Research › Browse › Judgment

Calcutta High Court · body

1979 DIGILAW 351 (CAL)

Abdus Sattar v. Abdul Jalil

1979-10-25

CHITTATOSH MOOKERJEE

body1979
JUDGMENT Sk. Abdul Jalil, respondent No. 1 herein, by several registered sale deeds conveyed different portions of Plot No. 6296, mouza Kusumgram, in favour of the petitioner. Thereafter the respondent No. 1 had filed two applications under Section 4 of the West Bengal Restoration of Alienated Land Act, 1973 for restoration of the lands alienated by the aforesaid sale deeds in favour of the petitioner. The present petitioner had opposed the said applications. The Block Development Officer, Manteswar, as the Special Officer under Act XXIII of 1973 allowed the application of the respondent No. 1 in respect of 42 dec. of land in Khatian No. 270, Plot No. 6296 and ordered restoration of the said land. He, however, rejected the prayer for restoration made in the other application in respect of 33 dec. of land conveyed by the respondent No.1 by kobala dated 17th January, 1968. 2. The present petitioner being aggrieved by the said restoration order preferred an appeal. The respondent No. 1 also preferred an appeal before the Sub-divisional Officer as the appellate authority in respect of rejection of his prayer for restoration in respect of the sale deed dated 17th January, 1968. The Sub-divisional Officer, as the appellate authority under the aforesaid Act, dismissed the appeal of the petitioner. He allowed the appeal of the respondent No. 1, ordered restoration also in respect of 33 dec. of land conveyed by the Kobala dated 17th January, 1968 in favour of the present petitioner. Thereafter the petitioner obtained the present two Rules. 3. The appellate authority in his impugned order in Case No. MP 222 of 1975 has found that the Special Officer did not record in writing the evidence adduced by both parities. But according to the appellate authority the case was to be disposed of according to the summary procedure and, therefore, the Special Officer was not required to record the evidence received by him. It was sufficient that the Special Officer had discussed the points taken by the parties in their statements and had heard the verbal submissions on the impugned order. The appellate authority also upheld the finding of the Special Officer regarding the rate of yield of agricultural produce and the price thereof. 4. In my view, the appellate authority committed a jurisdictional error by holding that the Special Officer was not required to keep any record of the evidence adduced by the parties. The appellate authority also upheld the finding of the Special Officer regarding the rate of yield of agricultural produce and the price thereof. 4. In my view, the appellate authority committed a jurisdictional error by holding that the Special Officer was not required to keep any record of the evidence adduced by the parties. No doubt, the West Bengal Act XXIII of 1973 and the West Bengal Restoration of Alienated Land Rules, 1973 do not expressly prescribe for recording evidence adduced in cases under the said Act. But the Special Officer exercising the jurisdiction under Section 4 of the Act is required to act quasi-judicially. The Special Officer acting under Section of the Act has all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the production of documents. Thus, the Special Officer for the purposes specified under Section 8 is required to act in the manner the civil court functions. Under sub-section (4) of Section 4 of the Act, the Special Officer is enjoined to consider the evidence adduced by the parties and to hear them. The restoration order made under Section 4 is subject to an appeal. An appeal taken against the order of the Special Officer would be practically futile unless at-least the substance of the evidence adduced by the parties before the Special Officer is recorded. The findings made by the Special Officer as to whether the transfer in question was made in distress or in need or for other needs specified in Section 4(1)(a) or whether the transfer was with an agreement for reconveyance cannot be examined by the appellate authority unless such records of evidence adduced by the parties before the Special Officer are kept. 5. In the instant case, the appellate authority in spite of its findings that evidence was not recorded by the Special Officer committed an error of jurisdiction by not allowing the appeal and remitting the matter back to the Special Officer for fresh disposal of the cases in accordance with law. The appellate authority also committed a jurisdictional error by allowing the appeal of the present respondent No. 1 in respect of 33 dec. of land transferred by Kobala dated 17th January, 1968. The appellate authority also committed a jurisdictional error by allowing the appeal of the present respondent No. 1 in respect of 33 dec. of land transferred by Kobala dated 17th January, 1968. Although the Special Officer did not record any evidence the appellate authority purported to reverse the findings of the Special Officer and to arrive at findings of fact contrary to those made by the Special Officer. And no finding having been recorded by the Special Officer the appeal against his order was practically nugatory. I have already indicated that atleast a summary recording of evidence was required. On this ground the appeal of Sk. Abdul Jalil should have been allowed and the matter submitted back. 6. In my view, these Rules should succeed. The orders of the appellate authority and of the Special Officer should be set aside and the cases which are subject matters of the appeals should be remitted back to the Special Officer for fresh disposal in accordance with law. The Special Officer will keep atleast summary records of the evidence adduced by the parties and thereafter dispose of the cases in accordance with law. 7. I accordingly make these Rules absolute and quash and set aside the orders passed by the appellate authority, and also the orders of the Block Development Officer, Manteswar as the Special Officer. Let writs of Mandamus issue commanding the Special Officer, respondent No. 2 to again dispose of the aforesaid cases in accordance with law and in accordance with the directions made in this judgment. At this stage, express no opinion on the cases of the respective parties. There will be no order as to costs.