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Bhola Nath Dutta Vs. Laya Majhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal451
AppellantBhola Nath Dutta
RespondentLaya Majhi and ors.
Excerpt:
- .....the petitioner that the sub-divisional officer made an order not warranted by the act and that the district judge, in refusing to interfere with his order, proceeded on assumptions of fact which were erroneous.2. a preliminary objection has been taken to the jurisdiction of the high court to entertain the application on which the present rule was issued. in our opinion, on the facts of the present case that objection must prevail.3. the material facts are the following. it appears that on 16-8-1943, the opposite parties, who are members of an aboriginal tribe, obtained permission from the collector under section 49(f), bengal tenancy act, to sell certain of their lands in order to procure money for the purchase of other lands. they admitted that they bad received from the petitioner a.....
Judgment:

Chakravartti, J.

1. This rule is directed against an order dated 10-8-1945, passed by the learned District Judge of Midnapur by which he rejected an application in revision made to him under the proviso to Section 10, Bengal Alienation of Agricultural Land (Temporary Provisions) Act (Bengal Act 5 [V] of 1944). The order against which the said application in revision was directed was an order dated 3-5-1945, passed by the Sub-Divisional Officer of Jhargram under Section 8(1) of the Special Act, already referred to. It is complained by the petitioner that the Sub-Divisional Officer made an order not warranted by the Act and that the District Judge, in refusing to interfere with his order, proceeded on assumptions of fact which were erroneous.

2. A preliminary objection has been taken to the jurisdiction of the High Court to entertain the application on which the present rule was issued. In our opinion, on the facts of the present case that objection must prevail.

3. The material facts are the following. It appears that on 16-8-1943, the opposite parties, who are members of an aboriginal tribe, obtained permission from the Collector under Section 49(F), Bengal Tenancy Act, to sell certain of their lands in order to procure money for the purchase of other lands. They admitted that they bad received from the petitioner a sum of Rs. 80 and, by the order granting them permission to sell the lands as prayed for, the Collector directed that the balance of the consideration should be paid in the presence of the Registrar, at the time of registration. Subsequently, on 19-10-1943, the petitioner completed the purchase and a document was executed, the consideration being Rs 250. In the kobala, the reason for selling the lands was stated to be the same as that mentioned in the application made to the Collector.

4. The Bengal Alienation of Agricultural Land (Temporary Provisions) Act came into force on 4-1-1945. On 18th February following, the opposite parties made an application under Section 8(1) of the said Act, whereby they prayed that the lands sold by them to the petitioner might be restored to them and the transaction of sale might be converted into a usufructuary mortgage. It was stated in the opening sentence of the application that the petitioners were asking for 'restoration of the agricultural lands sold by them during the year 1943 for the maintenance of themselves and their family.' The application came to be disposed of finally on 3-5-1945, when the Sub-Divisional Officer made the order asked for on, as is stated, 'a joint petition of compromise.' He placed it on record that the petitioner to this Court was absent, but his lawyer was present on his behalf.

5. Against this order of the Sub-Divisional Officer an application was made before the District Judge under the proviso to Section 10 of the Act. The learned Judge, by his order dated the 10-8-1945, rejected the application on two grounds. In the first place, he stated that the application made by the opposite parties contained a verified statement of the nature contemplated by Sub-section (3) of Section 4 of the Act and that the petitioner having adduced no evidence in rebuttal, the order passed by the Sub-Divisional Officer was the only order which could possibly have been passed. In the second place, he observed that the order was one passed on compromise and on the evidence, the petitioner could not repudiate the compromise on the allegation that he was no party to it. It was against this order that the present Rule was issued.

6. Section 10, Bengal Alienation of Agricultural Land (Temporary Provisions) Act, provides as follows:

Neither the High Court nor any Civil Court shall have jurisdiction in any matter which the Collector is empowered to dispose of under this Act. Provided that if any person who is dissatisfied with any order of the Collector made under Section 4 or Sub-section (1) of Section 8 may within 30 days from the date of such order apply in the prescribed manner to the District Judge for the revision of such order and the 4ecision of the District Judge thereon shall be final.

