should point out, however, that not only this was a single Bench decision but the principle has not been followed in subsequent cases. In the Full Bench case of Jatindra Nath De v. Jetu Mahato (1946) 50 C.W.N. 502, it was held that the landlord, who had obtained a right to apply for pre-emption on a certain sale having taken place, could apply for pre-emption even after the Bengal Tenancy Amendment Act of 1938 had come into force whereupon the landlord had no longer any right to obtain pre-emption. It was held that under the general rule of interpretation as also u/s 8(c) of the Bengal General Clauses Act, in cases where right to preempt had already accrued to a landlord before the Bengal Tenancy Amendment Act of 1938 had come into operation, the landlord could avail of the old procedure, and exercise his right by an application and the procedure laid down in the old Section 26F would be followed. In this case, therefore, the full Bench held that it was sufficient that the applicant had acquired the right to apply for pre-emption at the time of sale and it was not necessary that at the time of making the application for enforcing the right and at the time when the order of the court might be passed he should continue to have the right to obtain pre-emption. In such a case, therefore, it has been held by the Full Bench that Section 8(c) of the Bengal General Clauses Act applies and the right of pre-emption, which has accrued to a party, cannot be lost by a subsequent change in the law. Mr. Mookerjee has stated that in the Full Bench case, the applicant at least remained a landlord. But similarly, in this case before us, this applicant remains a co-sharer tenant. Mr. Mookerjee has urged that the changes introduced by the Estates Acquisition Act, as amended by Act XXXV of 1955, and the subsequent notifications referred to, are drastic changes and that since all the rights of the raiyats are vested in the State the applicant cannot avail of the principle laid down in Section 8(c) of the Bengal General Clauses Act. In support of this contention Mr. Mookerjee has referred to a number of provisions of the West Bengal Estates Acquisition Act, 1953.
8. Relying on the terms of notification No. 6843 L. Ref., dated April 10, 1956, first, it has been urged that if all the lands held by raiyats and under-raiyats and the rights of every raiyat and under-raiyats therein have become vested in the State free from all encumbrances, there cannot possibly remain any right in any erstwhile occupancy raiyat to apply for pre-emption. It is true that under the terms of the notification the right of every raiyat in his land has vested in the State Government, but there is nothing in the notification to show that his right to apply as a co-sharer for pre-emption in land which is not in his possession has also vested in the State Government. The notification no doubt says that the land of the raiyat shall vest in the State Government free from all encumbrances, but the right to apply fat and enforce pre-emption in respect of a plot of land sold is not an encumbrance. Encumbrance is defined in Section 161 of the Bengal Tenancy Act as meaning any Hen, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in Section 160. Section 2(p) of the West Bengal Estates Acquisition Act provides that expressions used in this Act and not otherwise defined shall have the same meaning as in the Bengal Tenancy Act. Accordingly, the general definition of encumbrance in Section 161 of the Bengal Tenancy Act may be adopted for the purpose of the present case, and it must be held, therefore, that the right of a co-sharer to pre-empt is not an encumbrance and is not lost when the land vests in the State. Taking as a whole the relevant provisions of the Estates Acquisition Act of 1953, the position appears to be that though the lands are vested in the State Government the raiyat still retains his homestead and 25 acres of agricultural land according to his choice under the provisions of Section 6 of the Act, and in respect of any remaining land of which he may be in khas. possession he has the right to obtain compensation under the provisions of the Estates Acquisition Act itself, and until the Collector takes over the remaining land under the provisions of Section 10 of the Act the raiyat will continue necessarily to be in possession thereof; and meanwhile as against everybody except this State he will have his all existing rights in the land and he will have his existing rights in the 25 acres of agricultural land which he is, in any case, entitled to retain. It should be observed also that the Bengal Tenancy Act is not repealed by the provisions of the West Bengal Estates Acquisition Act of 1953. West Bengal Land Reforms Act of 1955, of which Section 1 came into