Nisha Nath De v. STATE OF WEST BENGAL — 1977 DIGILAW 265 (CAL)

JUDGMENT 1. THIS Rule is directed against an Order, being Order No. 1 dated January 14, 1976, made in Misc. (Levy) Revision Case No. 18 of 1976. The petitioner at all material times possessed 6. 07 acres of agricultural lands. By an Order dated 1st December, 1975, under the provisions of West Bengal Foodgrains procurement (Levy) Order 1975, he was directed to deliver 137 quintals of Aman Paddy. Thereafter, without preferring the statutory appeal under the provisions of the said levy order, he filed a review petition against the levy Order as aforesaid, under paragraph 9 of the said Order, which is to the following effect: paragraph-9 : Review and revision by State Government and District Officer-The Government or the District Magistrate or the Deputy Commissioner of a district may call for and examine the records of any order passed by any subordinate authority under the provisions of this order for the purpose of satisfying itself and himself as to the legality or propriety of such order and may give such direction in reference thereto as the Government or the District Magistrate or the Deputy Commissioner may deem fit : provided that no direction to the disadvantage of a producer shall be given under this paragraph, unless the producer concerned has been accorded an opportunity of making any representation which he may wish to make against such order : provided further that for the purposes of this paragraph, the expression "district Magistrate" and the expression "deputy Commissioner" shall include such additional District Magistrate and Additional Deputy Commissioner other than the Additional District or Additional Deputy Commissioner authorised under sub-paragraph (3) of paragraph 7, as may be authorised by the District Magistrate or Deputy Commissioner, as the case may be, in this behalf. And prayed for appropriate deductions of his levy obligations. 2. THE Additional District Magistrate, Respondent No. 2, by the impugned order in Annexure 'b,' which as aforesaid is dated 14th January. 1976, directed the petitioner to deposit 50% of the levy, in order to get the review petition admitted. Thereafter, the petitioner filed an application stating that he has delivered 4 quintals of paddy and prayed for variation of the impugned Order dated 14th January, 1976 so far the same related to the deposit of 50% of the levy. 1976, directed the petitioner to deposit 50% of the levy, in order to get the review petition admitted. Thereafter, the petitioner filed an application stating that he has delivered 4 quintals of paddy and prayed for variation of the impugned Order dated 14th January, 1976 so far the same related to the deposit of 50% of the levy. It was contended by him that he was not in a position to deliver 50% of the assessed amount of 137 quintals of paddy, as the same exceeds the total yield of paddy upon 6-07 acres of lands which the petitioner was and is possessing. Such application of the petitioner, was rejected by the said Respondent No. 2, on 9th February, 1976. It has been contended by Mr. Roy, appearing in support of the Rule, that the quantum of levy as assessed was highly illegal and irregular and the same had no relation to the actual yield of 6. 07 acres of lands, which the petitioner is admittedly possessing. In that view of the matter, it was submitted by Mr. Roy that the impugned order in Annexure "b" should be quashed, as the same was made without application of mind and illegally. 3. LIKE many other Rules, in this rule also, on 22nd May, 1977 copies of the petition, since the Rule relates to the levy matter, were taken by the respondents, but no steps have been taken by the Respondents either to appear when the Rule was taken up for hearing or to contest the same by filing any affidavit. 4. HOWEVER, on the submissions as made by Mr. Roy, on the facts of the case, the first thing which is required to be determined is, whether without preferring an appeal in terms of para 7 of the Levy Order, an application for review or revision is maintainable? A revision generally lies when there is no appeal. In the instant case when there is admittedly a provision for appeal, so an application for review without preferring the necessary appeal would not be ordinarily maintainable. Thus, the question is whether a review application without preferring the statutory appeal would be maintainable. A review may be either under section 114 or under Order 47 of the Code of Civil Procedure. Mr. Thus, the question is whether a review application without preferring the statutory appeal would be maintainable. A review may be either under section 114 or under Order 47 of the Code of Civil Procedure. Mr. Roy, on a reference to the determination of the Supreme Court in the case of Vidyavati vs. Dehidas A. I. R. 1977 S. C. 397, contended that the present application of the petitioner for review would be maintainable. In that case under an agreement dated 27th September, 1967 a loan of Rs 7500/- was advanced by A to B for a period of 2 years and in lieu of interest on the amount of loan, B handed over the possession of the premises to A and A was entitled to occupy the same free of rent. Under the agreement in question, the obligation of A to hand over vacant possession of the premises to B was concurrent with the obligation of B to repay the amount of loan to A and B could not claim possession of the premises from A without making repayment of the amount of the loan. On 26th August, 1969, B had tendered the amount of Rs. 7500/- to A in repayment of the loan, but A refused to accept the same. In 1963, B filed a suit for possession of the premises against A. On 22nd May 1973, B's suit was decreed ex parte, but the Subordinate Judge directed B in that very judgment either to tender the amount of Rs. 7500/- to A within 30 days or in case of refusal by A to accept the same to deposit the same in Court within the said period. Prior to