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PETITIONER: STATE OF WEST BENGAL AND OTHERS.

       Vs.

RESPONDENT: ASHIT NATH DAS AND OTHERS

DATE OF JUDGMENT27/01/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) RAY, B.C. (J)

CITATION:  1988 AIR  729            1988 SCR  (2) 818  1988 SCC  (2) 209        JT 1988 (1)   245  1988 SCALE  (1)204

ACT:      West Bengal  Estates Acquisition  Act,  1953:  Sections 6(5), 44(2a)  and 47-Revenue  officers order  questioned  in appeal before  the Addl. District Judge/Competent Authority- Private party  obtaining opinion  of  Advocate  General  and moving application  for decision  in terms  of such opinion- District Judge  rejecting plea  and fixing  the  appeal  for hearing-High  Court   under   Article   227   quashing   the proceedings-Supreme Court-Under Article 136 held decision of High  Court  without  jurisdiction-Quashed  Lower  appellate court directed to dispose of appeal .      Practice  and  Procedure-Written  opinion  of  Advocate General- Application  to Court  by private party that appeal be disposed  of in  accordance with  opinion-District Judge. Rejecting application- Whether valid.

HEADNOTE: %      As a  result of  the order  passed by  the High  Court, proceedings under  s. 44(2a)  of  the  West  Bengal  Estates Acquisition Act,  1953 were re-opened by the Special Revenue officer and final orders were passed on 9.2.1982.      The Ist  respondent preferred  an appeal  against  this order  before   the  9th   Additional  District  Judge,  the competent authority  to hear  an appeal.  On 1.12.83 the Ist respondent obtained  an  opinion  of  the  Advocate  General regarding the  aforesaid proceedings, and filed that opinion with an application.      The  Additional  District  Judge  passed  an  order  on 25.2.86 rejecting  the prayer of the Ist respondent that the appeal be  disposed of in accordance with the opinion of the Advocate General,  but observed  that  the  opinion  of  the Advocate General  could only be looked into as the ground of appeal on  behalf of the Ist respondent. The date of hearing of the  appeal was  fixed on 19.4.86 to suit the convenience of the Advocates of the parties.      A petition  under Art.  227 was filed in the High Court against the 818 aforesaid order  by  the  Ist  respondent.  The  High  Court treated this  petition as a revision application challenging

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the  order  passed  by  the  Additional  District  Judge  on 25.2.86, and  held that the Additional District Judge should have disposed  of the  appeal in accordance with the opinion of the  Advocate General,  and quashed the proceedings under Section 44(2a)  as well  as  the  appeal  that  was  pending hearing before the Additional District Judge.      Allowing the Appeal by the State this Court, ^      HELD: l. The High Court lost sight of the fact that the only grievance  against the  order  of  the  9th  Additional District Judge  was that  he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing. The question about the suo moto proceedings under s. 44(2a) and the validity of the Amendment  Act, 1969  and its effect were not considered by the  appellate authority and in fact the appeal was still pending before  the 9th  Additional District Judge which was yet to be heard and disposed of. [823G-H]      2. The  High Court  after examining  the  legal  aspect without having  been raised  before it decided the matter so that neither  appeal remains  nor any proceedings remain and in doing  so the  High Court  went on  without  there  being proper grounds  before it  and without giving an opportunity to the  appellant-State of West Bengal, to have their say in this matter. [824A-B]      3. The order passed by the High Court dated 20.5.87 is, therefore, completely  without jurisdiction  and on  matters which were  not before  it and  also without giving adequate opportunity  of  hearing  and,  therefore,  deserves  to  be quashed, and is quashed. [824B-c]      4. The  appeal that  was filed  by the  Ist  respondent before the  9th Additional  District Judge  was pending when the High  Court passed the impugned order, revives. It could not be  said that  the appeal  is disposed of as observed by the High  Court. It  is directed  that the  appeal which was pending before  the 9th  Additional District  Judge shall be heard by  the Additional  District Judge  in accordance with law. [824C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 280 of 1988.      From the  Judgment and  order dated  20.5.1987  of  the Calcutta 820 High Court in Civil order No. 1344 of 1987.      Somnath Chatterjee and Rathin Dass for the Appellants.      S.N. Kacker,  Badar Durrez  Ahmed and Parijat Sinha for the Respondents.      The Judgment of the Court was delivered by      OZA, J. Leave granted.      This appeal has been filed aggrieved by the judgment of the High  Court of  Calcutta dated 20th May 1987 wherein the learned Judge  allowed a  petition  under  Article  227  and quashed suo  moto proceedings  under Sec. 44(2a) of the West Bengal Estates  Acquisition Act,  1953 (’Act’ for short) and also the appeal which was pending before the lower appellate court under  the Act.  The  proceedings  under  Article  227 reached the  High Court  rather in an interesting situation. Suo moto  proceedings in  1968 were  started by  the Revenue officer Tollygunj  under Sec.  44(2a) of the Act. There were also proceedings  under Sec. 6 clause 5 read with Sec. 47 of the same  Act started  by Revenue  officer and  the case was

