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Osman Munshi and ors. Vs. Kader Pramanick and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal768,122Ind.Cas.640
AppellantOsman Munshi and ors.
RespondentKader Pramanick and ors.
Excerpt:
- .....as collector as defined in the act. that being so, it is an order which is passed not in his judicial capacity but as an executive officer invested with certain powers under the act. that an order passed under the act is an executive order is indicated by certain provisions in the act itself. it is laid down that in attaching a char the collector has to determine what costs are to be paid by any party and any person who is aggrieved by such order must prefer an appeal to the commissioner. thus it is clear that the order passed by the collector is not a judicial order but and executive one.2. the second ground on which this rule should fail is that conceding that it is a judicial order, it is not an order which can be revised by the criminal bench of this court under section 439,.....
Judgment:

Suhrawardy, J.

1. This rule is directed against an order purported to have been passed by the Sub-Divisional Officer of Tangail under the Bengal Alluvion Lands Act (5 of 1920) directing that some huts which were erected by the second party on the disputed char were to be sold and the sale proceeds credited to the treasury. This rule should in my opinion be discharged on several grounds. The first is that the order passed by the Sub-Divisional Officer is an order passed in his capacity as Collector as defined in the Act. That being so, it is an order which is passed not in his judicial capacity but as an executive officer invested with certain powers under the Act. That an order passed under the Act is an executive order is indicated by certain provisions in the Act itself. It is laid down that in attaching a char the Collector has to determine what costs are to be paid by any party and any person who is aggrieved by such order must prefer an appeal to the Commissioner. Thus it is clear that the order passed by the Collector is not a judicial order but and executive one.

2. The second ground on which this rule should fail is that conceding that it is a judicial order, it is not an order which can be revised by the Criminal Bench of this Court under Section 439, Criminal P.C. I am not prepared to say that it is an order which can be revised by the civil side of this Court but that is the proper side to approach in matters like this.

3. The third ground which seems to settle the matter is that there is no indication in the Act that an order under it is open to appeal or revision by any Court, civil or criminal. The Collector acts in his ordinary capacity of a revenue officer and is not subject to the control of ordinary Courts. Moreover, considering the circumstances of this case it seems to me that it is a very proper order to secure tranquillity in the locality.

4. The rule fails and is discharged.

Graham, J.

5. I agree ; but I prefer to base my decision solely upon the ground that the order complained of having been passed by the Collector in his capacity as such, we have no jurisdiction to deal with the matter in the exercise of our criminal jurisdiction.


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