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Abanindra Kumar Maity and anr. Vs. A.K. Majumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 2104 to 2120 and 2122 to 2127 of 1954
Judge
Reported inAIR1956Cal273,60CWN299
ActsConstitution of India - Article 226; ;West Bengal Bargadars Act, 1950; ;Evidence Act, 1872 - Section 115
AppellantAbanindra Kumar Maity and anr.
RespondentA.K. Majumdar and ors.
Appellant AdvocateS.K. Das, ;R.P. Lahiri, ;Benode Behari Haldar and ;Dwijendra Nath Basu, Advs. in all the cases, ;S.M. Bose, ;Jaineswar Majumdar, ;Mihir Kumar Sarkar and ;Smriti Kumar Roy Chaudhury, Advs. for the Appe
Respondent AdvocateChandra Narayan Laik and ;Ajit Kumar Mukherjee, Advs. in Revn. Nos. 2104 to 2120 and 2127 of 1954, ;Arun Prokash Chatterjee, Adv. in Revn. No. 2101 of 1954, ;Biswanath Naskar and ;Bankim Chandra Roy,
DispositionApplications dismissed
Excerpt:
- .....lands, so long cultivated by bargadars under, them and are directed against orders passed by the appellate officer, in appeals by the bargadars whereby orders passed by the board, directing restoration of possession of the lands concerned to the petitioners were set aside.the principal ground on which the orders are challenged is that the west bengal bargadars act, 1950, is ultra vires, being violative of articles 19(l)(f), 19(l)(g) and 31(2), constitution of india. the rules were issued by one of us, but when they came up for final hearing, it appeared to him that it would be more advantageous, to have the important questions involved in the cases decided by a larger bench. there were two reasons why that course appeared to be preferable. one was that the question of the alleged.....
Judgment:

Chakravartti, C.J.

1. These are thirty Rules, taken out by the same or different owners of different plots of lands, so long cultivated by Bargadars under, them and are directed against orders passed by the Appellate Officer, in appeals by the Bargadars whereby orders passed by the Board, directing restoration of possession of the lands concerned to the petitioners were set aside.

The principal ground on which the orders are challenged is that the West Bengal Bargadars Act, 1950, is ultra vires, being violative of Articles 19(l)(f), 19(l)(g) and 31(2), Constitution of India. The Rules were issued by one of us, but when they came up for final hearing, it appeared to him that it would be more advantageous, to have the important questions involved in the cases decided by a larger Bench. There were two reasons why that course appeared to be preferable. One was that the question of the alleged invalidity of the Act was one of fundamental importance and the same question was involved in a large number of cases actually pending and would, in all probability, arise in a larger number of cases which would come up in future.

The other reason was that there had already been a decision by a Division Bench of this Court which had held the Act to be intra vires and the learned Judge before whom the Rules came up for hearing, thought that if, on the cases as a whole or in respect of certain of the points involved, he found himself unable to agree with the view taken by the Division Bench it would be embarrassing for him either to express or to give effect to his own opinion. In those circumstances, he referred the cases to the Chief Justice for the constitution of a larger Bench. Thereafter, the present Bench was constituted.

2. The cases out of which the Rules have arisen are all of the same pattern and the essential facts may be said to be common. It may be that the dates of the applications made to the Board are different and it may also be that the grounds on which the applications were based were not the same in all cases; but so fat as the attack on the Act is concerned, it may be said to be based on a set of facts common to all the cases.

3. Briefly stated, those facts are as follows. In the first instance, the Bargadars made applications to the Board established under the Bargadars Act for orders for the division of the produce in accordance with the provisions of Section 3.

Those applications were allowed, but the owners, who are the petitioners before us, being dissatisfied, preferred appeals.

The appeals were allowed in part, but it is alleged that during the time the appeals were pending, the Bargadars violated an order for stay made by the Appellate Officer and forcibly took away a larger share of the produce than was subsequently allowed to them.

4. The next thing which happened was that the petitioners before us who, as I have already said, are the owners of the lands concerned, made applications before the Board for restoration of the lands to them on the grounds mentioned in Clauses (a), (b) and (d) of Section 5(1) of the Act.