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registered as Case No. 22 of 1968.      A suit filed in 1969 between parties to which the State of West  Bengal was not a party ended in a compromise decree on 6.8.70  and a decree in terms of compromise was drawn up. It was  title suit  No. 67  of 1969.  After the final orders were passed  by the  Revenue officer  in Case No. 22 of 1968 wherein the  respondent Ashit  Nath Das  did not participate and against  these final  orders a petition was filed in the High Court  of Calcutta  where rule was issued and by orders of the  High Court  dated 1.4.81  the rule was made absolute quashing the  orders in  the said revenue case directing the settlement officer  to issue proper notice to Ashit Nath Das as he  claimed to  be an interested party and dispose of the matter after  giving him opportunity of hearing. As a result of this  order passed  by the  High  Court  on  22.1.82  the proceedings under  Sec. 44(2a)  of  the  Act  was  re-opened according to  the orders  passed by  the High  Court and  on 9.2.82 final  orders were passed in these proceedings by the special revenue  officer. Against  this order Ashit Nath Das preferred an  appeal  before  the  9th  Additional  District Judge, Alipore  who is  the competent  authority to  hear an appeal under  this Act which was registered as EA Appeal No. 2 of  1982. On  1.12.83  it  appears  that  Ashit  Nath  Das obtained an opinion 821 Of  the  Advocate  General  of  West  Bengal  regarding  the aforesaid proceedings pending in Appeal No. 2 of 1982 before the 9th  Additional District  Judge, Alipore  and filed that opinion with  an application  in  the  Court  of  Additional District Judge.  The Additional  District  Judge  passed  an order on  25.2.86 rejecting  the prayer of the respondent by saying that  the opinion  of the Advocate General could only be looked  into as  the ground  of appeal  on behalf  of the appellant  and  the  prayer  of  the  appellant  before  the Additional District  Judge the  present respondent  that the appeal be  disposed of in accordance with the opinion of the Advocate General  was rejected.  It is  interesting to  note that  such  a  strange  prayer  was  made  and  the  learned Additional District Judge by his order rejected that prayer. The relevant part of the order reads as under:           "It is  his case  that after the order of the R.O.           now impugned in this appeal, his client had made a           reference of the matter to the Adv. General, Govt.           Of West  Bengal and  sought for his opinion. It is           alleged  that  the  Adv.  General  had  given  his           opinion that  the order  of the  R.o. was wrong on           the basis of this the appellants now want that the           appeal should be disposed of as per opinion of the           Adv. General  because  all  relevant  papers  were           submitted to  him and  copy of his opinion and the           copy of the petition and copies of the papers were           handed over to the State lawyer." As  the  learned  Judge  observed  that  it  could  only  be considered as  a ground.  The date  of hearing of the appeal was  fixed  on  19.4.86  to  suit  the  convenience  of  the advocates of parties.      It is against this order that a petition under Art. 227 was filed  before the  High Court. Learned counsel appearing for the appellants read through the petition which was filed before the  High Court  to contend  that in  fact there  was nothing in  the order of the Additional District Judge which could be said to be an order against the respondent of which a grievance  could be  made in a petition under Art. 227. As regards the  date of hearing the learned Additional District Judge had observed in his order that to suit the convenience

