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Citation Codes
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Case Number
Advocates
  • Kripasindhu Hait
  • S.N.Ghorai
  • S.B.Das
  • Madan Mohan Saha
Judges
  • Amal Krishna De, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Kripasindhu Hait
  • S.N.Ghorai
  • S.B.Das
  • Madan Mohan Saha
Judges
  • Amal Krishna De, J.
Acts
See more information ...
Smart Summary

Summary of the Opinion

Factual and Procedural Background

This is an application under Article 227 of the Constitution of India challenging the learned Munsif's order No. 24 dated 19.2.74. The applicant (petitioner) filed an application for pre-emption under section 8 of the West Bengal Land Reforms Act in the Court of the Munsif at Tamluk. The factual matrix, as stated in the opinion, is:

  • Opposite parties Nos. 3 to 10 transferred certain land to opposite party No. 1 on 31.10.1972.
  • Opposite party No. 1 sold a portion of that land to his son, opposite party No. 2. The petitioner was not served notice of the first transfer and became aware of the second transfer when opposite party No. 2 began collecting building materials to construct pucca structures.
  • The petitioner filed the application for pre-emption (dates mentioned include filing on 26.5.73 for pre-emption and an application for temporary injunction filed on 21.6.73 to restrain opposite parties Nos. 1 and 2 from changing the character of the land and from raising any structure).
  • Opposite party No. 1 filed another petition for injunction on 11.9.73 (adding opposite parties Nos. 2(ka), 2(kha) and 2(ga)). The learned Munsif rejected that second petition by order No. 12 dated 14.9.73 and later rejected the first petition (filed 21.6.73) by order No. 24 dated 19.2.74.
  • The petitioner moved the High Court under Article 227 challenging order No. 24 dated 19.2.74.

Legal Issues Presented

  1. Whether the expression "Munsif having territorial jurisdiction" in section 8 of the West Bengal Land Reforms Act (as amended in 1972) refers to a civil court (a court) or to a persona designata (an officer in an individual capacity).
  2. If the Munsif is to be treated as a civil court when hearing an application under section 8, whether the Munsif has the powers under section 151 of the Code of Civil Procedure to grant a temporary injunction in respect of such application.
  3. Whether an injunction granted in favour of the petitioner against opposite parties Nos. 1 and 2 would be efficacious or rendered nugatory by the earlier refusal of the petitioner's injunction claim against opposite parties Nos. 2(ka) to 2(ga).

Arguments of the Parties

Applicant / Petitioner's Arguments (as advanced by Mr. S. N. Ghorai)

  • The application for pre-emption under section 8 was filed before a Munsif (a civil court) after the West Bengal Land Reforms (Amendment) Act, 1972 changed the forum from a Revenue Officer to the Munsif having territorial jurisdiction; hence the Munsif has all powers under the Code of Civil Procedure (including section 151) to grant injunctions.
  • Relied on Ram Chandra Agarwal v. The State of Uttar Pradesh (A.I.R. 1966 S.C. 1888) to support the proposition that where a special or local statute refers to a constituted court the reference enlarges the ordinary jurisdiction of that court and is not to a persona designata.
  • Relied on Brajendra Kumar v. Gosta Dolui (reported in 64 CWN 1062) where a Division Bench held that a Munsif exercising certain powers under the West Bengal Land Reforms Act was a 'Court' and had powers under the Code of Civil Procedure (including remanding to a Revenue Officer as a Court).

Opposite Parties' Arguments (as advanced by Mr. Saha)

