SHIRSHA NATH MALLICK Vs. ARUN KUMAR SARKHEL

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against an order dated 6th January, 2009 passed by the learned Additional District Judge, Barrackpore, North 24-Parganas in Misc. Case (Act VIII) No. 147 of 2007 in the following background. An application under Section 8 of the Hindu Minority and Guardianship Act, 1956 read with Section 10 Guardian and Wards Act, 1890 was filed by the petitioner inter alia praying for his appointment as guardian over the person and property of the minor Sri Shila Dipta Mallick. The said application which was filed by the petitioner before the learned District Judge at Barasat was registered as Misc. Case No. 147 of 2007 under Act VIII of 1890. On the very day when the said application was filed before the learned District Judge at Barasat, the petitioner filed an application before the learned District Judge at Barasat inter alia praying for transfer of the said case to the court of the learned Additional District Judge at Barrackpore, North 24-Parganas on the grounds stated therein.

(2.) THE petitioners prayer for transfer was allowed and the said Misc. Case was transferred to the Court of the learned Additional District Judge at Barrackpore for disposal. Since then several orders were passed by the learned Additional District Judge at barrackpore regarding service of notice of the said application upon the opposite party. But ultimately when the said application was matured for hearing and, in fact, was posted for hearing before the learned Additional District Judge at Barrackpore, the learned Judge declined to consider the said application on merit as according to the learned Judge, the said Court being not authorized under Section 4a of the Guardians and Wards Act, 1890 is incompetent to try the said proceeding for want of authorization under Section 4a of the said Act. Accordingly, the records relating to the said proceeding was sent back to the Court of the learned District Judge. The learned District judge again returned the records of the said proceeding to the Court of the learned Additional district Judge at Barrackpore for consideration of the said Misc. Case.

(3.) ON receipt of the records of the said Misc. Case, the learned Additional District Judge refused to proceed with the said case unless the said Court is appointed and/or empowered under section 4a (1) of the said Act. Accordingly, hearing of the said proceeding was kept in abeyance. The instant application under Article 227 of the Constitution of India has been filed by the petitioner before this Court in the above peculiar set of facts. Mr. Chatterjee, learned Senior Counsel, appearing for the petitioner submits that his client has no choice of any particular Court. He thus prayed for issuance of direction upon the Court, which according to this Court will be appropriate for consideration of his clients application, for expeditious disposal thereof, without making any further submission as to which Court is competent to consider such application as per law. But, since an important question has been raised in this application, this Court feels that this Court should not avoid to answer the said question herein. The only question which is raised before this Court herein is as to whether any authorization under Section 4a of the said Act is necessary for trial of the said Misc. Case by the Court of the additional District Judge of a district or not.