BRAJA MOHAN CHOUDHURY Vs. REVENUE OFFICER AND OTHERS

JUDGEMENT

(1.) The appellant has preferred this appeal under Clause 15 of the Letters Patent against the judgment of his Lordship the Honourable Mr. Justice Sabyasachi Mukharji dated 20th Feb., 1979 summarily rejecting his writ petition.

(2.) We have heard Mr. Kazi Mohammad Ali, for the appellant and Mrs. Mukti Maitra, for the State-respondents. Mrs, Maitra has also placed before us the original records of Case No. 39/DNK of 1976 under Sections 14(S) and 14(T) of the West Bengal Land Reforms Act. We are inclined to set aside the order of summary rejection of the writ petition filed by the appellant. Presumably, the attention of the learned Single Judge was not drawn to the full facts of the case because the learned Single Judge appears to be' under a mis-apprehension that the impugned proceeding under Sec. 14(S) and 14(T) of the West Bengal Land Reforms Act was conducted against Braja Mohan Choudhury, the appellant. After perusing the original records of the said proceeding, we are convinced that the said proceeding was against Sushil Krishna Choudhury, the father of Braja Mohan Choudhury, who had appeared through an against (not Braja Mohan Choudhury). Braja Mohan Choudhury was not made a party in the said proceeding and at no stage he was called upon to exercise his option. He did not appear either personally or through a representative. Therefore, the learned Single Judge was clearly in error in finding that Braja Mohan Choudhury, the appellant, did not choose to exercise his option, and that, no discretionary order under Art. 226 of the Constitution should be made in his favour.

(3.) Therefore, the impugned order of summary rejection of the writ petition of the appellant-petitioner should be set aside, But, we do not propose to remand the case for fresh hearing by the learned Single Judge. Upon the undisputed facts it is possible for this Court to dispose of the entire matter We shall presently indicate the facts which are not disputed by cither of the parties. In fact, the respondents who have produced the original records of the impugned proceeding do not also pray that the case should be remanded in the event we set aside the judgment appealed against. If such a course is adopted, the same would only result in prolonging the proceeding without either party deriving any benefit or advantage. Our attention has been drawn to paragraph 16 of the judgment of Bose C.J. and Debabrata Mookerjee J. in Mahadeo Prasad Saraf Vs. S.K. Srivastava & ors. AIR 1963 Cal 152. In the context of the previous rules relating to the proceedings under Art. 226 of the Constitution, the Division Bench in the said case had answered in the negative the question whether the appellate court's power is limited only to the consideration of the question whether a Rule Nisi should issue or not and to remit the case to the lower trial court in the event of its coming to the conclusion that a case for a Rule Nisi had been made out. The Division Bench in Mahadeo Prasad Saraf Vs. SI. Srivastava & ors. (supra), had proceeded to observe that such limitation or restriction on the power of the appellate court is not warranted. There may be cases in which the appellate court may consider it desirable and proper to dispose of the proceeding under Art. 226 of the Constitution finally at the appellate stage without sending the case back for disposal by the trial court. According to the Division Bench where no investigation of facts is necessary and the only question for determination is a question of law, there is no reason why the appellate court cannot dispose of the case finally. We arc in respectful agreement with the above statement of law. In the instant case, it is not necessary to go into the questions of disputed fact and the respondents have already produced the original records of the impugned proceeding. Therefore, it is not necessary to give any further opportunity to the respondents to file any affidavit.