  • The application under section 8 before the learned Munsif is not a proceeding before a Civil Court but before a persona designata; reliance was placed on Devianayagam Pillai v. P.T.S. Diewn Mohideen Howther (AIR 1923 Madras 169) where similar wording ("Subordinate Judge having jurisdiction") had been held to refer to a persona designata rather than to the court in its ordinary capacity.
  • The learned Munsif refused to grant injunctions on the grounds (i) that he had no power under the West Bengal Land Reforms Act to grant an injunction under section 151 CPC and (ii) that an injunction against opposite parties Nos. 1 and 2 would not be effective because the petitioner's claim against opposite parties Nos. 2(ka) to 2(ga) had already been refused and not challenged.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ram Chandra Agarwal v. The State of Uttar Pradesh, A.I.R. 1966 S.C. 1888 That where a special or local law refers to a constituted court it enlarges the ordinary jurisdiction of such court and is not a reference to a persona designata. The court considered the decision but observed it was not directly on all fours with the present case; it was relied on by the petitioner but did not decide the present question.
Brajendra Kumar v. Gosta Dolui (reported in 64 CWN 1062) Held that a Munsif exercising powers under the West Bengal Land Reforms Act (section 19 in that case) was a 'Court' and could exercise powers under the Code of Civil Procedure. The court applied this authority to support the conclusion that the expression "Munsif having territorial jurisdiction" in section 8 refers to a civil court and not to a persona designata.
Devianayagam Pillai v. P.T.S. Diewn Mohideen Howther, AIR 1923 Madras 169 Interpreted wording like "Subordinate Judge having jurisdiction" as referring to a persona designata (not the court in its ordinary capacity) in the context of the Madras District Municipalities Act. The opposite party relied on this decision to argue that the Munsif under section 8 was a persona designata; the court considered the authority but rejected the contention in the present statutory context.
Sm. Indira v. State of West Bengal, AIR 1967 Cal 469 Principle that where specific provisions in a statute or Code exist forbidding a relief, the court should not seek to grant that relief by invoking its inherent power under section 151 CPC. The court cited this authority (along with Monoharlal) for the proposition that section 151 should not be used to override specific statutory provisions; since there were no specific prohibitions in the Act, the inherent power could be invoked.
Monoharlal v. Rai Bahadur, AIR 1962 S.C. 527 Similar principle as in Sm. Indira regarding limits on resort to section 151 CPC where specific statutory provisions exist. The court invoked this authority in support of the general rule that section 151 cannot be used where specific provisions forbid the relief; applied here to conclude that, absent a statutory bar, the Munsif may exercise inherent powers under section 151.
Decision referred to in 65 CWN p. 597 Referenced by the learned Munsif as supporting the opposite party's contention (specific subject not described in this opinion). The High Court observed that the decision referred to in 65 CWN p. 597 did not deal with the subject arising in this case and was not relevant.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps:

  1. Interpretation of "Munsif having territorial jurisdiction" in section 8:

    The court examined whether the phrase refers to the civil court as an institution or to a persona designata (the presiding officer in his individual capacity). The petitioner relied on authorities indicating that when a special statute refers to a constituted court it enlarges the court's ordinary jurisdiction. The court compared authorities and concluded—on a reading of sections 8 and 9 of the Act and applying the earlier Division Bench decision reported in 64 CWN 1062—that the expression refers to a civil court and not to a persona designata. Consequently, the argument that the Munsif was a persona designata was rejected.

  2. Whether the Munsif has powers under section 151 CPC to grant injunction:

    The court reviewed the settled principle that section 151 (the inherent powers provision) cannot be used to grant relief where specific statutory provisions or provisions in the Code prohibit such relief (citing Sm. Indira and Monoharlal). However, where there is no specific bar or provision dealing with the relief, the court may exercise inherent powers under section 151 for ends of justice. The court found that the West Bengal Land Reforms Act contains no specific provision empowering or forbidding the learned Munsif, while dealing with an application under section 8, to grant an injunction. Section 151 does not create new powers but recalls inherent powers. Therefore, if the Munsif is acting as a civil court under section 8, he was competent to consider an application for temporary injunction under section 151, and he should have considered the petitioner's prayer on its merits instead of rejecting it solely on the ground that he lacked power under the Act.

  3. Whether an injunction would be effective in the light of other transfers and prior refusals:

    The court observed records indicate that opposite party No. 1 transferred part to opposite party No. 2 and that later some portions were transferred to opposite parties Nos. 2(ka) to 2(ga). Given these transfers, the court directed that the learned Munsif must examine the records to determine whether, as of 21.6.73, any portion of the land sought to be pre-empted remained with opposite party No. 1 or opposite party No. 2. Practical directions were given: if no relevant portion remained with opposite party No. 1 or No. 2 on that date, the learned Munsif should reject the injunction application; if some portion did remain, the learned Munsif should consider the injunction application on its merits.

Holding and Implications

Rule made absolute; the order No. 24 dated 19.2.74 of the learned Munsif is set aside.

Direct effects and orders made by the court:

  • The court set aside the learned Munsif's order No. 24 dated 19.2.74.
  • The learned Munsif is directed to reconsider the petitioner's application filed on 21.6.1973 in accordance with the directions in this judgment (i.e., determine whether any portion of the land remained with opposite parties Nos. 1 or 2 as of 21.6.73 and, if so, consider the injunction application on its merits; if not, reject the injunction).
  • There will be no order as to costs.
  • The court directed that applications under section 8 of the Act should be disposed of quickly.

The opinion does not discuss broader legal implications beyond these direct effects on the parties and procedural directions; it confines itself to interpretation of the statutory phrase, the availability of inherent powers under section 151 in the circumstances, and remand with specific directions to the learned Munsif.

