Narayan Chandra Das v. Ashwini Kr. Singha — 1994 DIGILAW 41 (CAL)

Judgment Tarun Chatterjee, J. 1. A short but important question of law that arises for decision in this application under Article 227 of the Constitution is whether an appellate authority acting under the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) has power to restore an appeal which was dismissed by it for default. 2. Before I take up the aforesaid question for decision, brief facts of this case may be stated, which are as follows: 3. The petitioner has filed a suit for declaration of title and injunction in respect of the property in dispute in the Second Court of the Munsif at Diamond Harbour against the opposite parties. In the suit an application was filed by the opposite parties for making a reference under s. 21 (3) of the Act to the officer authorised under s. 18 (1) of the Act. The reference was made by the learned Munsif under s. 21 (3) of the Act to the authorised officer under the Act for adjudication of the disputes raised in the application under s. 21 (3) of the Act. The authorised officer, under the Act, passed a final order deciding the question referred to him under s. 21 (3) of the Act. An appeal was preferred by the petitioner under s. 19 of the Act against the said order. On 8th of March, 1984, the Appellate Authority dismissed the appeal for default as no one was present to press the appeal. An application for restoration of the appeal was filed stating the reasons for which the petitioners could not be present at the time of hearing of the appeal. The application for restoration was dismissed by the appellate authority only on the ground that the Act does not confer any power on it to, review its own order. Against this order, the petitioners have come up to this Court under Article 227 of the Constitution. 4. Before I proceed further, I may mention here that the said application was, in fact, not an application for review of the order dismissing the appeal for default but it was a simple application for restoration of an appeal which was dismissed for default. Let me now, therefore, proceed treating the said application as an application for restoration of the appeal, dismissed for default. 5. Let me now, therefore, proceed treating the said application as an application for restoration of the appeal, dismissed for default. 5. According to the appellate authority, it has no power to review the earlier order dismissing the appeal for default as no such power has been conferred on it by the Act. 6. The question that crops up for consideration in this application under Article 227 of the Constitution is whether the appellate authority either in the exercise of its power conferred on it by the Act or in its inherent power, if there is one, can restore an appeal dismissed for default. To reach to a proper answer to this question, referred to hereinabove, it would be necessary to consider some of the relevant provisions of the Act. Section 57 of the Act consider jurisdiction on the officer under the Act to exercise powers of a Civil Court under the Code of Civil Procedure only for the purposes mentioned in the said section. Section 57 of the Act runs as follows : "S. 57. Powers of Officer dealing with proceedings under this Act. Subject to the provisions of this Act and any rules made thereunder, any officer in dealing with proceedings under this Act shall exercise the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of (a) summoning and enforcing the attendance of any person and examining him on oath as a witness, (b) requiring the discovery and production of any document or record, (c) receiving evidence on affidavits, (d) requisitioning any public record or copy thereof from any Court or office, (e) issuing commission for the examination of witness of documents, (f) enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court, and (g) remanding any case or proceedings to the officer from whose decree the appeal is preferred, and such officer shall record the substance of the evidence, if any, taken by him." 7. Looking at s. 57 (g) in the Act, as it now stands, it is evident that the Legislature has now introduced the said Section by amendment of the Act and by the introduction of s. 57 (g) in the Act, the Legislature has expressly conferred power on the appellate authority to pass an order of remand in any appeal to the officer from whose order the appeal is preferred. Before introduction of s. 57 (g) of the Act, the judicial pronouncements were made holding that even though the Appellate authority, acting under the Act, had not been conferred with any power to remand even then such power of remand could be exercised by the appellate authority in order to effectually discharge its duties, and therefore must be deemed to possess such power impliedly. Therefore, by introduction of s. 57 (g) of the Act, only the power of the appellate