- (1.) The question which arises for consideration in this application is as to whether the respondent No. 2, Bhag Chas Officer acted within bis jurisdiction in issuing the impugned notice dated 30.8.95 as contained in Annexure 'F' to the writ application. According to the petitioner, in the years 1992 and 1993, proceedings were initiated by the respondent No. 9 for recording his name as bargadar. Although the said proceedings ended in favour of the petitioners but the records had been stolen. The petitioners contend that because of local politics the respondent No. 2 proposed to record the name of respondent No. 9 at bargadar and issued a certificate to that effect in his name.
(2.) Mr. Dutta, learned Counsel appearing on behalf of the petitioners submits that keeping in view the fact that various proceedings had been going on by and between the petitioner and the respondent No. 9, including a suit, wherein an order of injunction has been passed, the impugned notice must be held to have been issued wholly without jurisdiction. According to the learned Counsel, as valid orders have been passed in the years 1992 and 1993 by a competent Revenue Officer in terms of Section 51 of the West Bengal Land Reforms Act, the question of issuance of any notice by the respondent No 2 in terms of Section 18(1) thereof does not arise. As indicated hereinbefore, no document has been annexed by the petitioners to show that any order had been passed in their favour and against the respondent No. 9 on the ground that the records had been stolen, although the petitioners have annexed a copy of the searching slip dated 16.4.93 which is contained in Annexure 'B' to the writ application. In my opinion, the said question should be raised before the respondent No.2. There cannot be any doubt that in a given case this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can entertain a writ application where a notice has been issued wholly, without jurisdiction, but as the case at hand involves certain questions of fact, it ts desirable that the jurisdictional facts raised by the petitioners in this application, should also be decided at the first instance by the respondent No. 2 himself. There cannot be any doubt whatsoever that if the name of the respondent No. 9 had not bees recorded as bargadar, and he had lost in the earlier proceedings, the question of issuing any notice in terms of Section 18(1) of the Act would not arise, but the fact as to whether such proceedings had ended in favour of the petitioners and against the respondent No. 9, must be verified by the respondent No. 2. In Management of Express Newspapers (Private) Ltd. v. The Workers & Ors. reported in AIR 1963 SC 569 , the Apex Court held:- "The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be S proper for the High Court to adopt such a course unless the ends of Justice seem to make is necessary to do so Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making then observations, we do not propose to lay down any fixed or inflexible rule ; whether or not even the preliminary facts should be tried by High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the trial Judge proceeded to deal with the question as to whether the action of the appellant was a closure or a lockout."
(3.) Similar observation has been made by the Apex Court in State of Uttar Pradesh v. Brahm Dutt Sharma & Anr., reported in AIR 1987 SC 943 , in the following terms:- "The High Court was not justified in quashing the shew came notice. When a show cause notice is issued to a Government servant under a statutory provision calling upon him to show cause, ordinarily the Government servant must place bis case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the Government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. the High Court in our opinion ought not to have interfered with the show cause notice." Keeping in view the aforementioned decisions and in view of the peculiar facts of this case, I am of the opinion that the petitioners may raise all the contentions raised in this application before the respondent No. 2. It may be placed on record that it appears that the petitioners have already filed their objection before the respondent No. 2, which is contained in Annexure 'G' to the writ application. The said objection may be considered on its own merits by the respondent No. 2 after giving an opportunity of hearing to the petitioners as alto the respondent No. 9, and the said authority shall pass an appropriate order after considering all relevant facts and after requisitioning the previous records, if any. The application is thus disposed of.;