Show full summary ...

    Behari Lal Santaia v. Bishnupada Pattanayak And Others

    1. This application is under Article 227 of the Constitution of India by the applicant under section 8 of the West Bengal Land Reforms Act in the first court of Munsif at Tamluk. He made the application seeking pre-emption of a transfer made by opposite parties Nos. 3 to 10 to opposite party No. 1 on 31.10.72 Opposite party No. 1 sold a portion of that land to his son, opposite party No. 2 petitioner, who was not served with the notice of the first transfer, came to know of it the second transfer by the opposite party No. 1 to opposite party No. 2 was made, when opposite party No. 2 started collecting building materials on the land with a view to constructing pucca structures. The petitioner filed his application for pre-emption on 26.5.73 against opposite parties Nos. 1 to 10 on 21.6.73 the petitioner filed an application for a temporary injunction to restrain opposite parties Nos. 1 and 2 from changing the character of the land and from raising any structure on it. To that the opposite party No. 1 filed another petition for injunction on 11.9.73 making the same prayer against opposite parties Nos. 2(ka), 2(kha) and 2(ga) after having added them in his petition. The learned Munsif has rejected this second petition by his order No. 12 dated 14.9.73 and rejected the first petition filed on 21.6.73, by his order No. 24 dated 19.2.74 The petitioner has moved this court against this order No. 24 dated 19.2.74 filing this application under Article 227 of the Constitution.

    2. The learned Munsif before whom the application for pre-emption has been filed has refused the prayer for temporary injunction made on 11.9.73 on the ground that he has no power under the West Bengal Land Reforms Act to grant an injunction under section 151 of the Code of Civil Procedure and secondly, on the ground that order of injunction, if any, granted against opposite parties Nos. 1 and 2 would not be of any use as the petitioner's application for an order of injunction against opposite parties Nos. 2(ka), 2(kha) and 2(ga) has already been refused on 14.9.73 and has not been challenged in any superior court.

    3. Mr. S.N Ghorai, learned Advocate appearing for the petitioner, submits that the application for pre-emption has been filed before a Munsif and he has as such Munsif, all the powers under the Code of Civil Procedure including the powers under section 151 of the Code of Civil Procedure to grant injunction. Before the West Bengal Land Reforms (Amendment) Act, 1972 came into force, application for pre-emption under section 8 of the West Bengal Land Reforms Act to be hereafter called the Act, was to be filed before the Revenue Officer specially empowered by the State Government in that behalf. By the 1972 amendment the applications are now required to be filed before the Munsif having territorial jurisdiction. The present application was filed after the 1972 amendment came into force. It has been filed before a Munsif i.e a Civil Court, he has all the powers under the Code of Civil Procedure. In support of his contention he has placed reliance on the case of Ram Chandra Agarwal v. The State of Uttar pradesh and another in A.I.R 1966 S.C 1888. In that case the question that fell to be determined was whether a reference made to a civil court of competent jurisdiction under section 146 of the Code of Criminal Procedure was a civil proceeding. Mudholkar, J. speaking for the court held that the said reference was a civil proceeding observing as follows:

    “When a special or local law provides for an adjudication to be made by a constituted court—that is, by a court not created by a special or local law but to an existing court—it in fact enlarges the ordinary jurisdiction of such a court. Thus where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer of that court, the reference cannot be said to be to a persona designata.”

    4. The question is whether the expression “Munsif having territorial jurisdiction” in section 8, as amended in 1972 refers to a court or to a persona designata. The meaning given to the expression “persona designata” in Osborn's Concise Law Dictionary, 4th Edition p. 263 is a “person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character”.

    5. Section 8 of the Act is not that the application is to be made to a civil court but to a learned Munsif having territorial jurisdiction. The decision in A.I.R 1966 SC 1888 is not thus on all fours with the present case.

    6. Mr. Ghorai next submits that section 8 providing for filing the application before a Munsif having territorial jurisdiction makes it clear that it was to be filed before a civil court and not to the judge presiding over the civil court. He also refers to the case of Brajendra Kumar… v. Gosta Dolui…Opposite Party., reported in 64 CWN 1062 where a Division Bench of this court held that a Munsif exercising appellate powers under section 19 of the West Bengal Land Reforms Act, 1955 has jurisdiction to remand a case to the Revenue Officer as a ‘Court’ having powers under the Code of Civil Procedure. The contention made in that case before the Division Bench was that the learned Munsif exercising appellate powers was not a civil court, but was a mere persona designata. That contention was not entertained by Banerjee, J. observing.

