@JUDGMENTTAG-ORDER
1. These two Rules arise out of two proceedings for pre-emption which have failed in the courts below. These Rules have been referred to the Division Bench by a learned Single Judge of this Court as it involves an important question as to whether an appeal lay before the learned District Judge in view of the decision of that court to the effect that no such appeal lay in the absence of any provision of law. The petitioners to this Court were the applicants for pre-emption in the courts below.
2. The relevant facts are more or less, identical and are undisputed. The petitioners claimed that they were co-sharers tenants with the pro forma opposite parties in respect of the disputed Lands. The said pro forma opposite parties transferred the lands in dispute in favour of the principal opposite party in one case on 3-10-62 and in another on 1-10-62. Such transfers being effected by the co-sharer in respect of a part of the joint holding it was claimed that the petitioners are entitled to pre-empt. Such right was claimed in view of the provisions of Section 26-F of the Bengal Tenancy Act and Section 6(2) of the West Bengal Estates Acquisition Act read with Rule 4 framed under the said Estates Acquisition Act.
3. The trial Court rejected these applications by holding that as the Bengal Tenancy Act has not been made applicable to Coochbehar and Section 8 of the Land Reforms Act had not then come into effect, even if Rule 4 of the Estates Acquisition Rules confers a right to preempt to the petitioners, there is nothing in the Rule or the Act to show that the procedure provided u/s 26-F of the Act is to be followed.
4. The petitioners preferred appeals before the learned District Judge who, however, dismissed the appeals summarily by holding that there is no provision of law under which such appeals could be preferred. Aggrieved by these decisions the petitioners have moved this Court u/s 115 of the CPC and Article 227 of the Constitution and have obtained these Rules.
5. Mr. Tarafdar is appearing in support of these Rules which are not being contested by the opposite parties. According to Mr. Tarafdar the courts below were in error in holding that the procedure prescribed by Section 26-F of the Bengal Tenancy Act was not available to the petitioners for enforcing their right of pre-emption.
6. In our opinion, both the courts below are clearly in the error. In our view, the petitioners claimed pre-emption u/s 26-F and that application having been dismissed even if on a view that the said provision is not attracted and is not applicable, yet an appeal Lay u/s 26-F (10) for considering the issue as to whether the procedure as prescribed in the said section is or is not available to the petitioners. The proceeding being one u/s 26-F, the appeal is provided by Sub-section (10) thereof and the court of appeal below was therefore clearly in the error in thinking that there was no provision in law providing for the appeal.
7. So far as the trial court''s order is concerned, in our view, the said court is also in error in thinking that the procedure provided for by Section 26-F of the Act was not available to the petitioners. The transfer was in October 1962, that is, after the vesting under the provisions of the West Bengal Estates Acquisition Act and the decision of the trial court was rendered on November 30, 1962. The trial court was undoubtedly correct in its conclusion that on that date Section 8 of the Land Reforms Act had not come into effect. It was equally correct in its conclusion that the B. T. Act as a whole had not been extended to Coochbehar or the corresponding Coochbehar Tenancy Act had not been repealed or superseded the Coochbehar Assimilation of Laws Act 1950 brought into force into the territory of Coochbehar. Only such laws were extended as relate to any of the matters enumerated in the list Nos. 1 and 3 in the 7th Schedule to the Constitution which does not cover the tenancy law. But what the trial court failed to appreciate is the fact that though the B. T. Act as a whole had not been extended to Coochbehar, yet on the vesting of the interest of the intermediaries what was retained by those intermediaries in Coochbehar were retained as occupancy raiyats under the B. T. Act with many of the incidents thereof. Reference may be made to the decision of this Court in the case of
"An intermediary who is entitled to retain possession, of any land under Sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant, subject to such, terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this Act and as entered in the record- of-rights finally published under Chapter V except that no rent shall be payable for land referred to in Clause (h) or (i) :
Provided that if any tank fishery or any land comprised in a tea-garden, orchard, mill, factory or workshop was held immediately before the date of vesting under a lease, such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date subject to such modification therein as the State Government may think fit to move."
8. In this provision, whatever is retained by the intermediary is so retained as a tenant under the State on terms and conditions as prescribed by the rules framed under the Act. Rule 4 in the relevant part as it was in force on the relevant date provided as follows :
"(3) If the land held by the intermediary be agricultural land, then-- (i) he shall hold it mutatis mutandis, on the terms and conditions mentioned in Sections 23, 23-A, Clause (a) of Section 25, Sections 26 to 26-G, 52 to 55, Sub-sections (1) and (2) of Section 56. Sections 65, 67 Sub-section (1) of Section 68, Sections 73, 86-A, Sub-sections (1), (2) and (3) of Section 87, so much of Section 159 as does not relate to protected interests, Sections 161 to 163, 166, Sub-sections (1), (2) and (3) of Section 167, Section 168, Sections 169 to 171 and Sections 173 to 177 of the Bengal Tenancy Act. 1885."
9. In 1964 this Rule was further amended and Section 26-F was deleted. But we are not concerned with such amendment as it was not made retrospective and on the facts of the present case the right to pre-empt accrued before the 1964 amendment on the provisions of Rule 4 as it was in existence on the date of the transfer. In our view, on the provisions of Section 6(2) read with Rule 4, Section 26-F of the B. T. Act was fully made applicable to the lands held by the petitioners as intermediaries after the vesting. There is no dispute that the provisions of the West Bengal Estates Acquisition Act were applicable to Coochbehar. If that is so, both the right and the procedure for enforcement of that right were equally available to the petitioners and so long as the right survives, the procedure too survives This being the position, the view taken by the trial court is clearly erroneous and the said court could no1 have dismissed these applications on a view that the procedure prescribed by law for enforcement of the right of pre-emption was not available to the petitioners. Though on the conclusions as above. Mr. Tarafdar succeeds in his contention that the courts below dismissed the application for pre-emption on erroneous grounds, yet there is a serious impediment to the petitioners obtaining the relief by way of pre-emption which arises on the admitted facts of the present case. On the application for pre-emption itself it has been clearly admitted and alleged that the petitioners and the pro forma opposite parties were co-sharers of a holding which was held by them since before the vesting. It is not the petitioners'' case that the joint holding was acquired jointly after the vesting or that they became co-sharers by virtue of any subsequent inheritance or acquisition of a part of the holding That being so, on the decision of this Court in the case of
10. On the conclusions as above, these applications fail and the orders of the courts below must be upheld though for reasons other than those given by them. These Rules are discharged.
11. There will be no order as to costs.
12. The petitioners would now be entitled to get refund of the amounts which they had deposited support of their claim for pre-emption from the courts below.
13. Let the records be sent down as early as possible.
