Mon Mohan Kanrar v. Pulin Chandra Sasmal — 1996 DIGILAW 352 (CAL)

Judgment D.P. Sarkar (II), J. 1. This is an application under Art. 227 of the Constitution directed against the order dated 28.6.94 passed in Restoration of Alienated Lands (Act) Case No. 12 of 1992 by the Appellate Authority under West Bengal Restoration of Alienated Land Act of 1973 dismissing the appeal and affirming the Judgment and Order of the Special Officer. 2. The Opposite Party transferred the disputed land to the predecessor of the present petitioner by a registered Kobala on 11.3.68 being in distress and for the maintenance of self and the members of the family. It is also the case that there was an oral agreement for reconveyance. The Special Officer after hearing both the parties passed an order in favour of the Opposite Party directing the restoration of the alienated land. 3. On being aggrieved, the present petitioner filed an Appeal before the Appellate Authority on the ground that in view of the amendment introduced in. the year 1980, the order passed directing restoration of the land was without jurisdiction and illegal. Because of the amendment in 1980, sub-ss. (9) & (10) were added to s. 4 of the Act and according to the provision of -sub-so (10) the Special Officer shall not make any order under sub-so (4), if the transferee including the members of his family holds on the date of transfer not more than once acre of land including the transferred land and such land becomes the principal source of income of the transferee and unless the transferor including the members of his family holds more than one acre of land including the transferred land on the date of transfer. According to the petitioner the Special Officer and the Appellate Authority both have ignored this aspect and as such the impugned order should be set aside. 4. It appears that the amendment was introduced by West Bengal Act LVI of 1980. It came into force with effect from 20.4.81. Therefore, when the transfer took place in 1968 there was no such provision and when the application for restoration was filed i.e. on 17.1.81 there was no provision like that. 5. It is submitted by the learned Advocate for the petitioner that the amendment shall take effect retrospectively. There is no specific intention expressed in the Act itself that the amendment would have retrospective operation. 5. It is submitted by the learned Advocate for the petitioner that the amendment shall take effect retrospectively. There is no specific intention expressed in the Act itself that the amendment would have retrospective operation. On the other hand, the valuable right under S. 4(1) of the Act already accrued to the Opposite Party at the time of filing of that application. In my opinion, if the amended provision is given retrospective effect it will take away that valuable right already accrued to the Opposite Party. Such interpretation should not be encouraged. The Supreme Court of India has laid down in a case reported in 1983 (2) SCC 34, that retrospective operation of amendment should be in relation to the present status and rights of the affected person. It cannot forfeit the right acquired under the principal Act. Accordingly, I feel constrained to hold that the provision of S. 4(10} of the R.A.L. Act has no application to the transaction in question and as such no error has been committed either by the Special Officer or his Appellate Authority. The Special Officer has passed the order in favour of the Opposite Party on the basis of the facts and other materials on record and the Appellate Authority after considering the materials also was pleased to affirm the order passed by the Special Officer. There is no illegality in the impugned order and the order has not been passed beyond jurisdiction. 6. The learned Advocate appearing for the respondent submits that apart from the question of merit of the petition under Art. 227 of the Constitution, this Court shall not exercise the power of superintendence under Art. 227 of the Constitution unless there is apparent illegality and error in jurisdiction. The Supreme Court in Maneck vs. Sarfaraj Ali reported in AIR 1976 SC 2446 has specifically laid down that the power of superintendence should be sparing used. In support of his contention the learned Advocate for the respondent has also referred to the decision of the Supreme Court reported in AIR 1984 SC 38 and another decision of Calcutta High Court reported in Calcutta 1996(1) SC 326. 7. The learned Advocate for the Opposite Party submits that the matter in question is barred by limitation. The right to file an application for restoration of alienated land should be exercised within ten years from the commencement of the Act i.e. 1973. 7. The learned Advocate for the Opposite Party submits that the matter in question is barred by limitation. The right to file an application for restoration of alienated land should be exercised within ten years from the commencement of the Act i.e. 1973. This extension of time was introduced by the amending Act of LVI of 1980. Thus, the time limit was extended upto 1983. The present application for restoration was filed in 17.1.81. So, it is within time. The contention of the learned Advocate for the Opposite Party is thus not acceptable. 8. Thus, in view of the discussions made above, I hold that the petition under Art. 227 of the Constitution of India fails and the matter is accordingly disposed of on contest but without cost. Application is disposed of.