Suniti Kr. Pratihar vs Sarbani Sen and Another

P.K. Sen. J.

This application under Article 227 of the Constitution of india is at the instance of a respondent in a proceedings u/s 8 of the West Bengal Land Reforms Act and is directed against an order passed by Sri S. Raha, Judge, Special Court (B.C. Act) cum Additional District Judge, Mldnapore reversing the order passed by Sri A. Chakraborly, Munslf, Mldnapore.

Smt. Sarbanl Sen, who is the respondent before this court, made a prayer for pre-emption u/s 8 of the West Bengal Land Reforms Act coupled with a prayer u/s 5 of the Limitation Act for pre-emptlon of the disputed plot. The learned Munslf upon consideration of the facts and circumstances and the evidence disallowed the prayer for preemption on merits and also on the ground that it is barred by limitation. On being aggrieved by such order, the said petitioner Smt. S. Sen approached the learned District Judge, Mldnapore with a prayer made u/s 115(a) of the CPC for relief. It is subsequently heard by Additional District Judge cum Judge, Special Court, who condoned the delay and directed the learned Munslf to decide the petition u/s 8 of the West Bengal Land Reforms Act afresh and on merits. On being aggrieved by that order, the instant revlslonal application has been preferred by this court by Sumiti Kr. Pratlhar, who happens to be the respondent in the proceedings u/s 8 of the West Bengal Land Reforms Act.

Mr. Pijush Kantl Dutta, the learned advocate appearing for the opposite party (that is the original petitioner) has contended, that with the introduction of section 115(a) in the Code of Civil Procedure, this court sitting in revision cannot quash the order of the lower court. The provision containing in secllon 115(a) was introduction by local amendment and the power of revision was conferred on the District Courts to entertain revlslonal application which so long was being exercised by the High Court alone. Thus, by the introduction of section 115(a), co-ordinate Jurisdiction has been created by the State amendment clothing the district courts to exercise the identical power in revision which can be exercised by the High Court within the meaning of section. 115 It is not disputed that in the instant case, the present respondent preferred a revision before the District Judge, Midnapore where the District Court passed an order and so according to Mr. Dutta after such order was passed this court cannot exercise its jurisdiction u/s 15 of the Code of Civil Procedure. In support of such contention, Sri Dutta has referred to the decision of this court reported in Paltu Dutta Vs. S.M. Nibedita Roy, , but in that case it was held that a party seeking relief under the revlslonal Jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. But, in section 115 sub section 4 emphasis has been given upon the words ''same party''. Here the parties are different in as much as the present petitioner was the opposite party-respondent before the District Court Had it been a case that ''same party'' has approached this court in revision, the position would have been different and provision of section 115 will operate as a bar.

In the decision reported in Paltu Dutta Vs. S.M. Nibedita Roy, this court observed that ''same parly'' cannot seek relief u/s 227 of the Code of Civil Procedure, if he had availed of the opportunity of section 115(a) of the Code of Civil Procedure, but even then this court observed that if manifest injustice was caused, this court can interfere under Article 227. In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, the position was different because in that case ''same party'' applied for relief twice on the same ground. Similar is the case which was reported in 99 CWN page 1006.

Regarding the scope of Article 227 of the Constitution of india it was held by the apex court in the case reported in Achutananda Baidya Vs. Prafullya Kumar Gayen and others, that High Court''s power of superintendence under Article 227 includes within its sweep the power of judicial review and in cases of erroneous assumption of Jurisdiction of the inferior court or tribunal rendering perverse decision the High Court has every authority to interfere and strike down the decision. In 1995 (2) CHN 103 it was held by this court that District Court exercising power of revision u/s 115(a) of the Code ofCivil Procedure cannot be treated as equal to the High Court, It still remains a court subordinate to the High Court in view of the provisions of section 3 of the Code and so, the High Court in exercise of its constitutional Jurisdiction under Article 227 of the Constitution of india can interfere with an order passed by the District Court u/s 115(a) of the Code and no amendment of statute, short or amendment of Constitution can take away the power of superintendence of the High Court conferred upon it under Article 227 of the Constitution.