authority to remand a case to the officer against whose order an appeal is preferred has now been made explicit. In this connection one more aspect of the matter is to be considered. Before the amendment of s. 57 of the Act, it is seen that s. 57, as it stood before its amendment, had conferred power to any officer, dealing with the proceedings under the Act, to exercise the powers of a Civil Court under the Code of Civil Procedure, 1908 only for the purpose of enforcing the attendance of witnesses and the production of records or documents or for enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court and power was also conferred to the officers to record the substance of evidence, if any, taken by him. But after the amendment of s. 57 of the Act, the following powers of a Civil Court under the Code of Civil Procedure have now been conferred upon the officer in dealing with the proceedings under the Act : (1) Summoning and enforcing the attendance of any person and examining him on oath as a witness ; (2) Requiring the discovery and production of any record or document: (3) Receiving evidence on affidavits; (4) Requisitioning any public record or copy thereof from any Court or office (5) Issuing commission for the examination of the witnesses or documents (6) Enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court; (7) Remanding any case or proceeding to the Officer from whose decree the appeal is preferred ; (8) The power to record the substance of the evidence, if any, was also retained. 8. Therefore, after persual of the s. 57 of the Act, as it stood before and after its amendment, it is patently clear that some more powers of the Civil Court under the Code of Civil Procedure have now been conferred by the amendment of s. 57 of the Act upon the officers dealing with the proceedings under the Act including the appellate authority. In my view, when specific power has been conferred on the appellate authority to pass an order of remand under s. 57 of the Act as it now stands, it must be held that by necessary implication, the appellate authority retains the power to restore an appeal which is dismissed by it for default. 9. At this juncture, s. 19 of the Act, before and after is amendment, may also be considered. Section 19 of the Act, as it now stands, provides for an appeal against any order made under Ss. 17, 18 or sub-so (3) of S. 21. Section 19(3) now confers powers on the appellate authority to make an: order staying execution of the order appealed against. This sub-s. (3) of s. 19 was added with retrospective effect by s. 9 of the West Bengal Land Reforms (Amendment) Act, 1965. 17, 18 or sub-so (3) of S. 21. Section 19(3) now confers powers on the appellate authority to make an: order staying execution of the order appealed against. This sub-s. (3) of s. 19 was added with retrospective effect by s. 9 of the West Bengal Land Reforms (Amendment) Act, 1965. Before this amendment there was no specific power conferred on the appellate authority to stay execution of an order appealed against but it appears, by judicial pronouncement, it was held that the appellate authority had such jurisdiction to stay execution of) an order appealed against as the judicial decisions on this question were that such power of stay of execution of the order appealed against carried with the appellate authority by necessary implication. 10. Therefore, by the introduction of S. 19 (3) of the Act, which confers on the appellate authority to grant stay of execution of the order appealed against only establishes such principles of law which were pronunciated by judicial decisions before the amendment of s. 19 (3) of the Act. It is true that s. 57 of the Act as it now stands, does not expressly say that the officers dealing under the Act can pass orders in the interest of justice between the parties. At the same time it is equally true that the Act nowhere prohibits such use of power by the authorities. In the absence of a specific provision in the Act prohibiting such use; of power by the officers dealing with any proceeding; under the Act and I considering the scheme of the Act which I have already discussed herein-i above, it has to be held that power of restoration of an appeal by the appellate authority has been conferred on it by necessary implication. It is difficult to conceive that although the Act confers power on the Appellate Authority to pass orders of remand and stay of execution of the order appealed against but the appellate authority does not have any power to restore an appeal which has been dismissed by it for default. In AIR 1970 SC 1273 (Patel Narshi Thakershi and Others vs. Pradyumansinghji Arjunshinghji) in paragraph 4 at page 1275 it has been observed by the Supreme Court as follows: " . . . . . . It is well settled that the power to review is not an inherent power. In AIR 1970 SC 1273 (Patel Narshi Thakershi and Others vs. Pradyumansinghji Arjunshinghji) in paragraph 4 at page 1275 it has been observed by the Supreme Court as follows: " . . . . . . It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to my notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order......" (Emphasis added.). From the aforesaid observation of the Supreme Court it is clear that even in the absence of a specific power conferred by the special statute to its officers, such power can be conferred by necessary implication. In view of my discussions, made hereinabove, I am, therefore, of the opinion that the appellate authority, had power under the Act by necessary implication to restore an appeal dismissed by it for default. 