PARESH CHANDRA GIRI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The question which arises for consideration in this application is as to whether the respondent No. 2, Bhag Chas Officer acted within bis jurisdiction in issuing the impugned notice dated 30.8.95 as contained in Annexure 'F' to the writ application. According to the petitioner, in the years 1992 and 1993, proceedings were initiated by the respondent No. 9 for recording his name as bargadar. Although the said proceedings ended in favour of the petitioners but the records had been stolen. The petitioners contend that because of local politics the respondent No. 2 proposed to record the name of respondent No. 9 at bargadar and issued a certificate to that effect in his name.

(2.) Mr. Dutta, learned Counsel appearing on behalf of the petitioners submits that keeping in view the fact that various proceedings had been going on by and between the petitioner and the respondent No. 9, including a suit, wherein an order of injunction has been passed, the impugned notice must be held to have been issued wholly without jurisdiction. According to the learned Counsel, as valid orders have been passed in the years 1992 and 1993 by a competent Revenue Officer in terms of Sec. 51 of the West Bengal Land Reforms Act, the question of issuance of any notice by the respondent No 2 in terms of Sec. 18(1) thereof does not arise. As indicated hereinbefore, no document has been annexed by the petitioners to show that any order had been passed in their favour and against the respondent No. 9 on the ground that the records had been stolen, although the petitioners have annexed a copy of the searching slip dated 16.4.93 which is contained in Annexure 'B' to the writ application. In my opinion, the said question should be raised before the respondent No.2. There cannot be any doubt that in a given case this Court in exercise of its jurisdiction under Art. 226 of the Constitution of India can entertain a writ application where a notice has been issued wholly, without jurisdiction, but as the case at hand involves certain questions of fact, it ts desirable that the jurisdictional facts raised by the petitioners in this application, should also be decided at the first instance by the respondent No. 2 himself. There cannot be any doubt whatsoever that if the name of the respondent No. 9 had not bees recorded as bargadar, and he had lost in the earlier proceedings, the question of issuing any notice in terms of Sec. 18(1) of the Act would not arise, but the fact as to whether such proceedings had ended in favour of the petitioners and against the respondent No. 9, must be verified by the respondent No. 2. In Management of Express Newspapers (Private) Ltd. Vs. The Workers & Ors. reported in AIR 1963 SC 569 , the Apex Court held:-

(3.) Similar observation has been made by the Apex Court in State of Uttar Pradesh Vs. Brahm Dutt Sharma & Anr., reported in AIR 1987 SC 943 , in the following terms:-