In a single Bench decision reported in 99 CWN, this court observed that an application u/s 115 CPC is distinct as an application under Article 227 of the Constitution and one cannot be identified with the other. The scope of Article 227 is radically different and distinct from that of section 115 of the CPC and that cannot be contemplated as alternatives to each other. The provision of Article 227 of the Constitution is required to be exercised in exceptional cases with a view to keep subordinate courts within the limitation of its jurisdiction. High Court has the power of superintendence over the subordinate courts functioning in the Stale. The arguments advanced by Sri Dutta that with the introduction of section 115(a) of the Code of the Civil Procedure, the office of the District Judge has been made equal with that of the High Court and therefore, the instant petition in revision is not tenable in law in view of the provision of section 3 of the Code of Civil Procedure.

Normally, this court would not have exercised its Jurisdiction in view of the same Jurisdiction having been exercised by the District Court, but if there is any gross illegality or any order having been passed without jurisdiction, this court can still exercise its superintending power under Article 227 of the Constitution of india.

Admittedly, there was a sale deed dated 27.5.83 by which the present petitioner Sri S.K. Pratihar claimed to have purchased the disputed properly. The present respondent made a prayer under seclion 8 of the Land Reforms Act for pre-emption of the disputed properly. The Impugned sale deed was executed on 27.5.83 but the prayer u/s 8 was presented on 17.5.99. The case of the party who seeks for pre-emption, is that he came to know of the fact of transfer only on 18.2.99 and he applied for preemption on 17.5.99 as there was an apprehension that the relief might be barred by limitation so she made a prayer for condonation of delay under seclion 5 of the Limitation Act.

The court of the first instance that is the learned Munsif found that she Tailed to make out any case of pre-emption and also her relief was barred by limitation. Accordingly, the learned Munslf rejected the prayer for preemption as barred by llmllalion but the learned Additional District Judge, who heard the revision allowed the prayer made u/s 5 of the Limitation Act. But the learned District Judge did not set aside the findings of the Munslf on the petition under seclion 8 of the West Bengal Land Reforms Act by which the learned Munslf disbelieved the case of the pelilloner applying for pre-emption. It appears lhat learned Munsifgave a definite finding lhat the petitioner could not prove thai she acquired her knowledge only on 18.2.99. Therefore, when the learned Additional District Judge did not sel aside such findings. It remains. It only shows lhat the learned Additional Distrlcl Judge did not apply his mind while disposing of the petition,

Thus, from the findings of the learned Munsif, it is clear that the learned Munsif disbelieved the case of the pelilloner that she acquired her knowledge only on 18.2.99 which means that she was aware of such transfer prior to lhat dale. So, the question of limitation comes in. In the most recenl decision of a Division Bench of Ihis courl reported in (1) CWN 365 II was held lhal Limitation Act is not applicable to a proceedings u/s 8 of the West Bengal Land Reforms Act. To counter-act such decision, Sri P.K. Dutta has referred to Iwo decisions of Ihls court given by two differenl single Judge. In one decision reported in 1994 (1) CLJ 106. It was held that section 5 of the Limitation Act cannot be applied in proceedings or to an application u/s 8 of the Land Reforms Act. Another decision reported in 1997 (1) CLJ 289 it has been contended by the learned advocate appearing for the Opposite Party that the Limitation Act will apply to a proceeding u/s 8 of the West Bengal Land Reforms Act. But this decision was not referred before the Division Bench which decides the case as reported in 1999 (1) CHN 365. In the Division Bench, the court found that Limitation Act is not applicable to a proceedings u/s 8 of the West Bengal Land Reforms Act and therefore the question of condonation of delay u/s 5 of the Limitation Act cannot arise.

11, Thus, in view of the definite findings of the learned Munsif with regard to same facts and circumstances as referred to above, 1 find that the relief as applied for by Smt. Sarbanl Sen was barred by limitation and the impugned order of learned Additional District Judge suffers from inherent lack of Jurisdiction and It is patently illegal and, therefore. In exercise of the powers of the superintendence as conferred under Article 227 of the Constitution of india, I allow this revision and set aside the Impugned the order dated 16.11.91 passed by the Additional District Judge, Mldnapore. Thus, the relief as claimed by the original petitioner Smt. Sarbanl Sen is barred by limitation and accordingly the petition u/s 8 of the West Bengal Land Reforms Act stands rejected. All interim orders, if there be any, are vacated.

Petition allowed