KAMALA DEBI Vs. STATE OF WEST BENGAL
LAWS(CAL)-1961-1-2
HIGH COURT OF CALCUTTA
Decided on January 09,1961

KAMALA DEBI Appellant
VERSUS
STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) THE question that arises in this Civil Revision case is regarding the powers of a Tribunal under section 5a of the West Bengal Estates Acquisition Act. The appellate authority, the District Judge, has held that the Code of Civil Procedure not being applicable to proceedings and appeals under section 5a, sub-section (6), the tribunal has no authority to grant injunction in favour of any of the parties.
(2.) THE facts are simple. There was a transfer of the disputed properties and that transfer has been challenged by the State under section 5a of the Estates Acquisition Act. The trial Tribunal has set aside the transaction. Against that an appeal has been filed under the provisions of that Act. The question is whether pending the hearing of the appeal the Appellate Tribunal has powers to stay the operation of the order of the trial authority. The Appellate Tribunal has put it in the form as to whether the Appellate Tribunal has power under Order 39 of the Code relating to injunction. I am afraid, that is not the question here; the question is whether the appellate Tribunal has powers to stay the operation of the order of the trial authority. Mr. Laik on behalf of the petitioner says that the District Judge as a Tribunal has such power. According to him, the power is to be found in Rule 3b. Rule 3b is as follows:- "the procedure for disposal of appeal under sub-section (2) of section 11 as laid down in rule 9 shall, mutatis mutandis, apply to the procedure for disposal of appeals under sub-section (6) of section 5a. " Section 11 of the Estates Acquisition Act is a section relating to penalty for non-compliance of Collector's order tinder section 10 of that Act. Section 11 (2) provides for an appeal and says, the special Judge shall dispose of the appeal according to the prescribed procedure. That prescribed procedure is rule 9 of the Rules. Sub-section (1) provides for fine as stated above. Coming new to the Rules, rule 9 is as follows :- "the procedure for disposal of appeals under sub-section (2) of section 11 shall be as follows. " (d) "the Special Judge may stay further proceedings in respect of recovery of fines under the order of the Collector until the disposal of the appeal on sufficient grounds being shown. "
(3.) IT cannot, therefore, be disputed that in a proceeding under section 11 (2) the Special Judge has the power to stay the operation of the order of the Collector till the disposal of the appeal. According to Mr. Laik, this rule, via rule 9, sub-rule (d) applies mutatis mutandis for disposal of appeal under sub-section (6), section 5a. There is no dispute that the appeal was under sub-section (6) of section 5a. According to Mr. Sen, as there is no question of fine under section 5a, rule 9, sub-rule (d) will not apply at all. According to Mr. Laik, the rule applies mutatis mutandis. The meaning of the words 'mutatis mutandis' is "with necessary changes in point of detail. " The question therefore is whether because of the phrase 'mutatis mutandis' the word 'possession can be substituted in place of the word 'fine' in Rule 9 (d ). In order to consider that, the first thing we have to consider is that the Rule 3b says that the entire rule 9 would apply. If they had the slightest intention that clause (d) would not apply, they could have said that rule 9 except clause (d) would apply. Therefore, the intention of the rule making authority was that the entire rule 9 including clause (d) would apply. If we now apply clause (d), we are faced with the position that there is no question of recovery of fines in an appeal under section 5a, sub-section (6 ). The substance of the aforesaid rule is that further proceedings for recovery of "fine" can be stayed until the disposal of the appeal on sufficient grounds being shown. As section 11 relates to fine, the further proceedings will naturally be with respect to recovery of fine. If we give some meaning to the words 'mutatis mutandis' the change in detail would be that instead of the word 'fine' we have to read the word 'possession' because section 5a relates to recovery of possession. The principle and essence of the order is to give the appellate authority power to stay operation of the order of the trial authority pending the hearing of the appeal. The only question of detail is: what is to be stayed? In a case under section 11 naturally it would be fine; whereas in a case under section 5a it would be recovery of possession. This is certainly a matter which comes within the words "necessary changes in matters of detail. " I therefore have no hesitation in accepting the argument of. Mr. Laik that the appellate authority has been given powers under the statute to stay recovery of possession.;


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