ARABINDA GUHA Vs. GIRIBALA DEBI

JUDGEMENT

(1.) This rule arises out of an application filed under Article 227 of the Constitution of India. Arabinda Guha -- the petitioner owned and possessed some laud pertaining to Plot No. 1549 of Mouza Sultanpur. Giribala Devi -- opposite parly filed an application under Section 4 of the West Bengal Acquisition and Settlement of Homestead Land Act. 1969 before the Collector, 24-Parganas, and her case was that she had constructed a house on a land pertaining to plot No. 1549 of Khatian No. 537 measuring .04 acres equivalent to more or less 0.016 hectare where she had been residing continuously since 21st June, 1952. She prayed before the Collector that the said land may be acquired and settled with her under the provision of the aforesaid Act. The petition went to the Sub-Divisional Magistrate, Barrack-pore who, under a Notification of the West Bengal Government dated 27th August, 1969 had been authorised to discharge the function of a Collector under the aforesaid Act. Tile Notification was numbered as 16314 L. The learned Sub-Divisional Magistrate had an enquiry held by the Block Development Officer concerned who submitted a report to the learned Magistrate. The report is dated 17-5-1973. Having received the report the learned Magistrate perused the file, and heard both parties and passed his order on May 28, 1973. By his order he allowed the application of the opposite party and ordered the homestead land to be demarcated, and settled with the petitioner Giribala as vested land of the State. Being aggrieved the petitioner before me went up in appeal before the Collector, 24 Parganas The appeal was heard by the Additional District Magistrate, 24-Parganas, as Appeal No. 2 of 1973-74 under Act XV of 1969. By his order dared 27th of November, 1973, the learned Additional District Magistrate, 24-Parganas, upheld the order of the learned Sub-Divisional Magistrate. Being aggrieved the present Rule has been obtained.

(2.) Mr. Dhruba Kumar Mukherjee, learned Advocate for the petitioner, submits in the first place that the learned appellate Court below was wrong in holding that the petitioner had admitted that Giribala bad been in possession of the disputed land as an occupier for more than three years after constructing a but thereon. Mr. Mukherjee also contended that the learned appellate Court was in error in holding that such an admission had been made before him. He submits that in fad, no such admission had been made.

(3.) Mr. Anil Kumar Sett, learned Advocate appearing on behalf of the opposite parties, submits that this question cannot be agitated new because the same had not been agitated when the judgment was delivered by the appellate Court below. In this connection be draws my attention to a case reported in the matter of Kesbab Ch. Dutta v. Ballygunge Estate Pvt. Ltd., (1973-77 Cal WN 5C7). I have considered the matter. If an admission had not been made the proper course was to bring this fad to the notice of the appellate Court below. Since ibis was not done, I cannot permit the petitioner to agitate this point. Therefore, the objection raised by Mr. Sett regarding the agitation on this point at this stage has to be sustained.