Ram Krishna Sharma, J.
1. This rule arises out of an application filed under Article 227 of the Constitution of India. Arabinda Guha -- the petitioner owned and possessed some laud pertaining to Plot No. 1549 of Mouza Sultanpur. Giribala Devi -- opposite parly filed an application under Section 4 of the West Bengal Acquisition and Settlement of Homestead Land Act. 1969 before the Collector, 24-Parganas, and her case was that she had constructed a house on a land pertaining to plot No. 1549 of Khatian No. 537 measuring .04 acres equivalent to more or less 0.016 hectare where she had been residing continuously since 21st June, 1952. She prayed before the Collector that the said land may be acquired and settled with her under the provision of the aforesaid Act. The petition went to the Sub-Divisional Magistrate, Barrack-pore who, under a Notification of the West Bengal Government dated 27th August, 1969 had been authorised to discharge the function of a Collector under the aforesaid Act. Tile Notification was numbered as 16314 L. The learned Sub-Divisional Magistrate had an enquiry held by the Block Development Officer concerned who submitted a report to the learned Magistrate. The report is dated 17-5-1973. Having received the report the learned Magistrate perused the file, and heard both parties and passed his order on May 28, 1973. By his order he allowed the application of the opposite party and ordered the homestead land to be demarcated, and settled with the petitioner Giribala as vested land of the State. Being aggrieved the petitioner before me went up in appeal before the Collector, 24 Parganas The appeal was heard by the Additional District Magistrate, 24-Parganas, as Appeal No. 2 of 1973-74 under Act XV of 1969. By his order dared 27th of November, 1973, the learned Additional District Magistrate, 24-Parganas, upheld the order of the learned Sub-Divisional Magistrate. Being aggrieved the present Rule has been obtained.
2. Mr. Dhruba Kumar Mukherjee, learned Advocate for the petitioner, submits in the first place that the learned appellate Court below was wrong in holding that the petitioner had admitted that Giribala bad been in possession of the disputed land as an occupier for more than three years after constructing a but thereon. Mr. Mukherjee also contended that the learned appellate Court was in error in holding that such an admission had been made before him. He submits that in fad, no such admission had been made.
3. Mr. Anil Kumar Sett, learned Advocate appearing on behalf of the opposite parties, submits that this question cannot be agitated new because the same had not been agitated when the judgment was delivered by the appellate Court below. In this connection be draws my attention to a case reported in the matter of Kesbab Ch. Dutta v. Ballygunge Estate Pvt. Ltd., (1973-77 Cal WN 5C7). I have considered the matter. If an admission had not been made the proper course was to bring this fad to the notice of the appellate Court below. Since ibis was not done, I cannot permit the petitioner to agitate this point. Therefore, the objection raised by Mr. Sett regarding the agitation on this point at this stage has to be sustained.
4. Mr. Mukherjee draws my attention to lie definition of the word 'homestead' as given in the West Bengal Estate Acquisition Act, 1953, because the same definition applies under Section 2(d) so far as the West Bengal Act XV of 1969 is concerned. Thereafter Mr. Mukherjee draws my attention to Sections 4 and 5 of the aforesaid Act 15 of 1969. In this connection be also draws my attention to the report submitted by the Block Development Officer, it has been observed in para 1 'that the petitioner Sm. Giribala Devi bas been residing in her house constructed on her purchased land i. e. C. S. Plot No. 1548 since 1953 constructing there of a katoha but and as per statement of most of the above witnesses it is learnt that since occupation, of the said plot by the petitioner, there was a sign board of 'Sanjibani Ousadhalaya'-- Proprietor Sri Gopal Chan-dra Chakraborty, who happens to be a son of the petitioner. The said sign board has Hot been found during enquiry.'
5. Mr. Mukherjee submits that this paragraph of the report has not been properly taken into consideration. Section 4 requires that 'where an occupier has constructed a homestead on the land in his possession and has been residing therein continuously for a period of not less than three years immediately before the date of coming into force of this Act, he may, within two years from such date, make an application in such manner and containing such particulars as may be prescribed, to the Collector having, jurisdiction'. He submits that read with the report, it would be clear that the applicant Giribala had not been residing in the case land but had been residing in her own house constructed on her own land. The person who was actually residing might have been her son, but he is not the applicant for settlement of the homestead land.
6. Mr. Sett who appears for the opposite parties raises two questions. In the first place, be submits that a question of fact cannot be entertained in considering the application under Article 227 of the Constitution. In this connection he relied upon the case of India Pipe Fitting Co. v. Fakruddin M. A. Baker : 1SCR797 . Next be submits that even an error of law cannot be corrected by hearing an application under Article 227 of the Constitution, In support of this proposition of law, be refers to the case Mobd. Yunus v. Mohd., Musraqim : 1SCR211 . As regards the propositions of law, I have no quarrel but the facts have also got to be considered in which connection these propositions had been enunciated or adumbrated by the Supreme Court. After bearing Mr. Mukherjee and perusing the law applicable in this case, I am of the opinion that the learned appellate Court below has sturred over the point regarding whether Giribala was actually residing in the case land or not. The learned Court below also did not consider whether actual residence on the suit plot was necessary to succeed in an application under the West Bengal Acquisition and Settlement of Homestead Land, 1969 or not. There fore, in my opinion, the appellate Court below did not properly bear the matter and it is the duty of every Court to hear the matter properly and adequately. To decide a case without hearing the matter properly, or adequately in some way infringes the principles of natural justice.
7. Having considered the different aspects of this case, I am of the opinion that the learned Court below should rehear the matter, and decide the appeal in accordance with law.
8. The Rule is allowed to the extent indicated above and made absolute. I make no order at to costs.