Salil Kumar Datta, J. -
(1.)These rules, arising under Articles 226 and 227 of the Constitution, have been referred by the Chief Justice to the Special Division Bench as at present constituted for disposal, under Rule 1 (ii), Chapter II of the Appellate Side Rules, primarily on the requisition of a Division Bench for considering inter alia the vires of Section 5-A of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954).
(2.)Mr. Ranjit Kumar Banerjee, learned Advocate appearing for the petitioners in C. R. Nos. 2190-93 of 1961, submitted, as the hearing commenced, that the present reference to the Special Bench was not a proper reference, as the Bench hearing these rules had taken a view different from the view taken earlier by Division Bench in Ambujakhya Mukherjee v. State of West Bengal, TLR (1966) 1 Cal 495 and accordingly the reference should have been made to a Full Bench. He referred to the decision in Mahadeolal Kanodia v. Administrator General of West Bengal, in which it was observed:
"If one thing is more necessary in law than any other thing, it is the quality of certainty. ......... If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. ......... It is the uniform practice in all High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. ............".
The same view was taken in Jaisri Sahu v. Rajdewan Dubey.
(3.)Rules of the High Court at Calcutta, Appellate Side, inter alia provided in Chapter VII, Rule 1 that whenever one Division Bench shall differ from another Division Bench upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench, unless the point has been decided by a pre-Constitution decision of the Judicial Committee of the Privy Council, or of the Federal Court of India or of the Supreme Court of India. If therefore, the Division Bench, which heard the rules DOW before us, differed on a point of law or usage having the force of law from the decision of the Division Bench which decided Ambujakhya's case, ILR (1966) 1 Cal 495, it was incumbent on the latter Bench to refer the matters before it to a Full Bench for decision. It would however appear that the said Division Bench did not differ either expressly or impliedly from the earlier decision referred to above. Certain aspects on the points at issue were urged at the hearing of these rules which were not placed before the earlier Division Bench, including a subsequent decision of the Supreme Court. As the points raised are of constitutional importance involving also interpretation of a "troublesome" section of the Act, the Bench itself exercised its power under Chapter II R. 1 (ii) of the said Rules, which inter alia provide as follows:--
"..... on the requisition of any Division Bench, or whenever he thinks fit the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for hearing of any particular appeal or any particular question of law arising in an appeal, or of any other matter."
As we have noted above there was no difference of view between the two Division Benches on any point of law or usage having force of law, but in view of the contentions since raised, which in that form were not raised in the earlier Bench, the referring Bench felt on account of the constitutional importance of the question, that the matter should be reconsidered by a Special Division Bench and reference was made accordingly. Occasion for reference to a Full Bench accordingly did not arise in the circumstances.