NANI GOPAL SAHA Vs. JATINDRA LAL CHOWDHURY

JUDGEMENT

(1.) This appeal by special leave arises from the judgement of the High Court Division in Writ Petition No. 60 of 1976. Leave was granted to consider the question raised by the appellant-whether under the provisions of the President's Order No. 13 of 1972 the Tribunal has any power to remand; and whether the High Court Division took the correct view that the Tribunal could not direct for re-hearing of the case, and as provided under the Statute, should have adjudicated and decided the case fully and finally, if necessary after taking further evidence in the matter.

(2.) The facts, in short, necessary for proper appreciation of the contention under consideration may be stated thus: Respondents 1 and 2 challenged legality of the order of the Tribunal and filed an application under Article 7(5) of the President's Order No. 13 of 1972 with Boxirhat Union Arbitration Court. The Arbitration Court forwarded the record of the case to the Thana Magistrate recording that the appellant did not appear before the Arbitration Court, and as such it has no jurisdiction to make any order. The Thana Magistrate caused notices to be served on the parties, who as required in the law, appeared, on consideration of the report submitted by the Magistrate as per direction of the Thana Magistrate and after hearing of the parties and holding local enquiry the Thana Magistrate by his order dated March 15, 1975 directed for restoration of possession of the premises in question to respondents 1 and 2, and possession was delivered to them on March 20, 1975. Against this order the appellant filed an appeal before the Tribunal being Tribunal Appeal No. 3 of 1975 contending, inter alia, that the Arbitration Court was not properly constituted. The Tribunal accepted the contention and after setting aside the order of the Thana Magistrate remanded the case for rehearing by a properly constituted Arbitration Court according to law Validity of this order was challenged by the respondent by filing an application under Article 102 of the Constitution on the ground that the Tribunal acted in excess of its jurisdiction in remanding the ease to the Thana Magistrate for re-hearing inasmuch as statute does not provide any such power to the Tribunal. A Division Bench on examining the different provisions of the President's Order No. 13 of 1972 held that judgment of the Tribunal directing rehearing of the case by the Arbitration Court afresh suffers from clear want of jurisdiction and was made without lawful authority and of no legal effect. This decision is under challenge in this appeal on the ground that the learned Judges committed a substantial error of law in setting aside the judgment of the Tribunal on an erroneous view that the Tribunal has no power to remand.

(3.) Before the Tribunal it was contended, inter alia that the order of restoration of possession passed by the Thana Magistrate was illegal and without jurisdiction, inasmuch as the recommendation of the Arbitration Court on the basis of which the order was made, was not the recommendation of a properly constituted Arbitration Court. On examining the record the Tribunal found that the Arbitration Court was not properly constituted, because, there is nothing on record to indicate that the case was dealt with by a properly constituted Arbitration Court as contemplated under Article 4 of the Presidents Order No. 13 of 1972. According to the Tribunal, there is nothing to show on record that any member other than the Chairman ever participated in the proceedings. Consequently, the Tribunal held that the findings made in the case were made by the Chairman alone, and as such the same could not be the findings of the Arbitration Court; and that possession could not be delivered on the basis of such illegal findings. The learned Judges of the High Court Division, however, took the view that if the Arbitration Court was not properly constituted, the Tribunal being the final appellate authority constituted by the statute itself, and the Tribunal being a special forum created under the special law in the absence of any power specifically given for remanding a case for fresh hearing, the order of remand was wholly unauthorised being in excess of its jurisdiction. On this finding the learned Judges set aside the order of the Tribunal and directed the Tribunal to decide the case fully and finally by itself on the merit.