11. Apart from that, in my view, the power of restoration inheres in the appellate authority as a necessary incident because it has plenary jurisdiction to decide the question as to whether the order passed by the officer authorised under s. 18 of the Act holding that the opposite party was a bargadar in respect of the suit land was legal. Therefore, in my view, the power of restoration inheres in the appellate authority to restore an appeal dismissed by it for default on the grounds analogous to those in s. 151 of the Code of Civil Procedure. 12. Mr. Bhattacharjee, appearing for the opposite parties, however, relies on the aforesaid decision of the Supreme Court reported in AIR 1970 SC 1273 (Patel Narshi Thakershi and Others vs. Pradyumansinghji Arjunsinghji) and, submitted that the power of review under Order 47 Rule 1 of the Code of Civil Procedure, is not an inherent power and, therefore, the appellate authority was justified in holding that it had no inherent power to restore the appeal dismissed for default. In my view, this decision of the Supreme Court cannot be applied in the facts and circumstances of this case because in this case, the appellate authority was asked only to restore the appeal which was dismissed by it for default and question of review of its earlier order, which was passed on merit, was not at all an issue in this case. Even in the said decision of the Supreme Court, as noted hereinbefore, it has been observed that it is well settled that the power to review must be conferred by law either specifically or by necessary implication. As discussed hereinabove, from a perusal of the aforesaid provisions of the Act, I am of the view that by necessary implication, the appellate authority has been conferred with an inherent power to restore an appeal dismissed by it for default. Apart from that in a latter decision of the Supreme Court reported in AIR 1981 SC 606 (Grindlays Bank Ltd. vs. The Central Government Industrial Tribunal & Ors.) the Supreme Court while dealing with a case under the Industrial Disputes Act considered the question as to whether the Tribunal had the power to pass an order if such order, in the opinion of the Tribunal ought to have been passed by it in the interest of justice. In paragraph 6 at page 608 the Supreme Court observed as follows : "6. We are of the opinion that the Tribunal had the power to pass the impugned order if it though fit in the interest of Justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is well known rule of statutory Constitution that a Tribunal or a body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary." (Emphasis added) 13. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary." (Emphasis added) 13. From the aforesaid observation of the Supreme Court it is therefore, clear that the Tribunal should be considered to be endowed with such ancillary or incidental powers, as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Therefore, from the aforesaid observation of the Supreme Court, it must be concluded that the appellate authority has a right to pass an order of restoration of the appeal dismissed by it for default., for the ends of justice and such power must be construed to be the powers exercised by the appellate authority as ancillary or incidental in view of the fact that they are necessary for discharging its function effectively for the purpose of doing justice between the parties. It is also clear from the aforesaid observation of the Supreme Court that the appellate authority should be considered as envisaged with such ancillary or incidental powers unless there are indications to the contrary. On perusal of s. 57 and other relevant provisions of the Act, I do not find any such statutory prohibition in the Act. Therefore, in view of the discussions made hereinabove, and in view of the observation of the Supreme Court, as referred to hereinabove, I am of the view that even under the West Bengal Land Reforms Act the appellate authority had the power to restore an appeal dismissed for default as the same must be construed to have been passed in the exercise of ancillary or incidental powers conferred on the appellate authority under the Act. 