force on March 30, 1956 and of which Section 19 relating to bargadars has been also brought into force, provides in Section 59 for the repeal among other Acts of the Bengal Tenancy Act of 1885; but this section of the Act has not been brought into force except in respect of the repeal of the West Bengal Bargadars Act. When the Bengal Tenancy Act is repealed and the West Bengal Land Reforms Act of 1955 is brought into force in its entirety, occupancy-rajtyata will become raiyats simplicitor entitled to possess 25 acres of agricultural land and also their homestead land in addition thereto, and the incidents of the raiyati holding will be governed by the Land Reforms Act. It may be mentioned that there are provisions in the Land Reforms Act for the transfer of a raiyati land (vide Section 5), and for the rights of purchase or pre-emption in case of such transfer by a co-sharer or by the holder of the contiguous land (vide Section 8) and the procedures for the exercise of such right of pre-emption is also provided in Section 9. Until these provisions are brought into force the provisions of the Bengal Tenancy Act must be deemed to govern the rights and incidents of the tenancy for agricultural purposes. In the view of the provision that the raiyat will be entitled at least to 25 acres of land and in view of the fact that at present the raiyats in Midnapore are actually continuing in possession of their lands as the Collector has not yet arranged to take over the surplus land u/s 10 of the Act, it cannot be expected that in the meantime there will be no provision of law governing the rights and liabilities of the tenants inter se. The Bengal Tenancy Act has not been repealed; neither has the Land Reforms Act come into force. At the present time, in spite of the vesting in the State Government, therefore, the provisions of the Bengal Tenancy Act must be deemed to continue to govern the rights and incidents of the tenancy for agricultural purposes, and therefore Section 26F of the Bengal Tenancy Act has not become obsolete and the rights thereunder can be exercised until in any case the Bengal Tenancy Act has been repealed and the Land Reforms Act has been brought into force in its entirety.
9. The lower appellate court relied on Section 8(c) of the Bengal General Clauses Act for holding that the rights of pre-emption already acquired before notification No. 6843 L. Ref. of April 10, 1956 came into force and even before the amending Act XXXV of 1955 had come into force would not be lost in the absence of express provision made to that effect in the new law. Strictly speaking it is not a case where Section 8(c) of the Bengal General Clauses Act applies, because as already pointed out the Bengal Tenancy Act has not yet been repealed. There are only the provisions of the new Act together with the notification issued thereunder which have been brought into force and Mr. Mookerjee has relied strongly on the provisions of Section 3, which give overriding force to the provisions of the West Bengal Estates Acquisition Act of 1953. Section 3 provides that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law or any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. It is true that the provisions of the Act will have overriding effect over the rights obtained by the tenants under the Bengal Tenancy Act. But there is no provision in the West Bengal Estates Acquisition Act of 1953 which expressly provides that the raiyats. until the Government actually takes over the land, will not continue to be governed by the provisions of the Bengal Tenancy Act; there is nothing in the West Bengal Estates Acquisition Act relating to the incident of the tenancy of the raiyat, who may, in any case, retain his homestead and 25 acres of land. Thus though new and overriding provisions of law have come into force the Bengal Tenancy Act has not. been repealed and as there is nothing expressly contrary, thereto in the West Bengal Estates Acquisition Act of 1953, I would hold that the provisions relating to pre-emption of the raiyati rights will continue to be in force. In this connection while Section 8(c) of the Bengal General Clauses Act does not apply, the principle enunciated by the Judicial Committee in the case of Delhi Cloth and General Mills Company Limited v. Income Tax Commissioner, Delhi (1927) L.R 54 IndAp 421, 425, will have application, viz., that the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The right of pre-emption is a right in existence when the provisions of the statute, namely, the West Bengal Estates Acquisition Act of 1953 together with the amending Act XXXV of 1955 and the notifications, were brought into force; in the absence of express provisions therein the right of pre-emption cannot, in my opinion, be affected.