the filing of B's suit, A had already filed a suit for the recovery of the amount of Rs. 7500/-, which was resisted by B as being barred by limitation. This suit of A was pending on 22nd May, 1973, when the ex parte decree in B's suit was passed against A. An application for review under Order 47 Rule 1 of the Code was preferred by B seeking deletion of the directions given by the Subordinate Judge to him to deposit the said amount. The Subordinate Judge allowed B's application and directed deletion of the directions. The Subordinate Judge allowed B's application and directed deletion of the directions. The review application of A before the High Court was dismissed and on appeal to the Supreme Court with special leave, it has been held: (1) That merely because B had tendered the amount due and payable by film and such tender has been wrongly refused by A, it did not absolve B from his obligation to make payment of the amount and where the obligation to make payment of the amount was concurrent with the obligation, to hand over possession the claim, for recovery of possession must be accompanied by payment or deposit of the amount. B, was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from A. (2) That B could not validly tendered the sum of Rs. 7500/- to A in repayment of the amount of the loan until 27-9-1969 and the tender made by him on 26-8-1969 was clearly invalid. Thus B did not at any time make a valid tender to A of the sum of Rs. 7,500/, The High Court as well as the Sub Judge were, therefore, in error in allowing the review application and ordering the deletion of the direction. Hence, the order allowing review application must be set aside. And it has also been observed that : under section 115 a revision application can lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court. The words of limitation used in Section 115 are "in which no appeal lies hereto" and these words clearly mean that no appeal must lie to the High Court from the order sought to be revised. Where an order allowing a review application in a suit for possession is made by sub-Judge and an appeal against such an order lies to the District Court and not to the High Court, a revision application filed against the said order before the High Court is maintainable and it cannot be rejected as incompetent. In the instant case, admittedly under para 7, an appeal lay to the Executive Magistrate and the petitioner has not admittedly given any explanation or reasons as to why he has not preferred the statutory appeal under paragraph 7 of the Levy Order. In the instant case, admittedly under para 7, an appeal lay to the Executive Magistrate and the petitioner has not admittedly given any explanation or reasons as to why he has not preferred the statutory appeal under paragraph 7 of the Levy Order. Under Order 47, Rule 1 any person aggrieved by decree or order or decision of the nature specified in clauses (a), (b) or (c) of sub-rule 1 there under, may apply for a review an any of the grounds as specified therein such power of review cannot be used suo motu or under inherent powers. An application for review involved 3 stages : (1) an ex parte application which may be rejected at once or a rule granted upon the other side to show cause; (2) the rule may be rejected or admitted at the hearing and (3) if the rule is made absolute, the 3rd stage is reached when the case is re-heard on merits. 5. FROM a reference to paragraph 9 of the Levy Order, it appears that the Government or the District Magistrate or the Deputy Commissioner of a District, may call for and examine the records of "any order" passed by any subordinate authority under the provisions of the Order in question, for the purpose of satisfying itself and himself as to the legality and propriety of such Order and may give such directions in reference thereto as the Government or the District Magistrate or the Deputy Commissioner may deem fit. This power is to be exercised subject to the two provisos as mentioned therein. The use of the word "any order" in the paragraph would clinch the issue, on the exercise of jurisdiction by the authorities as mentioned therein. Such use of the word "any order" may not only mean appellate order under para 7 of the Levy Order in question but would also include any other order as mentioned in the Levy Order in question. Thus in terms of the determination of Supreme Court as cited at the Bar, the petitioner would be entitled to maintain the review application, if he can come under the 3 clauses as mentioned in Order 47, Rule 1. Thus in terms of the determination of Supreme Court as cited at the Bar, the petitioner would be entitled to maintain the review application, if he can come under the 3 clauses as mentioned in Order 47, Rule 1. The first proviso to paragraph 9 of the Levy Order in question requires that in the matter of exercising the power of review or determining such application no direction to the disadvantage of a producer shall be given unless the producer concerned has been accorded an opportunity of making any representation, which he may wish to make against such order. Here in the instant case, the order directing deposit of 50% of the Levy as a condition precedent for entertaining or admitting the re view petition, was thus improper, because admittedly, the petitioner was not given an opportunity of being heard prior to the making of the said Order in terms of the proviso as aforesaid. 6. THUS, this application should succeed and the Rule is made absolute. There will be no order for costs. Let appropriate writs be issued setting aside the Order dated 14th january, 1976 made in Misc. Levy Revision Case No. 18 of 1976. 10. This will not, however, prejudice the Respondents from proceeding afresh in the matter and to make appropriate determination in accordance with the law, on the review petition in question, after hearing the petitioner or giving him an opportunity of being heard. Rule made absolute.