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Satyanarayan Banerjee and ors. Vs. Charge Officer and A.S.O. Birbhum and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2081 (W) of 1970
Judge
Reported inAIR1975Cal43
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantSatyanarayan Banerjee and ors.
RespondentCharge Officer and A.S.O. Birbhum and ors.
Appellant AdvocateNani Coomar Chakraborty and Paritosh Mukherjee, Advs.
Respondent AdvocateBirendra Nath Ghose, Adv.
Cases Referred and State of Madhya Fradesh v. Balkrishan Nathani
Excerpt:
- .....february 18, 1970, was issued. the notice however, does not indicate that it was a notice for the review proceeding. the notice as served reads as a notice for a new proceeding for adjudicating the true character of the endowment for the purpose of sections 6(1)(i) and 17 of the act. such an order reopening the proceeding and the consequent notice thereof are the subject-matter of challenge in this rule. mr. birendra nath ghose is appearing to contest this rule on behalf of the respondents though no affidavit has been filed on behalf of the respondents. as a matter of fact, the facts set out hereinbefore are all borne out by the records and are not in dispute. only question which has been raised by mr. chakraborty on behalf of the petitioners is a question of law as to whether the.....
Judgment:

Anil Kumar Sen, J.

1. An order dated February 13, 1970, passed by an Assistant Settlement Officer being also the Charge Officer. Birbhum at Suri in Debottar case No. 28 of 1965 and the consequent notice dated February 18, 1970. are the subject-matter of challenge in this Rule obtained on a writ petition.

2. It will be necessary to refer to certain facts leading to the aforesaid order and the notice in order to decide the dispute raised. Late Jadablal Banerjee made an endowment on 19th Pous 1312 B. S. corresponding to early 1900 on a registered Deed of endowment in favour of certain deities. On the endowment so made Jadablal Debottar Trust Estate was created of which the present petitioners are the trustees. Such endowment covered certain properties including certain agricultural and non-agricultural lands. On the enforcement of the West Bengal Estates Acquisition Act, 1953 it was found necessary that an adjudication should be held for finding out whether the endowment so made was absolute or not for the purpose of deciding the claim of benefit under Section 6(1)(i) and Section 17 of the said Act. Accordingly on June 8, 1965 a proceeding was started under Section 44(2a) read with Sections 6(1)(i), 6(2), 42 and 17 of the said Act. Such proceeding was initiated by the Assistant Settlement Officer for deciding the particular specific issue as to whether the endowment was exclusively for a purpose which is charitable or religious. Evidence was led on behalf of the trustees and on consideration of such evidence including the registered Deed of endowment the Assistant Settlement Officer came to the following conclusion, 'it appears that the landed properties have exclusively been divested (vested ?) to the trust for performing religious rites. Also seen balance sheets duly audited by Chartered Accountant. It appears that the income derived from landed properties is exclusively spent for religious rites. I am satisfied. I hold the character of the trust as absolute in nature and thus it is entitled to get the benefits of Section 6(1)(i) and proviso to Section 17(1) of the W. B. E. A. Act.' On the findings as above he directed appropriate entries to be made in the record-of-rights in exercise of his powers under Section 44(2a). The above order was passed as early as on March 25, 1970. It is not in dispute that the petitioners were admitted to all the benefits under the Statute of an absolute trust and interim compensation under Section 12(2) was also being sanctioned by the Board of Revenue accordingly.

3. Now by the impugned order the successor Assistant Settlement Officer wants to unsettle the settled position by reopening the aforesaid proceeding being Case No. 28 of 1965. The impugned order recites as follows:--

'As it appears that, while holding the enquiry previously all the Lands of the deity have not been considered it is felt reasonable in the law of justice to reopen the enquiry for review. Issue notice to the J. L. R. O. and the Deity enclosing an extract of this order and a Schedule of Lands fixing date on 25-2-70 at Bolpur 'B' Camp for hearing and examining the documents and account papers.'

Accordingly the impugned notice dated February 18, 1970, was issued. The notice however, does not indicate that it was a notice for the review proceeding. The notice as served reads as a notice for a new proceeding for adjudicating the true character of the endowment for the purpose of Sections 6(1)(i) and 17 of the Act. Such an order reopening the proceeding and the consequent notice thereof are the subject-matter of challenge in this Rule. Mr. Birendra Nath Ghose is appearing to contest this Rule on behalf of the respondents though no affidavit has been filed on behalf of the respondents. As a matter of fact, the facts set out hereinbefore are all borne out by the records and are not in dispute. Only question which has been raised by Mr. Chakraborty on behalf of the petitioners is a question of law as to whether the successor Revenue Officer could have any jurisdiction to initiate a proceeding for review for reopening an order which had been made conclusive long before. Relying on the decision of this Court in the case of Indira Devi v. State of West Bengal, : AIR1967Cal469 . Mr Chakraborty has contended that the Assistant Settlement Officer had no jurisdiction to review the earlier order and as such the initiation of the proceeding is itself without jurisdiction. It has been difficult for Mr. Ghose to contest this position.

4. I have set out the impugned order whereby the proceeding was sought to be initiated for review. The order does not refer to any authority under which the review is to be made. If the Assistant Settlement Officer thought that he could review the earlier order in exercise of his inherent powers, certainly he is in error. There can be no dispute on principle now that a Tribunal like the Assistant Settlement Officer possesses no inherent power of review. This position is now well settled by the three decisions of the Supreme Court, namely, Chunibhai v. Narayanrao, : [1965]2SCR328 , Harbhaian Singh v. Karam Singh, : [1966]1SCR817 and State of Madhya Fradesh v. Balkrishan Nathani, : [1964]1SCR793 .

5. On the other hand, if reliance be placed on the provisions of the Code of Civil Procedure which powers had been invested with the Assistant Settlement Officer by a notification dated January 9. 1958. then the short answer given by Mr. Chakraborty is really unanswerable, namely, that no case for review as contemplated by the relevant provisions of the Code of Civil Procedure had been made out. Order 47, Rule 1 of the Code of Civil Procedure does not authorise a suo motu proceeding for review as proposed by the Assistant Settlement Officer nor do the real grounds for such review furnish any sanction or authority for a proceeding as initiated in the present case. By the earlier order the Assistant Settlement Officer had decided the character of the endowment. He had gone into evidence and had construed the Deed of endowment itself in finding that the endowment was absolute. He had directed the records to be corrected accordingly admitting the endowment to all the benefits of an endowment made exclusively for religious purposes. Right or wrong that decision was clearly appealable but none considered himself to be aggrieved and no appeal was preferred. A successor Assistant Settlement Officer has certainly no authority or jurisdiction to take a different view and reopen the said proceeding for review on the ground that all the lands of the endowment had not earlier been taken into consideration. How far this ground is correct is a matter of dispute between the parties. But even if it be assumed to be correct still in my considered opinion it furnishes no foundation for a proceeding under Order 47, Rule 1 of the Code of Civil Procedure.

6. On the conclusions as above this application must succeed and the Rule should be made absolute and I direct accordingly.

7. Let a writ in the nature of certiorari do issue quashing the impugned order and the impugned notice as aforesaid.

8. Let a further writ in the nature of mandamus do issue directing the respondents not to proceed any further on the basis of the impugned order or in pursuance of the impugned notice.

9. There will be no order as to costs.


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