Narayan Chandra Kundu vs State of Westbengal and Others

M.N. Roy, J.—Even though., this Rule, which was obtained on 23rd Dec ember 1977. with the corresponding interim order for maintaining of status quo, initially for a limited period and thereafter, the same was extended, was made ready as regards service, none excepting Respondent Nos. 4 and 5 have appeared. In fact, there has been no affidavit-in-opposition, filed in the instant Rule. The Rule as mentioned above, was obtained against an order made on 27th September 1977, by the Revenue Officer. Respondent No. 2, in a proceeding being Case No. 93|77, under the provisions of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) and more particularly u/s 14T of the same. The petitioner has claimed to be the owner of 6.16 acres of lands and. he has also stated to have a family consisting of 6 members at the relevant time. He has stated that on or about 25th August 1977. a notice was issued by the Revenue Officer concerned and served on him, whereby he was informed that the said Revenue Officer would start a proceeding for determination of the ceiling limit of his holdings. The petitioner has further claimed that in pursuance of the said notice, he duly entered into the proceedings and attended the same and contended inter alia amongst others, that the proceedings as initiated, was without jurisdiction, inappropriate, void, arbitrary and illegal.

The determinations as mentioned above, were made by the impugned order on 27th September 1979 and in this proceedings, the petitioner has claimed such determinations to have been made without considering his submissions and more particularly to the effect that lands belonging to strangers have been added to the land ceilings or holdings of the petitioner. He has specifically stated that the lands of Gobinda Chandra Kundu, Respondent No. 4, and those of Smt. Tulshi Bala. Das, Respondent No. 5 were added, in the manner as mentioned hereinbefore and the determinations as impeached, were made by the authority concerned, without considering the provisions of the said Act. As such, the petitioner has claimed that he was not given duly, the benefits of section 14M (2), which deals with ceiling areas and particularly lays down that notwithstanding anything contained in subsection (1), where, in the family of a Raiyat, there are more Raiyats than one, the ceiling area for the Raiyat together with the ceiling area of all other Raiyats in the family shall not in any case, exceed, (a) where the number of members of such family does exceed 5, 5.00 standard hectors; and (b) where such number exceed 5,5 00 standard hectors, plus 0.05 standard hectors for each members in excess of 5, so, however, that the aggregate of the ceiling area shall not, in any case, exceed 7.00 standard hectors. These apart, the petitioner, has also claimed that lands belonging to one Rabindra Nath Chatterjee, have also been included with those of his lands by the Revenue officer concerned, apart from the fact, that ands belonging to one Kartick Chandra Roy, in the same and similar manner, have been included and tacked with his lands. The particulars of the lands of all the persons as mentioned above, including Respondent Nos. 4 and 5, have been mentioned in the petition.

As mentioned above, it was the categorical case of the petitioner that the Revenue Officer concerned, had decided the case without duly considering the provisions of the said Act and without duly considering the fact that on 15th February 1971, when Chapter II B, consisting of section 14J to 14Y was inserted by the West Bengal Land Reforms (Amendment) Act, 1971 (President''s Act III of 1971) and then by the West Bengal Land Reforms (Amendment) Act, 1972 (West Bengal Act XII of 1972) with retrospective effect, the number of the members of the petitioner''s family was six and as such, under the law, the said officer had no jurisdiction, competence or authority to pass an order of vesting of the lands belonging to the petitioner. Such being the postition, the petitioner claimed the order of vesting as made, to be wholly illegal, without jurisdiction and void also. It was claimed by him that by tacking the lands belonging to others and thereby increasing the quantity of the lands herd by him, the Revenue Officer concerned had also acted inappropriately and such action on his part, was not bonafide. It was the specific allegations of the petitioner that the officer concerned had failed to appreciate that under the laws of the land, he was entitled to retain lands measuring about 5.50 standard hectors, which would be equivalent to 13 60 acres and in not doing so or allowing such retention, the officer concerned had further acted illegally.

4 From a reference t0 the order in question, it would appear that the same was made on the basis of a reference to a notification about the nature and character of the lands and more particularly, whether they were in irrigated or non irrigated area, apart from the fact, that a report obtained on enquiry, was also relied upon. The petitioner has claimed that reliance to the said report, was also improper and not bonafide, apart from being against the principles of natural justice as he was not given any opportunities or notice of such report or to participate in the proceedings, in which such report was obtained It is also claimed by the petitioner that the officer concerned, act illegally and wrongly in placing reliance on the Government notification regarding the nature and character of the lands in question, in the matter of coming to the conclusion, whether they were in irrigated or non irrigated area.

5 In fact, Mr. Banerjee, appearing in support of the Rule, made his submissions in the manner as indicated, on the merits of the case. It has been observed in the case of Bidya Bhusan Mahapatra vs. State of West Bengal 82 CWN 118 that orders made u/s 14T would be appealable u/s 54 and in fact, it has been categorically observed in that case that section 54 of the said Act does not deal with the forum of appeals, yet it creates substantive right of appeal and consequently an appeal (one only), lies against an order made u/s 14T(3) of the said Act. In that case, since no appeal against the determinations u/s 14T(3) was filed, it was held that the application under Article 226, against such order, was premature and not maintainable. Such was the determination by a learned Single Judge and unless there are specific and definite grounds of disagreement with such determinations, I feel that being u Judge of the coordinate jurisdiction, the said determinations would be binding on me. As such, and on the said fact being pointed out to Mr. Banerjee he intended to argue that the determinations as made in the case as reported in 82 CWN 118, would be distinguishable on the facts of this case, apart from the fact that such determinations in law would not also bind this Court.

