BHOIRABENDRA NARAYAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is an application under Article 228 of the Constitution of India, in which the petitioner, who is the plaintiff in the suit, has prayed for transfer of Title Suit No. 27 of 1954, pending before the Subordinate Judge at Dhubri, to this Court.

(2.) IT appears that on 21 -7 -54, a notification was issued by the State Government, which is the opposite party to this application and defendant in the above suit, to the effect that the estate of the petitioner would vest in the State Government from 15 -4 -1955, by virtue of the provisions of the Assam State Acquisition of Zamindaris Act, 1951 (Act 18 of 1951). Substantially, the petitioner's case is that the Act in question is 'ultra vires' the Constitution, being in conflict with some of its provisions; and, in the alternative, the petitioner claims that even if the Act is held to be valid, it would not affect the estate of the petitioner and, therefore, the notification issued by the State Government cannot prejudice his interest. It is accordingly alleged that the said suit instituted by the petitioner in the Court of the Subordinate Judge at Dhubri involves substantial questions of law as to the interpretation of the Constitution, and that the determination of the said questions is essential for the disposal of the case. The application for transfer is opposed by the learned Advocate General on behalf of the State Government. The learned Advocate General points out that although there may be substantial questions of law as to the interpretation of the Constitution involved in the suit, those questions may not be necessary for the disposal of the suit, and, as such, this Court should not transfer the case from the file of the learned Subordinate Judge to its own file. The learned Advocate General states that so far no written statement has been filed in the suit and no issues have been settled; and it is, therefore, premature at this stage to find out whether or not the case will be concluded by certain other points raised therein. If those other points are decisive of the case, then it would be wholly unnecessary to adjudicate upon the constitutional questions raised therein.

(3.) A reference was also made to a decision of the Madras High Court in - - 'Ramaswami Ambalam v. Madras Hindu Religious Endowments Board' : AIR 1952 Mad 20 (B), which is another single Judge decision. That case, however, does not very much support the contention of the learned Advocate General. It was pointed out there that if the suit could be disposed of on the other questions raised (like limitation, non -maintainability by a single person when a representative suit has to be filed under the law, etc.), Article 228 would not apply. It was further pointed out that usually the High Court would not act till this point was clear, and would wait for the other issues to be decided. By other issues, in all probability, the learned Judge meant preliminary issues of the nature indicated by him, and I agree that, in special cases of that nature, it may perhaps be desirable to stay one's hands before acting under Article 228; but, as I have said, I am not prepared to go to the length of holding that the High Court should wait until all the other issues had been decided. In that case, the object of the transfer under Article 228 of the Constitution would be rendered ineffective.