BALLYGUNGE REAL PROPERTY AND BUILDING SOCIETY LTD Vs. PRAHALADRAI BHAGAT
LAWS(CAL)-1961-6-31
HIGH COURT OF CALCUTTA
Decided on June 13,1961

Ballygunge Real Property And Building Society Ltd Appellant
VERSUS
Prahaladrai Bhagat Respondents

JUDGEMENT

- (1.) This is a petition under Article 227 of the Constitution. On January 15, 1953 certain immovable properties belonging to the certificate debtor was sold by the Certificate Officer, Khas Mahal in execution of a certificate. On April 25, 1953 the certificate debtor applied under Section 23 of the Bengal Public Demands Recovery Act for setting aside the sale on the ground mentioned in their petition and inter alia on the ground of material irregularities in the certificate proceedings and in publishing and conducting the sale. The order sheet shows that the learned Judge fixed May 15, 1953 for hearing of the case. On May 5, 1953 the lawyer for the certificate debtor put in the notice fee with a written requisition asking for issue of notice to the auction purchaser and also mentioning in the requisition that the date of hearing had been fixed on May 15, 1953. On May 10, 1953 the Certificate Officer issued notice on the auction purchaser to show cause. On May 15, 1953 the auction purchaser filed his show cause petition. The order sheet shows that the Certificate Officer heard the lawyers for the parties. He directed that the matter will appear on May 18, 1953 for orders. On May 18, 1953 the Certificate Officer passed an order rejecting the petition for the setting aside of the sale. He considered the Application on its merits and held that the grounds for setting aside of the sale had not been made out on behalf of the certificate debtor. Complaint is made on behalf of the certificate debtor Petitioner before us that the proceedings before the Certificate Officer are in contravention of natural justice. The point arises in this way. In the body of the judgment delivered by the Certificate Officer on May 18, 1953, he stated. The last hearing date, i.e., May 15, "1953 was fixed for preliminary hearing to ascertain whether "this sale set aside application should be entertained as well as "for filing of any objection by the auction purchaser". Having regard to this observation Mr. Baksi contended that May 15, 1953 was really fixed for a preliminary hearing and no date was fixed for the final hearing of the matter and the Petitioner had no effective opportunity of adducing evidence in support of his case. Undoubtedly, his contention receives some support from the observations made by the Certificate Officer in his judgment. But on a careful consideration of the whole matter we have, with some reluctance, come to the conclusion that there has been no contravention of natural justice in this case. The order sheet discloses that the parties well knew that May 15, 1953 had been fixed for hearing of the case. The written requisition filed on behalf of the certificate debtor on May 5, 1953 also shows that the certificate debtor knew that the case had been fixed for hearing on May 15, 1953. It is plain enough that on May 15, 1953 the lawyers for both parties were heard at length on the merits of the case. On that date neither party asked for an adjournment of the hearing nor did they ask for any opportunity to adduce evidence in the ease. The order sheet does not show that the case had been fixed on May 15, 1953 for a preliminary hearing. The Certificate Officer, of course, thought that the case had been fixed for a preliminary hearing but the parties were under no mistake of fact nor is there any material to show that either party was misled as to the nature of the hearing which took place on May 15, 1953. We are satisfied that the case was finally heard to the knowledge of both parties on May 15, 1953.
(2.) There was an appeal from the order of the Certificate Officer, dated May 18, 1953. This order was set aside on appeal by the Additional Collector, 24 Parganas, who remanded the case to the Certificate Officer for hearing after giving the parties an opportunity to adduce evidence. From this order a revision petition was filed before the Commissioner, Presidency Division, who by his order, dated January 20, 1954, set aside the order of the Additional Collector, 24-Parganas, and restored the order of the Certificate Officer. The further revision petition filed before the Member, Board of Revenue, was dismissed. The learned Commissioner, Presidency Division, points out that the case was heard on the merits on May 15, 1953, and that neither party on that date asked for an adjournment of the case or for a further opportunity to adduce evidence. The order of the Commissioner, Presidency Division, as also the order of the Member, Board of Revenue, cannot possibly be challenged in a petition under Article 227 of the Constitution. They acted within their jurisdiction. There is no error of law on the face of the record nor is there any failure of natural justice so far as they are concerned.
(3.) In this connection Mr. Baksi contended that the Commissioner, Presidency Division, had only limited power to revise the order of the Additional Collector, 24-Parganas. He contended that the Commissioner, was exercising revisional jurisdiction and that he could set aside the order of the Additional Collector, 24-Parganas, only if the Additional Collector had exercised the jurisdiction which he did not possess or failed to exercise the jurisdiction which he possessed or if he had exercised jurisdiction with material illegality or irregularity. I am unable to accept this contention. It is true the Act distinguishes between appellate and revisional jurisdiction. Section 51 of the Bengal Public Demands Recovery Act, 1913, provides for appeals including an appeal to the Collector from an order made by the Certificate Officer. Section 52 of the Act bars second appeals. Section 53 provides for revisional jurisdiction. Under Section 53 the Commissioner may revise an order passed by a Collector and the Board of Revenue may revise an order passed by the Commissioner under the Act. In case where appeal lie the aggrieved party may appeal as a matter of right. The parties cannot claim revision as a matter of right. The revisional power is a discretionary power vested in the authorities specified under Section 53 of the Act. But the Revisional power is not limited in the manner suggested by Mr. Baksi. The provisions of Section 115 of the Code of Civil Procedure cannot be projected into Section 53 of the Bengal Public Demands Recovery Act. In the exercise of his revisional powers the Commissioner may examine the legality and propriety of the order which he has been called upon to revise. In the instant case the Commissioner having examined the legality and propriety of the order of the Additional Collector, 24-Parganas, came to the conclusion that that order should be set aside. I have come to the conclusion that the Commissioner, Presidency Division, had full power to pass the order which he made in this case.;


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