Mr. Banerjee claimed that section 54 of is the said Act only lays down the forum and not the manner, in which the intended appeal required to be filed, which manner, in respect of appeals in connection with other sections, the particulars whereof would be mentioned hereinafter, have been mentioned. He claimed that such argument viz section 54 fays down the forum only and not the manner and as such, would not operate as an absolute bar or act as a bar at all, for not preferring an appeal, was not in issue, in the case reported in 82 C.W.N, 118 as mentioned above. So the determinations as made therein, would be no bar in maintaining the present application.

It was specifically claimed by Mr. Banerjee that section 54 as mentioned above or the terms thereof, only prescribes the forum and a procedure to prefer an appeal to the authority as prescribed. He claimed that the right of a Raiyat. to prefer an Appeal is recognised firstly u/s 4(2C) of the said Act, which postulates that on appeal shall lie from any order made u/s 4(2A) in accordance: with the provisions of sections 54 and 55, Such right of appeal has been given from "any order" Similarly in section 4A(3), such right of appeal from any order and within the time as specified therein, has been given such is also the case u/s 4B(3) Mr. Banerjee claimed that the provisions of the sections as mentioned above, have not only prescribed the limitation in preferring the appeal, but have also laid down the manner and the forum as to how and where such appeals will have to be filed. He claimed that such would also be the position of an appeal u/s 9(6), which gives right to any person aggrieved by an order of the Munsif to refer an appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The section further postulates the fees to be paid by the parties and prescription for the procedure to be followed by the District Judge. Mr. Banerjee also wanted to supplement his arguments as mentioned above, on a reference to the terms and language of sections 14H dealing with Appeal and Revision from orders made under sections 14C(4) or 14E or 14G, (hose in section 14-0, dealing with appeals in connection with the determinations u/s 14N end section 19(1), prescribing the manner and forum of appeal from determinations u/s 17 and 18 with the exceptions as mentioned therein, apart from relying on section 198(2), which lays down that an appeal shall lie to the Collector against any order nude in respect of restoration of land to Bergader u/s 19(1). Section 23B(2) leys down that any person aggrieved by an order made by the Revenue Officer u/s 23B(a) (1), may prefer an appeal to such authority as the State Government may, by notification in the official Gazette, specify, within thirty days from the date of such order or within such further time as such authority may, on sufficient cause being shown, allow and Mr. Banerjee referred to those provisions also in support of his submissions as recorded herein before, apart from relying on the provisions of or the terms in sections 49(4) and 51A(4) of the said Act. Mr. Banerjee further claimed that the provisions of section 54(2) is only procedural.

Mr. Banerjee further claimed that appeal being a substantive right. Court cannot give such right by implication, which he claimed was incidentally the case in the one reported in 82 CWN 118. To establish that there are cases is other statutes, where such right of appeal is a substantive one and is directed against specific and specified orders, Mr. Banerjee referred, firstly to section 96 of the Code of Civil Procedure, 1908, dealing with appeals from Original Decrees and then to section 104, which specifies several orders which are appealable. Section 372 of the Code of Criminal Procedure, 1973 postulates that no appeal shall lie from any judgement or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. In support of his submissions as above mentioned Mr. Banerjee on a specific reference to that section also referred to sections 374, 375 and 376 of that Code, which provide for appeals from different types of convictions, apart from relying on section 378 which make provisions for appeals in case of acquittals. He then referred to section 246 of the Income Tax Act, 1961, which specifies the orders from which appeal can be preferred to the Appellite Assistant Commissioner, apart from relying'' on the provisions of section (sic) of the Companies Act. 1956, which corresponds to section 202 of the previous Companies Act and lays down that appeals from any order made, or decision given, in the matter of the winding up of a Company by the Court shall lie to the same Court to which in the same manner in which, and subject to the same condition under which, appeals lie from any order or decision of a Court in cases within its ordinary jurisdiction. It was the definite contentions of Mr. Banerjee that the said Act and more particularly by section 54, has merely laid down the manner how the appeals are to be preferred and the forum where such appeals are to be filed but the said section has not created a substantive provision of appeal like the statutes as mentioned hereinbefore and as such, the provisions of section 54 of the said Act cannot operate as a bar in maintaining a proceedings like the present one, under Article 226 of the constitution of India. He also contended that the provisions of section 54(2), which incorporate that where at the commencement of section 22 of West Bengal Land Reforms, (Amendment) Act. 1971, any appeal is pending before the member, Board of Revenue, such appeal shall not withstanding anything contained in sub-section (1), be disposed of by such member or those in sub-section (3) of section" 54, which is to the effect that where any appeal in preferred to a collector of the district, he may transfer the appeal to any officer subordinate to him. not being below the rank of a Sub-Deputy Collector :

Provided that the officer to whom the appeal is transferred is superior in rank or position to the officer or authority making the order appealed from are only procedural aspects, which again supplement the provisions in section 54(1) of the said Act and that would not also or even satisfy and establish the tests of substantive character of the appeals.

