Back
High Court Of Calcutta
MAHITOSH MAJUMDAR
RATHINDRA NATH ADHIKARI - Appellant
Versus
STATE OF W.B - Respondent
C. R. 5625 (W) Of 1978
Decided On : 12/07/1990
WEST BENGAL LAND REFORMS ACT - SECTION 9 - RIGHT OF APPEAL - INTERPRETATION AND APPLICATION - JURISDICTION OF HIGH COURT UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA - SCOPE AND LIMITATIONS - DISTINCTION BETWEEN THE TWO ARTICLES - POWER OF SUPERINTENDENCE OF HIGH COURT OVER SUBORDINATE COURTS AND TRIBUNALS - EXTENT AND LIMITATIONS - JUDICIAL REVIEW OF ORDERS UNDER ARTICLE 227 - PRINCIPLES GOVERNING INTERFERENCE - APPLICABILITY OF THE PRINCIPLES OF CERTIORARI TO PROCEEDINGS UNDER ARTICLE 227.
Fact of the Case:
The petitioner, a pre-emptor, filed an application under Sections 8 and 9 of the West Bengal Land Reforms Act, seeking to pre-empt the sale of certain land by the owner to a third party. The Subordinate Judge allowed the application and ordered the transfer of the land to the petitioner. The third party, aggrieved by the order, filed an appeal to the District Judge, who reversed the order of the Subordinate Judge. The petitioner challenged the order of the District Judge by way of a writ petition under Article 226 of the Constitution of India.
Finding of the Court:
The High Court held that the writ petition was not maintainable under Article 226 of the Constitution of India, as the order of the District Judge was revisable under Article 227 of the Constitution. The Court observed that the District Judge, while disposing of the appeal, acted as a Court and not as a persona designata. The Court further held that the powers of the High Court under Articles 226 and 227 are distinct and different, and that the procedure prescribed for applications under Article 226 is not applicable to applications under Article 227.
Issues: 1. Whether the writ petition was maintainable under Article 226 of the Constitution of India. 2. Whether the District Judge acted as a persona designata in disposing of the appeal. 3. Whether the powers of the High Court under Articles 226 and 227 are distinct and different.
Ratio Decidendi: 1. The High Court held that the writ petition was not maintainable under Article 226 of the Constitution of India, as the order of the District Judge was revisable under Article 227 of the Constitution. The Court observed that the District Judge, while disposing of the appeal, acted as a Court and not as a persona designata. 2. The Court further held that the powers of the High Court under Articles 226 and 227 are distinct and different, and that the procedure prescribed for applications under Article 226 is not applicable to applications under Article 227.
Final Decision: The High Court dismissed the writ petition, holding that it was not maintainable under Article 226 of the Constitution of India. The Court also observed that the petitioner was not precluded from moving the Court under Article 227 of the Constitution.
( 1 ) THIS writ application is directed against the order dated 12/06/1978 passed by the Additional District Judge, 3rd Court, Burdwan in Misc. Appeal No. 126 /11 of 1977 reversing the order dated 21/08/1977 of Shri D. K. Chakraborty. Subordinate Judge, Burdwan in Misc. Case No. 56 of 1975.
( 2 ) THE facts, of the case are in brief as follows :
( 3 ) THE petitioner is owner and in khas possession of Plot Nos. 1263 and 1264, Mouza : Hargram, P. S. Bhatat, Dist. Burdwan, The petitioner is an occupancy tenant, Mouza : Hargram. One Kanaklata Ghosh, since deceased was the owner of 3,71/2 acres of land having a Jama of 13. 4/ 3 paise in Mouza : Hargram, P. S. Bhatar, Dist. Burdwan. The said Kanaklata Ghosh by a registered deed of sale sold the aforesaid land to one Kanai Chandra Samanta, Respondent No. 4 herein on 27/06/1975 for a consideration of Rs, 6,000/ -. Shri Kanai Chandra Samanta is a purchaser whereas the petitioner is owner and in khas possession of plots Nos. 1263 and 1264 contigious to plots Nos. 1265 and 1270 is also contigious to west plot No. 1265. The petitioner became owner of plots No. 1263, 1264 and 1270 on the basis of Nirupan Patra dated 15/03/1974 executed by one Uma Sundar Ghosh the paternal grand-father of the petitioner. The transfer of land by Kanaklata Ghosh in favour of respondent No. 4 was not within the knowledge of the petitioner. The petitioner came to know of the said transfer after obtaining the certified copy on 8th day of September, 1978. Immediately thereafter, the petitioner filed an application under Ss. 8 and 9 of the West Bengal Land Rules Act before the Subordinate Judge, Burdwan. The appropriate authority and the petitioner then deposited Rs. 6,000. 00 as consideration money and Rs. 600. 00 being the legal compensation thereon for pre-empting the interest transferred to the respondent No. 4. The Respondent No. 4 then filed written objection contending inter alia- (A) the petitioner is not the owner of any land contigious to any of the lands transferred to respondent No. 4, (b) On payment of Rs. 25,000. 00 the petitioner purchased the land from Kanaklata Ghosh but due to ill advice of the seller and also due to delay in purchasing the requisite stamp paper of Rs. 25,000. 00 mentioned in the deed only Rs. 7,000. 00 being the consideration money. Of course, on enquiry the Collector assessed the valuation of the land
property at Rs. 25,000. 00 and on 13/02/1976 realised the deficit stamp of Rs, 1,212/- (c) the deposit of consideration money and the compensation money were deficient; (d) after spending about Rs. 5,000. 00 the respondent No. 4 developed the said property; the Subordinate Judge, Burdwan allowed the said Misc. Case No. 56 of 1975 and passed the order to the effect that right, title and interest in 3. 471/2 acres of land as described in the Schedule of the petition purchased from Kanaklata Ghosh under Registered Sale Deed dated 26/06/1975 by the respondent No. 4 do vest in the petitioner with efect from 2/08/1977 and the Respondent No. 4 and the Respondent No. 4 was accorded liberty to withdraw the amount of Rs. 6,000. 00 deposited by the petitioner. Against the said order of the Subordinate Judge, Burdwan and Misc. Case No. 56 of 1977, the Respondent No. 4 preferred an appeal being No. 126 of 1977 before the District Judge, Burdwan in the said appeal was allowed by an order dated 13/06/1977 and the Additional District Judge of Burdwan reversed the order passed on 2/08/1977.
( 4 ) IN the background of the facts and circumstances in the instant case, Mr. Ashoke Kumar Banerjee appearing on behalf of the writ petitioner claimed and contended that the order impugned in the writ petition cannot be sustained inasmuch as the Appellate Court committed incurable infirmity by mis-directing himself to follow the judgment not relevant in the instant case and admittedly, prior to the pre-emption petition filed by the petitioner, the instrument was registered and subsequen
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
