State of West Bengal and Others v. Ashit Nath Das and Others

although the file had no number as it appears that rule was not issued and the petition was not even numbered and it is this impugned judgment , _ which is challenged by the State of West Bengal in this appeal in special leave. In this order the learned Judge has treated this petition under Art. 227 as a revisional application of the petitioner challenging the order passed by Additional District Judge on 25.2.86 which has been H referred to above. -y 1 STATE OF WEST BENGAL v.A.N. DAS {OZA, J.l 823 The learned Judge has reproduced the contention advanced by A the counsel for the respondents that the appellate court i.e. 9th Addi­ tional District Judge should h~ve disposed of the appeal in accordance with the opinion of the Advocate General and about this contention the learned Judge of the High Court has made the following observa­ tion in his impugned judgment: "It is most regret;\ble to note the stand taken by the State in the matter in disregarding the written opinion given by no loss person that the Advocate General of West Bengal showing such scant respect or no respect at all to such opinion and I hudder to think that if such disrespect is shown to the opinion of the Advocate General of West C Bengal what should be the position of the Advocate General before the court and also to the State Govern­ ment''. However the learned Jµdge did not agree that the Additional -~ District Judge should have decided in accordance with the opinion of D the Advocate General and we are happy that the 9th Additional District Judge, Alipore did not accede to such a prayer but after the above quoted observation the learned Judge has decided matters which were not raised before the High Court in the petition under Art. i' 227. No ground about the validity of 44(2a) proceedings on the basis of Amending Act not getting the assent of President was raised. When E the case was fixed for 25th April Friday next directing the Advocate General to remain present, there-after it was never heard and it only ultimately resulted in the impugned order. It is not contended even by the learned counsel for the respon- nts that any additional grounds were urged in the petition under f rt. 227 inviting the Court to consider the matter as to the effect of the Amendment Act, 1969 not receiving the assent of the President and the subsequent Amendment Act receiving the assent of the President and the effect thereto. Unfortunately the learned Judge of the High Court lost sight of the fact that the only grievance against the order of _ _,,. the Additional District Judge was that he refused to decide the appeal G . \. in accordance with the opinion of the Advocate General and that he A did not give an early date of hearing. This question about the suo moto proceedings under Sec. 44(2a) and the validity of the Amendment Act and its effect were neither considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of but it appears that the H A learned Judge of the High Court after examining these legal aspects ·y­ without having been raised before it decided the matter so that neither ~ appeal remains nor any proceedings remain and in doing so the learned Judge went on without their being proper grounds before it and without giving an opportunity to the present appellant State of B West Bengal to have their say in the matter. Under these circum­ stances it is apparent that the order passed by the learned Judge of the . High Court dated 20.5.87 is completely without jurisdiction and on '(' matters which were not before it and also without giving adequate ~­ opportunity of hearing and therefore the order deserves to be quashed and is quashed. Apparently therefore the appeal filed by the respon, dent before the 9th Additional District Judge which was pending whe~ C the learned Judge of the High Court passed the impugned order re.1 vives and it could not be said that the appeal is disposed of as observed ~­ by the learned Judge of the High Court. Consequently it is directed that the appeal which was pending before the 9th Additional District Judge Alipore shall be heard by the learned Additional District Judge in accordance with law. The learned Additional District Judge while D hearing and disposing of the appeal shall not be bound or obsessed by "-­ any observation made by the learned Judge in the impugned order. In the circumstances of the case parties are directed to bear their own costs. N.V.K. Appeal allowed. 'f