While on his submissions on. substantive right of appeal as mentioned above and more particularly in support of such submissions in respect of; proceedings under the Code of Civil Procedure, Mr. Banerjee referred to the determinations in the case of Smt. Ganga Bai Vs. Vijay Kumar and Others, , wherein it has been observed that the provision of sections 96,100,104 (1). 105 read with order 43 Rule 1 show that an appeal lie only as against a decree or an order passed under rules from which an appeal is expressly allowed by order 43 Rule 1, No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. On the interpretation and meaning of the manner as required u/s 202 of the old companies Act. Mr. Banerjee relied on the Bench determinations of the Allahabad High Court in the case of Rama Shankar Vs. Official Liquidator, Jwala Bank Ltd., . In that case, it has been observed that the word ''manner'' in section 202 refers to the procedure to be followed in the matter of institution and hearing of the appeal and the word "condition" has reference to the nature, quality, qualifications of the order or decision itself against, which an appeal is proposed to be filed and the other circumstances touching the right of appeal. The requirement that in order that an appeal should lie. the order or decision must be a final order, or a judgement or a decree or an order of a particular nature is certainly, a "condition" of the right. of appeal. Mr. Banerjee argued that since the provisions of section 483 of the Companies Act, 1956 are in the same line as those of section 202 of the old Act, so the determinations as mentioned above would also apply under the provisions of the present Companies Act and it was also argued by him that the determinations as mentioned or cited above, would abundatly support his contentions as referred to hereinbefore and for establishing the proposition that the provisions of section 54 as a bar for maintaining an application under Article 223 of the Constitution of India, were not considered in the proper perspective in the case of Bidya Bhusan Mahapatra v. State of West Bengal (Supra) and as such, the said determination, as contended by him would not be an absolute bar in maintaining this application.

Apart from the above, Mr Banerjee referred to Craies on Statute Law (7th Edition) dealing with the Rule of Constitution where the meaning is plain and claimed that following the rule Casus Omissus not to be created or supplied, a statute may not be extended to meet, as observed in the celebrated decisions. to meet a case for which provision has clearly and undoubtedly not been made.

On merits, Mr. Banerjee claimed and contended that the Rule should succeed as firstly, the enquiry as involved and referred to hereinbefore, was. held behind the. back of the petitioner or without any opportunities to him, secondly, the report in question was also obtained and procured without any inumation to the petitioner or opportunities to him and thirdly there has not been any appropriate determination of the irrigated or non irrigated character of the lands.

If the petitioner can get round the preliminary hurdle as indicated above, then of course, it cannot be denied that on the facts of this case, he has a strong prima facie case and on merits. Let us now see, it and how far of it at all, the petitioner has succeeded or could succeed, in assailing the preliminary point regarding the maintainability of the application, the relevant particulars whereof have been indicated hereinbefore Section 54 of the said Act, on a plain reading and construction would establish that the same not only lays down. the manner but also indicate the forum of appeal and in that respect, I respectfully agree with the determinations in the case of Bidya Bhusan Mahapatra v. State of West Bengal (Supra). The time limits within which the concerned appeals are to be filed have also been referred to and contained in section 55. The right of an appeal is no doubt is not an inherent right. The same is also not a natural right. Such right would essentially be a creature of statute or a statutory right. In fact in the case of Ganga Bai v. Vijay Kumar (Supra), as cited by Mr. Banerjee such statutory character of the right of appeal is amply established. There is no doubt that unless a right of appeal is specifically conferred by or in statute such right ''never exists. It is also true and as observed in the case of Rangoon Botatung Co. Ltd v. Commissioner of Rangoon. 40 Cal 21 that right Of appeal being a creature or statute or a right conferred by me statute, cannot be inferred by, implication. So it such right is conferred by a statute, the High Court, should not ordinarily or except in exceptional circumstances, interfere. The opening words of section 54 also make it amply, clear that except in the special class of cases or circumstances as mentioned above or in the statute or for which special provisions have been made or indicated, appeals shall lie in the manner or in the forum as indicated in the section. Such appeals would of course be subject to the limitations as in section 55. The words as used in section 54 thus in my view are clear in establishing that all orders including the exceptional or special cases as mentioned in the statute, would be appealable and as such the determinations as made in the case of Bidya Bhusan Mahapatra v. State of West Bengal (Supra), cannot be assailed on the grounds as sought to be argued by Mr. Banerjee.

In view of the above this rule should fail on the ground that the same would not be maintainable at this stage for not exhausting the other remedies in the statute. In that view of the matter and findings, I feel that the case on merit need not be gone into at this stage.

The Rule is thus discharged. There will be no order as to costs. Civil Rule Nos. 6877-78 (W) of 1977. Since the points involved in these cases are the same as in Civil Rule No. 6876 (W) of 1977,. the order which I have proposed there, would also given these Rules.,