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of advocates  appearing in  the case 19.4.86 is fixed as the date of  hearing Learned counsel for the appellants referred to us  paragraph No.  14 of  the petition  under Art. 227 in which a ground was specifically raised saying.           "It  was   further  contended  that  the  Advocate           General had 822           given his  opinion that  the order  of the Revenue           officer was  wrong and as such on the basis of the           said opinion the petitioner wanted that the appeal           should be  disposed  of  as  per  opinion  of  the           Advocate General. " A grievance  also was made in this petition that the learned Additional District  Judge refused  to look into the opinion of the  Advocate General  except as  a ground  of appeal  on behalf of  the appellants.  In the  grounds in this petition under Art.  227  one  ground  urged  was  that  the  learned Additional District Judge should have disposed of the appeal in accordance  with the  opinion of the Advocate General and that should  have fixed an early date for the hearing of the appeal and  it is  significant that nothing on the merits or the validity of the proceedings under Sec. 44(2a) of the Act were challenged in this petition under Art. 227.      The manner in which the petition was entertained in the High Court  and the impugned order was passed also is rather interesting. on  18.4.86 it  appears that  this petition was presented and  orders  were  passed.  The  presence  of  the counsel of  both the  parties is mentioned, thereafter it is stated  that   further  proceedings   before  the  appellate tribunal be  stayed and  it is  further stated that Advocate General is  also directed to appear on Friday next (25.4.86) at the first sitting of the Court. Apparently from this what appears is  that after asking the Advocate General to remain present the  learned Judge kept the matter to be taken up on 25.4.86. It  appears that thereafter the case did not appear in the  list for hearing as is apparent from the order dated 18.4.86 when  rule was not issued and the matter was kept on 25.4.86. It  is alleged that this was contested by the State Govt. but  neither the  parties were  called  upon  to  file affidavits nor  any rule  was  issued  and  subsequently  on 13.6.86 this case was shown in the list of the Hon’ble Judge for judgment  but on  13.6.86 the judgment was not delivered and thereafter  the case appeared in the list on 20.5.87 for judgment  and  on  this  date  the  judgment  was  delivered although the  file had no number as it appears that rule was not issued  and the petition was not even numbered and it is this impugned  judgment which  is challenged by the State of West Bengal in this appeal in special leave.      In this  order  the  learned  Judge  has  treated  this petition under  Art. 227  as a revisional application of the petitioner  challenging   the  order  passed  by  Additional District Judge on 25.2.86 which has been referred to above. 823      The  learned   Judge  has   reproduced  the  contention advanced  by  the  counsel  for  the  respondents  that  the appellate court  i.e. 9th  Additional District  Judge should have disposed  of the  appeal in accordance with the opinion of the  Advocate  General  and  about  this  contention  the learned Judge  of the  High Court  has  made  the  following observation in his impugned judgment:           "It is  most regretable to note the stand taken by           the  State  in  the  matter  in  disregarding  the           written opinion  given by  no loss person that the           Advocate General of West Bengal showing such scant           respect or no respect at all to such opinion and I

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         hudder to  think that  if such disrespect is shown           to the  opinion of  the Advocate  General of  West           Bengal what should be the position of the Advocate           General before  the court  and also  to the  State           Government".      However the  learned  Judge  did  not  agree  that  the Additional District  Judge should have decided in accordance with the  opinion of  the Advocate  General and we are happy that the  9th Additional  District Judge,  Alipore  did  not accede  to   such  a  prayer  but  after  the  above  quoted observation the learned Judge has decided matters which were not raised  before the High Court in the petition under Art. 227. No  ground about  the validity of 44(2a) proceedings on the  basis  of  Amending  Act  not  getting  the  assent  of President was raised. When the case was fixed for 25th April Friday  next   directing  the  Advocate  General  to  remain present,  there-after   it  was  never  heard  and  it  only ultimately resulted in the impugned order.      It is not contended even by the learned counsel for the respondents that  any additional  grounds were  urged in the petition under  Art. 227  inviting the Court to consider the matter as  to the  effect of  the Amendment  Act,  1969  not receiving the  assent of  the President  and the  subsequent Amendment Act  receiving the assent of the President and the effect thereto.  Unfortunately the learned Judge of the High Court lost sight of the fact that the only grievance against the order  of the  Additional District  Judge  was  that  he refused to  decide the appeal in accordance with the opinion of the  Advocate General  and that  he did not give an early date  of   hearing.  This   question  about   the  suo  moto proceedings under  Sec.  44(2a)  and  the  validity  of  the Amendment Act  and its effect were neither considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of but it appears that the 824 learned Judge  of the High Court after examining these legal aspects without  having been  raised before  it decided  the matter so  that neither  appeal remains  nor any proceedings remain and  in doing  so the  learned Judge  went on without their being  proper grounds  before it and without giving an opportunity to the present appellant State of West Bengal to have their  say in  the matter. Under these circumstances it is apparent  that the  order passed  by the learned Judge of the  High   Court  dated   20.5.87  is   completely  without jurisdiction and  on matters  which were  not before  it and also without  giving adequate  opportunity  of  hearing  and therefore the  order deserves  to be quashed and is quashed. Apparently therefore  the appeal  filed  by  the  respondent before the  9th Additional  District Judge which was pending when the learned Judge of the High Court passed the impugned order revives  and it  could not  be said that the appeal is disposed of  as observed  by the  learned Judge  of the High Court. Consequently it is directed that the appeal which was pending before  the 9th  Additional District  Judge  Alipore shall be  heard by  the learned Additional District Judge in accordance with  law. The  learned Additional District Judge while hearing and disposing of the appeal shall not be bound or obsessed  by any observation made by the learned Judge in the impugned order. In the circumstances of the case parties are directed to bear their own costs. N. V. K.                                     Appeal allowed. 825

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