Holding

The High Court’s order was without jurisdiction and is set aside; the pending appeal must be heard by the Additional District Judge in accordance with law, without being bound by the High Court’s observations.

Summary

The case arose from suo moto proceedings initiated by a revenue officer under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953, which were reopened after a High Court order in 1982. Ashit Nath Das appealed the final order before the 9th Additional District Judge and, after obtaining the opinion of the Advocate General, applied that the appeal be disposed in accordance with that opinion. The Additional District Judge rejected the application, fixing a hearing date, and the State of West Bengal filed a petition under Article 227 of the Constitution in the Calcutta High Court. The High Court treated the petition as a revision, held that the appeal should have been decided per the Advocate General’s opinion, and quashed both the suo moto proceedings and the pending appeal. On special leave, this Court held that the High Court had no jurisdiction to entertain the petition, that it decided matters not raised before it and denied a hearing to the State, and therefore set aside its order, directing the appeal to be heard by the Additional District Judge in accordance with law.

Issues considered

Whether a petition under Article 227 of the Constitution is maintainable as a revision of the Additional District Judge’s order.
Whether the High Court can direct that an appeal be disposed in accordance with the Advocate General’s opinion.
Whether the High Court had jurisdiction to quash the suo moto proceedings under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953.
Whether the pending appeal was deemed disposed by the High Court’s order.

Legislation cited

Constitution of Indias. Article 136, s. Article 227
West Bengal Estates Acquisition Act, 1953s. 44(2a), s. 47, s. 6(5)

Subjects

West Bengal Estates Acquisition Actsuo moto proceedingsAdvocate General opinionArticle 227 revisionjurisdictionappeal procedurespecial leave

Judgment

STATE OF WEST BENGAL AND OTHERS
A
V.
ASHIT NATH DAS AND OTHERS

JANUARY 27, 1988

B [G.L. OZA AND B.C. RAY, JJ.]

West Bengal Estates Acquisition Act, 1953: Sections 6(5), 44(2a)
and 47-Revenue Officers order questioned in appeal before the Add/.
District Judge/Competent Authority-Private party obtaining opinion
of Advocate General and moving application for decision in terms of
1
C such opinion-District Judge rejecting plea and fixing the appeal for
hearing-High Court unber 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.

D Practice and Procedure-Written opinion of Advocate Genera/-
Application to Court by private party that appeal be disposed of in
accordance with opinion-District Judge. Rejecting application-
Whether valid.

As a result of the order passed by the High Court, proceedings
E 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 y.
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
F appeal. Ou l. 12.83 the Ist respondent obtained an opinion of the Advo-
cate General regarding the aforesaid proceedings, and filed that opi
nion with an application. ·

The Additional District Judge passed an order on 25.2.86 reject-
ing the prayer of the Ist respondent that the appeal be disposed of in
G 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.

H A petition under Art. 227 was filed in the High Court against the
818
STATE OF WEST BENGAL v.A.N. DAS 819
-'i aforesaid order by the Ist respondent. The High Court treated this
A
petition as a revision application challenging the order passed by the
,Jo Additional District Judge on 25.2.86, and held that the Additional Dis-
trict 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. B

Allowing the Appeal by the State this Court,
\
HELD: I. 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
l
the Advocate General. and that he did not give an early date of hearing. c
I 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 dis-
',_, ..
,
posed of. [823G-H) D

2. The High Court after exammmg 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
.y went on without there being proper grounds before it and without
giving an opportunity to the appellant-State of West Bengal, to have E
their say in this matter. [824A-B)

3. The order passed by the High Court dated 20.5.87 is, there-
fore, completely without jurisdiction and on matters which were not
before it and also without giving adequate opportunity of hearing and,
herefore, deserves to be quashed, and is quashed. [824B-CI F

4. The appeal that w'ls 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 G
the Additional District Judge in accordance with law. [824C-D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 280
of 1988.

From the Judgment and Order dated 20.5.1987 of the Calcutta H
820 SUPREME COURT REPORTS I1988) 2 S.C.R.

A 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.
B

The J udgment of the Court was delivered by

OZA, J. Leave granted.

C 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 proceed-
ings 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 Arti-
D cle 227 reached the High Court rather in an interesting situation. Suo
moto proceedings in 1968 were started by the Revenue Officer Tolly-
gunj 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 registered as Case No. 22 of 1968.

E 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 n o r l
participate and against these final orders a petition was filed in th
F 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 hear-
ing. As a result of this order passed by the High Court on 22.1.82 the .._.
G 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
H 1982. On 1.12.83 it appears that Ashit Nath Das obtained an opinion
STAIB OF WEST BENGAL v.A.N. DAS [OZA, J.] 821
-"'(
of the Advocate General of West Bengal regarding the aforesaid pro- A
ceedings pending in Appeal No. 2 of 1982 before the 9th Additional
i' 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 B
;I of the appellant before the Additional District Judge the present res-
.\ pondent 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
l reads as under: c
"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 D
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."

-
.w•
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 .
E

( lt is against this order that a petition under Art. 227 was filed
before the High Court. Learned counsel appearing for the appellants F
( 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 respon-
dent 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 of advocates G
appearing in the case 19.4.86 is fixed as the date of hearin~ Learned
counsel for the appellants referred to us paragraph No. 14 of the
petition under Art. 227 in which a ground was specifically raised
saymg.

"It was further contended that the Advocate General had H
822 SUPREME COURT REPORTS [1988) 2 S.C.R.

given his opinion that the order of the Revenue officer was
A
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
B District Judge refused to look into the opinion of the Advocate
General except as a ground of appeal on behalf of the appellants. In Y·
the grounds in this petition under Art. 227 one ground urged was that
the learned Additional District Judge should have disposed of the f. 4I
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't
is significant that nothing on the merits or the validity of the proceed- ,
c ings 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.
D 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 ·'f
E 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 ~'
F issued and subsequently on 13.6.86 this case was shown in the list of '-v
the Hon'ble Judge for judgment but on 13.6.86 the judgment was not l
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 , _
G 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
H referred to above.
STATE OF WEST BENGAL v.A.N. DAS {OZA, J.l 823
-y The learned Judge has reproduced the contention advanced by A
the counsel for the respondents that the appellate court i.e. 9th Addi-
1 tional District Judge should h~ve 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 observa-
tion in his impugned judgment:
B
"It is most regret;\ble 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 hudder to think that if such disrespect is
shown to the opinion of the Advocate General of West C
Bengal what should be the position of the Advocate
General before the court and also to the State Govern-
ment''.

However the learned Jµdge did not agree that the Additional
-~ District Judge should have decided in accordance with the opinion of D
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.
i' 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 E
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 respon-
nts that any additional grounds were urged in the petition under f
rt. 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 G
. \. in accordance with the opinion of the Advocate General and that he
A 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 H
824 SUPREME COURT REPORTS [1988] 2 S.C.R.

A learned Judge of the High Court after examining these legal aspects ·y-
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 circum-
B stances 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 respon,
dent before the 9th Additional District Judge which was pending whe~
C the learned Judge of the High Court passed the impugned order re.1
vives 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
D 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. 'f