    “The jurisdiction exercised by the learned Munsif under section 19 was no part of his ordinary jurisdiction. Therefore, the jurisdiction is either a special jurisdiction conferred on him in his capacity as an ordinary court of the country or is a jurisdiction conferred on him as a person or a named officer not in his capacity as an ordinary court of the country”.

    7. The learned Judge referred to the provision of Section 21 of the Act and then concluded that the proceeding before the learned Munsif under section 19 of the Act was a proceeding before the Munsif as a Civil Court and not as a persona designata.

    8. Mr. Saha, appearing for the opposite party, referred to the case of Mr. Devianayagam Pillai v. P.T.S Diewn Mohideen Howther, reported in AIR 1923 Madras 169 and submits that the application before the learned Munsif under section 8 is not before a Civil Court. In that case an application, under rule 1 made under the Madras District Municipalities Act challenging an election, was filed before a Subordinate Judge and his order was challenged in a revisional application before the High Court. Devadoes, J. took the view that the subordinate Judge in an application under rule 1 of the Madras District Municipality Act was acting merely as a persona designata and as such was not subject to the revisional jurisdiction of the High Court. The expression used in that Rule was “Subordinate Judge having jurisdiction”. The words “having jurisdiction” were interpreted as referring to the territorial jurisdiction over the municipalities to fill up vacancies in which the ejections are held.

    9. Section 9(6) of the Act provided for an appeal to the District Judge against an order of the learned Munsif made under Section 8.

    10. On a reading of the provisions of section 8 and section 9 of the Act and applying the decision reported in 64 CWN 1062, it appears to me that the expression “Munsif having territorial jurisdiction” in section 8 of the Act refers to a civil court and not to a persona designata. The contention made by Mr. Saha is not entertainable.

    11. The next question for consideration is whether the learned Munsif, if acting as a civil court under section 8 has the powers under section 151 of the Code to grant injunction. The law is well settled that if there are any specific provisions in the Code against granting of a prayer made before a court, those should not be passed taking recourse to section 151 sec. Sm. Indira v. State of West Bengal, AIR 1967 Cal 469 and Monoharlal v. Rai Bahadur in AIR 1962 SC 527. But if there is no such bar and there are no specific provisions for granting the prayers the court by exercise of its inherent powers for ends of justice is to grant the relief. In this Act there are no specific provisions empowering the learned Munsif, while dealing with an application under section 8, to grant injunction. Section 151 of the Code vests no new powers on the court. It only reminds the court of its inherent powers. When for ends of justice it becomes necessary for a court to grant a particular relief asked for by the parties, it exercises its inherent power under section 151 to grant if there are no specific provisions in the Act forbidding exercise of such powers. In this view of the matter, the learned Munsif should have considered the prayer for temporary injunction on merits and should not have rejected it on the view that he was not empowered to consider it Under the Act.

    12. The learned Munsif has referred to a case referred to in 65 CWN p. 597 observing that it supports the contention made by the opposite party before him. That decision does not refer to the subject arising in this case and has no relevance. The other point which is urged is that the learned Munsif has been wrong in observing that an order of injunction granted in favour of the petitioner against the opposite parties Nos. 1 and 2 will not be of any effect as the said prayer against opposite parties Nos. 2(ka), 2(ga) had already been refused without any challenge of that order on any higher court.

    13. It is however, pointed out from the records that opposite party No. 1 transferred a part of his land to opposite party No. 2 and that opposite party No. 2 and opposite party No. 1 had later transferred some portions of the remainder to opposite parties Nos. 2(ka) to 2(ga). If these facts are borne out by the records, there is still a portion of the land with opposite party No. 1 and possibly also with opposite party No. 2. The learned Munsif is therefore required to look into the records and see whether there still remains with opposite party No. 1 and or opposite party No. 2 any portion of the land sought to be pre-empted in this application. If after examining the records he finds that there are no lands sought to be pre-empted with either opposite party No. 1 or opposite party No. 2 on 21.6.73, he will reject the application for injunction. If however, he finds otherwise, he will consider the application for injunction on merits.

    14. In view of the above conclusions, I make the Rule absolute, set aside the order No. 24 dated 19.2.74 of the learned Munsif and direct that he considers the application by the petitioner filed on 21.6.1973 in accordance with the directions in this judgment.

    15. There will be no order for costs.

    16. The applications under section 8 of the Act should be disposed of quickly.

    Rule made absolute.

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    Comments

    Behari Lal Santaia v. Bishnupada Pattanayak And Others
    (Aug 30, 1974)