They alleged that they required the lands bona fide for cultivation by themselves; further, that the Bargadars had wilfully neglected to cultivate the lands property; and thirdly, that they had, also failed to comply with the order for stay passed by the Appellate Officer and had, in fact, violated it. The Board allowed the applications, but did so only on one of the grounds. They chose Clause (d) of Section 5(1) and held that inasmuch as the Bargadars had disobeyed the order of the Appellate Officer, the owners were entitled to have the lands restored to them.

5. Thereafter, the Bargadars preferred appeals to the Appellate Officer and those appeals were allowed. The orders made by the Board were set aside and it was directed that the Bargadars would continue to cultivate the lands as before. It was against those orders that the petitioners moved this Court under Article 226 of the Constitution and obtained the present Rules.

6. Before us the Act was impugned on a large variety of grounds. In addition, the orders made by the Appellate Officer were questioned on the merits. It was said that apart from the invalidity of the Act under which they were passed, the orders were plainly bad, because they were made on applications which had been filed after the expiry of the period of limitation prescribed.

7. We have heard Mr. Das in support of the Rules at great length and have also heard the learned Advocate General on behalf of the Appellate Officer. The Bargadars have been represented by different learned Advocates, but we have not found it necessary to hear them, because, in our view, the Rules must fail on a preliminary ground.

8. I have said already that the principal ground relied upon by the petitioners is that the West Bengal Bargadars Act, 1950, is void, being repugnant to Articles 19(l)(f), 19(l)(g) and 31(2), Constitution of India. I have also stated that the applications out of which these Rules have arisen were made by the petitioners themselves and they were applications made under the very Act impugned and for reliefs under the Act.

The position is that after having made applications under an Act for reliefs provided for therein and after having obtained the relief prayed for but lost it in appeal, they have turned their attack on the Act itself and have invited this Court to hold that it should be declared to be void.

9. In our opinion, the position taken up by tbe petitioners is utterly untenable. It has been held by this Court more than once that although the existence of an alternative remedy is not, an absolute bar to the entertainment or maintenance of an application under Article 228 of the Constitution, still, if a party had availed himself of the alternative remedy, he could not after having exhausted those remedies or gone a certain way in their pursuit, switch round to Article 226 of the Constitution and start a fresh line of proceeding under that provision,

The present case is of an even worse character. When the petitioners made their applications for restoration of possession under the West Bengal Bargadars Act, they obviously accepted the Act as good law and elected to proceed under it. They even succeeded and if nothing else had happened, they would have retained the benefit which they had obtained by recourse to the Act and would not presumably have been too axious to cause it to be declared to be void.

As it happened, the opposite parties preferredappeals & the benefits obtained by the petitionersfrom the orders of the Board were taken awayfrom them -- but taken away under a provision of an Act which they had themselves invoked.What they are now doing is that after having accepted the Act as good and having proceededunder it, they are asking us to declare that veryAct to be void, but, at the same time, asking us torestore to them the benefit which they had obtainedby recourse to the same Act.

One has only to turn to one of the applications to see its structure. It proceeds by reciting the facts which I have already stated, narrates the circumstances in which the orders of the Board and those of the Appellate Officer were passed, states that the benefits conferred on them by the orders of the Board were taken away by the orders of the Appellate Officer and makes it a grievance that this should have been done.

Having stated the nature of the benefit which they wanted to be restored to them and made it perfectly clear that it was a benefit obtained by them in a proceeding launched by themselves under the Act, they asked this Court to declare the same Act to be void, but asked further that not only the orders of the Appellate Officer be quashed but also that the opposite parties be restrained from disturbing their possession and directed to restore the crops taken away by them in excess of their proper share.

The prayers contained in the petitions are all, related to the proceedings initiated by the petitioners and those proceedings, as I have already stated, were proceedings under the very Act which they now impugn. In my view, it is quite impossible to allow a party who has himself proceeded under an Act and asked for reliefs thereunder, to turn rounds in the course of the same proceeding or at a subsequent stage thereof and say that he challenges the validity of the Act and invokes the jurisdiction of this Court under Article 226 of the Constitution for a declaration or an order to that effect.

