ANIMESH CHANDRA BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Revisional application is directed against the order dated 31.3.81 passed by Shri B. Banerji, learned Sub Divisional Judicial Magistrate, Asansol directing the Officer -in -Charge of Chittaranjan Police Station for proper assistance to enter into the quarters no. C/11/B Street No. 63, Chittaranjan and remove any person found therein and deliver possession of the same to the concerned railway authority under Sec. 138 of the Indian Railways Act, 1890. It is not disputed that the petitioner was a railway servant working in Chittaranjan Locomotive Works and was allowed to occupy the aforesaid railway quarters at Chittaranjan, that his service was terminated due to retirement from railway service with effect from 14.6.76, and that a notice was served on him on 21 -1 -80 to vacate the said railway quarters and that the petitioner has not vacated the said railway quarters after service of notice, In these circumstances, the concerned railway authority applied before the learned Sub divisional Judicial Magistrate, Asansol for an order under Sec. 138 of the Indian Railways Act directing the police officer to enter the said quarters end remove the petitioner and deliver the same to the railway administration. On such application the learned magistrate has passed the impugned order dated 31.8.81.

(2.) It is submitted by the learned advocate for the petitioner that the learned magistrate has erred in making the impugned order without giving the petitioner an opportunity of being heard and thereby violating the principle of audi alteram partem as the rules of natural justice ought to have bean complied with by the learned magistrate before making the impugned order.

(3.) In this connection learned advocate for the petitioner has referred to the decision In the case of Daud Ahmad v/s. The District Magistrate, Allahabad & Ors. : AIR 1972 SC 896 relating to Sec. 3 of U. P. (Temporary Control of Rent and Eviction Act, 1947 and the decision repotted in the case of G. Rajalakshmi & Ors. vs. Appellate Authority & Ors. : AIR 1980 A P. 100 But it has been observed by the Supreme Court In the aforesaid decisions (Vide paragraph 12) that the application of any statutory power depends primarily on the purpose and provisions of the Act. It is the nature of the power and the circumstances and conditions under which it is exercised that will occasion the invocation of the principles of natural justice. The provisions of the relevant acts which arose for consideration In the aforesaid two decisions, relied on by the learned advocate for the petitioner spelt out the necessity of giving an opportunity of being heard to the party against whom the impugned order was made by the executive authority or the tribunal.