7. 'Collector' as defined in the Act, includes an officer appointed by the Provincial Government to discharge the functions of a Collector under the Act.

8. It is quite clear from the main provision of Section 10 above set out, that if the subject matter of the proceeding before the Collector was one which he was empowered to dispose of under the Act, the jurisdiction of the High Court and of all civil Courts is altogether excluded. The only remedy provided by the Act against the the order passed by the Collector is an application to be made to the District Judge, but that remedy is subject to the qualification that the order which the District Judge may pass shall be final. Even apart from this last qualification, the Section expressly excludes the jurisdiction of the High Court by the general language in the main part of the section, at least in cases which fall properly within the ambit of the Collector's powers.

9. It may however be said that if a party can establish that the subject-matter of the proceeding before the Collector was one which he was not empowered to dispose of under the Act but that the Collector had yet proposed to do so, the High Court would have jurisdiction to interfere, not however with the order of the Collector as such, but with the order of the District Judge passed in revision if he too upheld the order. That was in fact what was said in the present case. Mr. Mukherji, who appeared for the petitioner contended that the application which the opposite parties made before the Collector was not accompanied by a verified statement as contemplated by Sub-section (3) of Section 4. The statement there referred to is one to the effect that the partition (sic petitioner) could not have maintained himself or his family except by making the alienation of the agricultural land which he wanted to have set aside. We are inclined to agree with Mr. Mukherji, that there was no such statement in the present case and that the learned District Judge was in error in assuming that there was. But the existence of such a statement is not one 'of the essential requisites necessary to attract the jurisdiction' of the Collector. A statement as contemplated by sub Section (3) of Section 4, if it is made along with the application, only gives the applicant the benefit of a presumption. There is nothing in the Act to prevent him from proving that he could not have maintained himself or his family without making the disputed alienation by evidence adduced in the course of the proceeding. The whole argument of Mr. Mukherji was that inasmuch as a statement of the kind contemplated by Sub-section (3) of Section i of the Act, was wanting, there was an initial lack of the requisite material upon which only the Collector could regard himself as empowered to deal with the application.

10. We are entirely unable to accept this contention. The application, as already stated, most clearly mentioned the fact that the lands had been sold for the maintenance of the applicants and members of their family during the year 1943. It was also clear from the application, as was indeed the fact, that the consideration was Rs. 250. Those circumstances' having been present there was in our opinion, nothing else that was required to attract the jurisdiction of the Collector under Section 4 or Section 8 of the Act. Whether he would ultimately allow the application or reject it, on a consideration of the materials placed before him by the parties, was a different matter altogether, being a question of ultimate decision and not of initial jurisdiction. In our opinion, the present matter was one which the Collector was empowered to dispose of under the special Act and accordingly apart from the question as to whether the District Judge is or is not a persona designata under the provisions of the proviso and whether or not the High Court can interfere with his order is any circumstances, this Court is debarred from interfering in the present case by the terms of the main provision of Section 10.

11. Mr. Mukherji contended in the second place that his client was not a party to the compromise and that neither he nor his lawyer was present before the Sub-Divisional Officer on the date when the alleged joint petition of compromise was filed. This again is a matter for the decision of the Collector on the evidence, and, it may be, of the District Judge as well. We are unable to see how this matter at all bears on the question of the Collector's jurisdiction or how it helps Mr. Mukherji in establishing the jurisdiction of this Court.

12. For the reasons above given, we hold that on the facts in the present case this Court has no jurisdiction to interfere with the order of the District Judge or, by interfering with his order, to interfere with the order of the Collector. The Rule must accordingly be discharged, but we make no order as to costs.

Ellis, J.

I agree.


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