The petitioners cannot be allowed to say on the one hand that the Act is good and that the benefit which they obtained under the Act should be restored to them and say, at the same time, that the Act is a bad one and should be declared to be utterly void.

Not only can they not be allowed to take up such inconsistent positions, but they cannot also be allowed to execute a procedural somersault as it were, and proceed a certain way under the Act and then disclaim and repudiate all that they themselves had done and veer round to challenge the Act itself. In my view, that is what the petitioners are doing in the present case and they cannot plainly be allowed to do so.

10. That the petitioner's attack on the Act cannot be entertained in the present proceedings will appear even more clearly if we consider the strange result which must follow if the attack succeeds. They made applications under the Act and by those applications obtained back the possession of their lands which they are asking this Court to protect by quashing the orders of the Appellate Officer and by issuing injunctions against the opposite parties.

But if the Act itself be declared invalid, as they now pray, it will not be the Appellate Officer's orders alone which will be affected. Their own applications which brought them the possession of their lands must also be held to have been invalid, being made under an Act which had no existence in law. They will thus be left with nothing at all.

It was said that even if such might be the consequence of the petitioners' contention succeeding, they would accept it cheerfully, if they could obtain a determination at 'the same time that the Act was void. But the jurisdiction under Article 226 was not given to this Court for the purpose of its declaring, at the instance of petitioners under the Article, that certain proceedings which they themselves had initiated were grounded in a void law and for quashing all orders passed in the proceeding, whether against them of in their favour. The jurisdiction can properly be invoked only for the purpose of obtaining relief and not for the purpose of having the validity of Acts adjudged in the abstract or being delivered from the relief which had been obtained by a mistaken recourse to a void law.

It is but too clear that besides that the petitioners, having proceeded under the Act, cannot be allowed to challenge its validity in or in the chain of the same proceeding, nor can be allowed to resort to Article 226 after having betaken themselves to remedies under the Act, their applications under tile Article are also not sustainable, because the ground on which they are based makes them virtually applications for our holding that their own initial applications under the Act were invalid and the reliefs given to them under it ought not to have been given.

11. One exception, however, must be made to the principles I have just referred to and that exception requires to be made with respect to the contention, of the petitioners that the appellate orders were invalid, because they were passed on applications made out of time. This contention involved no challenge to the Act, but was a contention under the Act itself and, therefore, the reasons which I have given for repelling the petitioners attack on the Act will not apply here.

Article 226, it will be recalled, empowers the High Court to issue writs or orders or directions not only for the enforcement of any of the fundamental rights, but also for any other purpose. The petitioners are therefore not barred from taking the point on limitation by reason of their having proceeded under the Act.

We cannot, however, give effect to the petitioners' contention, because in order to enable us to do so under Article 226 of the Constitution, the error of law must appear on the face of the order. It is true that the face of the order need not be limited to the actual paper on which the order is inscribed, but may also comprise one or two correlated documents, if it refers to them by its own , terms. The error, however, must be a patent error, lying on the face of the order and capable of being seen without being shown by a decision, though the face need not be the surface.

It may be a place a little below appearing, as has been said, if the face is scratched. In the present case, however, there was nothing on the face of the orders, even so understood, to show that the applications on which they were passed had been made out of time. Mr. Das invited us to investigate the point and decide it after examining the relevant materials, as if we were dealing with a Rule issued under Section 115, Civil P. C. It is however not permissible under Article 226 of the Constitution and On an application for a writ to make any investigation of the kind, proposed and either embark on a discovery of facts for ourselves or substitute our decision for that of the authority complained of, even though the point involved may be an error of law. Correction or removal of such errors by means of a Writ is possible only, as I have already stated if the error appears on the face of the order.

12. For the reasons given above, I am of opinion that the applications made by the petitioners under Article 226 of the Constitution were not, in view of the nature of the proceedings to which they related, maintainable and the rules issued on these applications cannot for that reason alone be sustained. The Rules must, therefore be discharged on that preliminary ground. I desire to make it clear that we express no opinion one way or the other on any of the various contentions urged before us by either side.

13. We make no order as to costs.

Lahiri, J.

14. I agree.

Sinha, J.

15. I agree.


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