14. Mr. Bhattacharjee, appearing on behalf of the opposite parties, tried to impress me by relying on a Division Bench decision of this Court reported in AIR 1971 Cal 381 (Haji Mahabub Hossain and Ors. vs. Biswanath Nandy & Anr.) to hold that s. 57 of the Act does not confer any inherent power to the appellate/authority to restore an appeal dismissed for default. vs. Biswanath Nandy & Anr.) to hold that s. 57 of the Act does not confer any inherent power to the appellate/authority to restore an appeal dismissed for default. In view of my discussions made hereinabove, and in view of the aforesaid decisions of the Supreme Court, I am not impressed by the argument of Mr. Bhattacharjee. In AIR 1971 Cal 381 (Haji Mahabub Hossain & Ors. vs. Biswanath Nandy & Anr.) a Division Bench of this Court held that s. 57 of the Act does not give power to the Revenue Officers to grant ad-interim order of injunction either under s. 151 or under Order 39 of the Code. There cannot be any quarrel on the principle enunciated in the said Division Bench decision. When specific power of granting injunction has not been conferred on the authorities under the Act or in particular under s. 57 of the Act, it is no doubt true that such power cannot be exercised by exercising its inherent power to grant an interim order of injunction. 15. In my view, the case in hand before me is a case where an appeal was dismissed for default and a restoration application was made before the appellate authority as noted hereinabove. Therefore, the question in this case is whether such restoration order can be passed in the exercise of inherent power of the appellate authority. In view of my discussions made hereinabove, and in view of the decisions of the Supreme Court as referred to hereinabove, I do not find any prohibition in the Act itself by which it can be said that in appropriate cases, such power cannot be exercised by the appellate authority. Therefore, I am of the view that the principles enunciated in AIR 1971 Cal 381 (Haji Mahabub Hossain & Ors. vs. Biswanath Nandy & Anr.) cannot be applied to the facts of this case. 16. Mr. Bhattacharjee, in support of his contention also relies on the decision of a Full Bench of Kerala High Court reported in AIR 1967 Kerala 287 (Kalyani Amma Bhargavi Ammo vs. Ouseph Varkey of Attukadavil House). I fail to understand how the said decision is of any help to decide as to whether an appellate authority under a special statute has the power to restore an appeal dismissed for default or not. I fail to understand how the said decision is of any help to decide as to whether an appellate authority under a special statute has the power to restore an appeal dismissed for default or not. In that case an application under Kerala-I of 1964 Act was filed for fixation of fair rent. The said application was dismissed for default. In view of the decision of the Supreme Court reported in AIR 1981 SC 606 and also in view of the decision of this Court reported in 93 CWN 942 (Smt. Ratu Dutta vs. State of West Bengal & Ors.), I am unable to rely on this decision for the purpose of deciding the question in issue. Apart from that, as observed hereinbefore, I am of the opinion, after going through the Kerala High Court Judgment that the said decision of the Kerala High Court is also not applicable to the facts and circumstances of this case. In 93 CWN 942 (Smt. Ratu Dutta vs. State of West Bengal & Ors.), G. N. Ray, J. (as His Lordship then was) held in a proceeding under the West Bengal Restoration of Alienated Land Act, 1973 that the contention that the appellate authority had no jurisdiction to remand the matter before the Special Officer in view of the fact that there is no express provision in the Act to make such an order of remand was also not acceptable. The Court has the inherent power and such inherent power has its root in necessity and its breath is co-extensive with the necessity. G. N. Ray, J. in the' said decision has observed in paragraphs 7, 8 and 9 as follows: "The contention of the learned counsel that the appellate authority had no jurisdiction to remand the matter before the Special Officer in view of the fact that there is no express provision in the Act to make such an order of remand is also not acceptable. It is a settled principle of law that a court has an inherent power and such interent power has its root in necessity and its breath is co-extensive with the necessity. Such necessity has been clearly laid down by the Supreme Court in the case of Nawabgunj Sugar Mills vs. Union of India, AIR 1976 SC 1152 . It is a settled principle of law that a court has an inherent power and such interent power has its root in necessity and its breath is co-extensive with the necessity. Such necessity has been clearly laid down by the Supreme Court in the case of Nawabgunj Sugar Mills vs. Union of India, AIR 1976 SC 1152 . Although the authority under s. 