Kulesh Ch. Mondal vs State of West Bengal

S.K. Mookherjee, J.—This appeal is directed against an order of a learned Single Judge dated September 23, 1986 whereby the writ application preferred on behalf of the present Appellant stood dismissed upon a finding that there was no perversity or illegality on the face of the judgment placed by the appellate authority.

It appears that there was an application made by the Respondent u/s 4 of the West Bengal Restoration of Alienated Land Act, 1973 for restoration of the land which had been purchased by the present Appellant on or about May 7, 1970.

The application for restoration of the said land was made in the year 1976 when restoration could be allowed if the sale was ''in distress'' in terms of the then language of the Statute as mentioned above, though, subsequently, the term ''in distress'' had been omitted by the Amending Act in the year 1980.

In the instant case, the Deed recites that the sale became necessary for purchase of a land and for repayment of loan to the Moneylender. No doubt, one of the purposes could apparently be said to have fallen within the purview of the term ''distress'' but the purposes disclosed and read as a whole are inconsistent with each other. It was the onus of the applicant to prove his entitlement to relief under the aforesaid Statute on fulfilment of criteria laid down therein. It is also not permissible to take into consideration the materials in contradiction or variation and contrary to the recitals of the Statute save and except in terms of Section 92 of the Evidence Act which do not appear to have been satisfied. The Statutory appellate authority therefore, fell into a substantial error in accepting the oral evidence contrary to the recital in the Deed and that too in the absence of fulfilment of the requirement of Section 92 of the Evidence Act. For existence of such a flaw in its order which pertakes the character of a jurisdictional error, the order must have to be said to be perverse and the learned trial Judge''s order being perverse, is not sustainable in law. We are accordingly contrained to set aside the order impugned in the appeal and direct dismissal of the application preferred on behalf of the Respondent u/s 4 of the aforesaid Statute. The appeal, therefore, stands allowed. The order impugned in the appeal is set aside. The order of the lower appellate authority is quashed and the conclusion of the trying authority is affirmed. There will be no order as to costs. Let a writ issue accordingly.

A prayer for stay of operation of our order is prayed for by Mr. Mitra, but in view of the reasons given in our order we decline to grant such prayer.

R. Bhattacharya, J.

I agree.