Calcutta High Court (Appellete Side)
Tapan Kumar Misra And Another vs Additional District Magistrate (La) on 30 August, 2018
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 Sl. No.2.
August 30, 2018. ( Assigned ) SG CO 734 of 2018 with CO 445 of 2017 Tapan Kumar Misra and another
-versus-
Additional District Magistrate (LA), Malda and another with Ruma Sarkar (Mandal)
-versus-
Additional District Magistrate (LA), Malda and others Ms Sharda Parmar Mr Gour Baran Sau ... for the petitioners in CO 734 of 2018 & OP Nos.2 & 3 in CO 445 of 2017.
Mr Partha Pratim Roy Mr Dyutiman Banerjee ... for the petitioner in CO 445 of 2017 & opposite parties in CO 734 of 2018.
These two petitions arise out of a common order passed on a reference under Section 3H(4) of the National Highways Act, 1956.
The reference was made by the Additional District Magistrate (LA) Malda, who is the designated authority under the Act of 1956, by a writing of September 4, 2015. There were two sets of claimants for the compensation for the same plot of land, one of them was Ruma Sarkar (Mandal) and the other one was Tapan Kumar Misra and Krishna Jha.
2The particulars of the dispute were set out in the order of reference by the concerned Additional District Magistrate. Ruma Sarkar claimed that she was entitled to the compensation on the ground that the recorded raiyat Phanindranath Sukul died while in possession of the land on December 14, 1983 and as Phanindranath Sukul did not have any issue and his wife pre- deceased him, the land devolved upon Phanindranath's brother Bijoy and two sisters Chintamoni and Avay Tarini. After the death of Bijoy, his share devolved upon his son Ajay and three daughters Raghumoni, Aparajita and Anima. On the death of Ajay, his share in the land devolved on Dhira Sukul and others.
It was the case of Ruma Sarkar that all the persons entitled to a share in the relevant land other than Bijoy's daughters Raghumoni and Aparajita had engaged one Netai Mandal as their common power-of-attorney-holder and Netai transferred the land to Ruma Sarkar. On the other hand, the rival claimants alleged that Phanindranath Sukul had executed a power-of-attorney in favour of one Prabhat Kumar Roy and Prabhat Kumar Roy transferred the land in favour of Sunil Majumdar, Sudhir Majumdar and Hablu Sk. The rival claimants, Tapan Kumar Misra and Krishna Jha, claimed to have purchased the land from Sunil Majumdar and Hablu Sk.
The reference, in terms of Section 3H(4) of the Act of 1956 was made to the principal civil court of original jurisdiction within the local limits of whose jurisdiction the land was situated. Accordingly, the District Judge, Malda was called upon to answer the reference.
3It is the common grievance of both sets of parties that the District Judge, Malda failed to appreciate the scope of her authority under Section 3H(4) of the Act of 1956 and proceeded to adjudicate the matter as if it was an original case that had been brought to the court. In such context, the petitioner in CO 445 of 2017 relies on a judgment reported at 7 Indian Cases 10 (Mahindra Roy v Srish Tewari) to the effect that Section 30 of the Land Acquisition Act, 1894 does not contemplate any decision by the special court unless a reference in such regard is made by the collector. The parties here submit that Section 3H(4) of the 1956 Act is in pari materia with Section 30 of the Act of 1894.
As far as the petitoner in CO 445 of 2017 is concerned, it is her case that Phanindranath Sukul died prior to his constituted attorney Prabhat Kumar Roy effecting the transfer of the land in favour of Sunil Majumdar, Sudhir Majumdar and Hablu Sk. In such regard, the petitioner in CO 445 of 2017 had produced a copy of the death certificate Phanindranath Sukul.
The other set of petitioners claims that the death certificate of Phanindranath Sukul produced by the petitioner in CO 445 of 2017 was forged and fabricated. However, it does not appear that the other set of petitioners produced any death certificate of Phanindranath Sukul to demonstrate that Prabhat Roy had successfully passed the land to Sunil Majumdar, Sudhir Majumdar and Hablu Sk for the petitioners in CO 734 of 2018 to be entitled to the compensation in respect of the relevant land.
It appears that the District Judge, Malda proceeded on a completely erroneous basis, first in overlooking the fact that the power-of-attorney conferred by Phanindranath Sukul in favour of 4 Prabhat Kumar Roy contained an express clause empowering and authorising the attorney to transfer the land owned by the principal. Secondly, the District Judge, Malda went on a wild goose chase that could not have been undertaken in course of the reference. The reference did not call upon the special court to ascertain whether the consideration for the transfer of land had been received by the heirs of Phanindranath Sukul. Yet, the concerned District Judge thought it incumbent on the special court to make such inquiry.
It is evident that the District Judge, Malda misdirected herself and misconducted the proceedings by taking into account irrelevant considerations which were not germane in the context of the reference. Unlike in an ordinary suit where it is possible for a third case to be discerned, in a reference to a special court, the court is bound by the four corners of the reference and cannot travel beyond it.
Since it is the common case of both sets of petitioners that the District Judge, Malda erred in the manner of adjudication that is reflected in the order impugned dated June 10, 2016, such order is set aside in its entirety and the matter is remanded for a fresh consideration in accordance with law by the District Judge, Malda. The adjudication that will now be made will be strictly in terms of the reference and the question as posed in the reference by the Additional District Magistrate (LA) Malda in the writing of September 4, 2015.
CO 734 of 2018 and CO 445 of 2017 are disposed of as above, but without any order as to costs.
5( Sanjib Banerjee, J. )