10. Mr. Mookerjee has strenuously urged that after the lands of the raiyats and all their rights therein have vested in the State Government in view of the notification referred to, it is idle to suggest that a raiyat still has the right of pre-emption given to him u/s 26F of the Bengal Tenancy Act. But as I read the terms of Chapter VI and the notifications and other relevant provisions of the Act, the result is not to disturb the existing rights and incidents of the raiyats and under-raiyats under the Bengal Tenancy Act as amongst themselves. These right and incidents are maintained subject only to the power of the Collector as the agent of the State to take over the land in excess of the prescribed limit. Thus the provisions of Chapter VI and the notification thereunder provide an easy method to the Government to acquire surplus land of the raiyats and distribute the same among landless persons and among persons who did not have sufficient land, without having to proceed under the cumbrous provisions of the Land Acquisition Act. But this taking over of surplus land is also made subject to the liability of the State Government to give compensation at the scale prescribed by the Estates Acquisition Act. So even in respect of the surplus land the raiyats do not lose all their right, because they hold the surplus land until the Collector takes them over and they get compensation for them when the Collector takes them over. In the meantime, therefore, there must be some provisions of law governing the incidents of the tenancy, and until the provisions of the Land Reforms Act come into force and in view of the fact that the Bengal Tenancy Act has not been repealed, it must be held that the rights of the raiyats will continue to be governed by the Bengal Tenancy Act.
11. Mr. Mookerjee has also urged that the right to obtain preemption is an incident of the occupancy raiyati holding, and only the holder of an occupancy raiyati jote may apply for preemption, and that after the vesting in the State Government, even if the agriculturists continue to have raiyati interest, occupancy raiyati interest has, in any case, ceased to exist. It is true that under the provisions of the Bengal Tenancy Act only a co-sharer in an occupancy raiyati jote may apply for preemption u/s 26F'' of the Bengal Tenancy Act and the provisions of Section 26F do not apply to any other class of raiyat. It does not even apply to a raiyati holding at a fixed rate of rent. Mr. Mookerjee has, therefore, urged that after the vesting, when all agriculturists became raiyats directly under the State Government, there is no scope for the exercise of the right of preemption. Even in this respect, however, I would hold that until the provisions of the Land Reforms Act have not come into force the classes of raiyats as in the Bengal Tenancy Act will continue to exist in the transition period. In this connection reference may be made to Section 39 of the Estates Acquisition Act under which the State Government may make an order for preparation of the record-of-rights or for revision of the record-of-rights and the rules relating thereto made Under the Act, particularly Rule 26, which directs the authority preparing the record-of-rights to record the class of tenants; and the classes of tenants indicated are the classes of raiyats under the Bengal Tenancy Act including occupancy raiyats. In the circumstances, it cannot be urged that the occupancy raiyats have become raiyats and they can no longer exercise the right of pre-emption. Apart from the retention of the existing classes of raiyats in the transitional stage, the applicant opposite party No. 1 in the present case had acquired the right of pre-emption before the vesting order came into existence and therefore his right, in any case, cannot be affected.
12. Mr. Mookerjee has referred to the provisions of Section 5B of the West Bengal Estates Acquisition Act, which provides that from June 1, 1954 no estate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1859 or the Bengal Patni Taluks Regulation, 1819 or the, Bengal Tenancy Act, 1885, as the case may be, and any sale which took place on or after that day under any of those Acts or that Regulation shall be deemed to have been void and of no effect, and the arrears for which the sale is held shall remain a liability and shall bear simple interest at a certain rate. Mr. Mookerjee has argued that a statutory sale takes place by an order of pre-emption u/s 26F of the Bengal Tenancy Act and all sales under the said section of the Bengal Tenancy Act are prohibited by the provisions of Section 5B of the West Bengal Estates Acquisition Act, and therefore, no order for pre-emption can be made after the Estates Acquisition Act has been made applicable to the, land of the raiyats in Midnapore district It is dear, however, on a reference to the terms of Section 5B of the Estates Acquisition Act that the sales referred to therein are sales for arrears of rent as under Chapter XIV of the Bengal Tenancy Act, otherwise there would be no meaning in the proviso to the section referring to the arrears of rent and interest which such arrears shall bear. This section has, in my opinion, no bearing on the question as to whether the court has the right to make an order of pre-emption which will have the effect of statutory sale.
