BIBHUTI BHUSAN MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS is a 'petition against an order under Article 227 of the Constitution in a matter relating to section 5a of the West Bengal Estates Acquisition Act, 1953, mr, Mitter on behalf of the petitioner urges that under section 5a (5), Proviso (ii) i; was the duty of the trial authority to record evidence as under Order 18, rue 5 of the Code of Civil Procedure, "he trial authority did not record that evidence as it was bound to do. The result was that there was no oral evidence before the appellate authority and the appellate authority therefore vas somewhat compelled to say that there was no evidence before him In fact as there was no record of deposition before him, he could not say otherwise but the trial authority his referred to in his order the names of certain persons who were examined before him and who deposed before him. The question, under such circumstances is whether the authorities under section 5a of the West Bengal Estates Acquisition Act are bound by law to record evidence as under Or. 18, r. 5, CPC. We shall therefore refer to the relevant sub-section (5) of section 5a reads as follows : -

(2.) THE question for interpretation would be the phrase 'shall have all the powers'. The question is whether this provision is to be understood as directory or mandatory. It is well known in rules of construction that in interpreting matters of procedure, a statute may be understood cither as obligatory or directory, it should rather be understood as obligatory and not directory, Therefore, the provision must be understood to mean that. it is the duty of the authorities below to record the evidence in the same manner as it would be the duty of a civil a court to record evidence in all cases except those referred to therein. The exception does not apply in this case. Therefore, the trial authority should have recorded the evidence and then decided the case. We, therefore, must hold that the trial authority below failed to exercise the powers vested in it by law. The result was that the appellate authority below which was the authority on question of fact was deprived of the advantage of reading the deposition of persons who deposed before the trial authority. In that view of the matter, we must set aside the order of the appellate authority and direct the matter be sent back on remand to the appellate authority so that the parties may have an opportunity of adducing oral evidence before the authority and the appellate authority will take that evidence and will consider the documentary evidence as well and then will make appropriate finding in accordance with law and in accordance with the observations aforesaid.

(3.) THE result is that the Rule is made absolute. The matter is sent back to the appellate authority who will give opportunity to both parties to adduce Such oral evidence as the parties may think fit and proper and then the authority will decide the case on such, evidence on record. There will be no order as lo costs.