4(1) of the Act and the appellate authority under the said Act are not Courts but they are judicial or quasi-judicial tribunals having the trappings of the Court and such Tribunals have also inherent power on the principle of s. 151 of the Code of Civil Procedure for effectively discharging the duties and functions for which such Tribunals are constituted. In this connection Mr. Sahu, learned counsel appearing for respondent No. 4 has referred to a decision of the Supreme Court made in the case of Grindlays Bank Ltd. vs. The Central Government Industrial Tribunals & Ors., reported in AIR 19'81 SC 606. The Supreme Court has held in the said case that it is wellknown rule of statutory construction that the tribunal or quasi-judicial body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. .. .. .. .. It does not appear from the provisions of the West Bengal Restoration of Alienated Land Act that any direction for remand for proper adjudication of the matter by the first Tribnal is prohibited by' any express provisions of the Act......... In the aforesaid circumstances, if the appellate authority had felt that some factual investigations were required to be made by the first Tribunal for effectively deciding the case for restoration of some portion of the alienated land and also the quantum of compensation to be payable for such restoration of a portion of the alienated land, the appellate authority, in my view, is not without power to direct for such adjudication by the first Tribunal by remanding the matter. Such exercise of power of remand is only ancillary and incidental to the power for effectively discharging the duties of the appellate authority. " 17. Such exercise of power of remand is only ancillary and incidental to the power for effectively discharging the duties of the appellate authority. " 17. In view of the aforesaid principles laid down in the said case to which I am in full agreement it must be held that the appellate authority has jurisdiction to restore an appeal which was dismissed for default. It is true that the said decision reported in 93 CWN P. 942 was passed on the provisions of the West Bengal Restoration, of Alienated Land Act, 1973. In my view, in the West Bengal Restoration of Alienated Land Act, 1973, limited power has been given to the officer or to the appellate authority whereas for more wide power has now been conferred to the authorities under the Act. If it is held in a proceeding under the West Bengal Restoration of Alienated Land Act, 1973 that power of remand has been conferred to the authorities as it was inherent in them, there is no difficulty in holding also that the power of restoration of an appeal dismissed for default can also be applied in a case under the Act. 18. In view of the aforesaid principles laid down in the case that even in a special statute, namely West Bengal Restoration of Alienated Land Act, 1973, where the appellate authority has not been given any power to pass an order of remand to the Special Officer against whose decision an appeal was preferred before the appellate authority even then the appellate authority in its inherent power and to do justice between the party has jurisdiction to remand the case to the Special Officer there is no difficulty in holding that in the case of Land Reforms Act and also where s. 57 of the Act does not confer or take away specifically the inherent power of the appellate authority to pass an order in order to do justice between the parties and in view of the discussions made hereinbefore and the decision reported in AIR 1981 SC 606 (Grindlays Bank Ltd. vs. The Central Government Industrial Tribunal &r Ors.), it must be held that the Appellate Authority retains the jurisdiction to restore an appeal dismissed for default. For the reasons aforesaid, set aside the order of the appellate authority dismissing the application for restoration on the ground that it had no jurisdiction under the Act to restore the appeal, dismissed for default. I have myself gone through the application for restoration filed by the petitioner and after going through the same and after considering the facts and circumstances stated in the said application, I am of the view that the facts stated in the said application do constitute sufficient cause for non-appearance of the petitioner on the date the appeal was dismissed for default. 19. Accordingly, the application for restoration filed by the opposite parties is allowed. The impugned order is set aside. The revisional application is thus allowed. 20. There will be no order as to costs. 21. The appellate authority is now directed to dispose of the appeal on merits and in accordance with law within a period of four months from the date of receiving a copy of this order by it. 22. Office is directed to communicate this order to the Appellate Authority as expeditiously as possible. Revisional Application allowed.