13. Mr. Mookerjee has also referred to certain provisions of Section 5A of the Estates Acquisition Act. Under that section the State Government may after the date of vesting enquire into any case of transfer of land between May 5, 1953 and the date of vesting, if there is prima facie reason for believing that the transfer was not bona fide. Under Sub-section (3) if the State Government finds on enquiry that the transfer was bona fide it shall make an order to that effect and thereupon the land shall be deemed to be land of the transferee for the purposes of the Act. Mr. Mookerjee has relied on this provision to urge that where the transfer under consideration in this case has been found to be a bona fide transfer, the land must be deemed to be the land of the transferee, that is, of Petitioner No. 1 and it is, therefore, not possible that the applicant for pre-emption, that is, opposite party No. 1,. should obtain possession of the land in exercise of an order for preemption. I must hold, that the provisions of Section 5A cannot be applied to a proceeding for pre-emption u/s 26F of the Bengal Tenancy Act. Section 5A of the Estates Acquisition Act was enacted in order to avoid collusive transfer of khas land to relatives of the proprietors and tenure-holders. This is clear from Sub-section (7) of that section. Moreover, in the present case there has been no enquiry by the State Government as to the bona fides or otherwise of the transfer. Therefore I do not think advantage can be taken of the provisions of Sub-section (3) of Section 5A for supporting-the argument that no order for pre-emption is possible at the present time.
14. Lastly Mr. Mookerjee''s argument is that u/s 6 of the Estates -Acquisition Act the raiyat has the right to retain possession of his homestead and of 25 acres of agricultural land, which is in his khan possession at the time of vesting; that as regards the land which is the subject-matter of pre-emption it was still in the possession of either the transferor or transferee, that is, Petitioner No. 2 or Petitioner No. 1 at the time when vesting order took place on April 10, 1956, with effect from April 14, 1956; and therefore, it was not competent for the lower appellate court to pass an order for pre-emption which would have the effect of transferring the possession of khas land from Petitioner No. 2 or Petitioner No. 1 to opposite party No. 1, the applicant for preemption. This argument also does not appeal to me. The State Government is required to set up a machinery for taking charge of the surplus land u/s 10 of the Estates Acquisition Act and for distributing the same, and it will necessarily take a fairly long time to complete the arrangement. In the meantime although there is the vesting order it cannot be expected that there will be ho transfer either voluntary or by the operation of law of the land of the raiyats. Section 5B of the Estates Acquisition Act prohibits sales in execution of decree for arrears of rent under Chapter XIV of the Bengal Tenancy Act. But sales in execution of any other decree, for example, a money decree, are not barred u/s 5B. Similarly private sale is not barred u/s 5B of the Estates Acquisition Act. Even after the vesting order has been passed, I have already pointed out that the raiyats will continue to have some interest in the land. Even if they have land over the prescribed limit of 25 acres they have the right to receive compensation for the same and therefore there can be no reason why they would be unable to transfer.
15. In view of the reasons discussed I would hold that in spite of the fact that there is a notification in respect of all the lands and raiyats and under-raiyats in Midnapore district vesting their interests in the State Government the provisions of the Bengal Tenancy Act continue to be in force so long as the land remains in the possession of the raiyats and so long as the Bengal Tenancy Act has not expressly repealed and the West Bengal Land Reforms Act has taken in its place; and therefore there can be no bar to a court making an order for pre-emption. In this particular case further, the right of pre-emption accrued long before the Estates Acquisition Amendment Act XXXV of 1955 and the notifications issued thereunder were brought into existence, and therefore in the present case there is an additional reason why it should be competent for the courts below to pass an order for pre-emption on a proper application u/s 26E of the Bengal Tenancy Act.
16. Accordingly this application fails and the Rule is discharged but no order is made as to costs.
