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Shah Keshavlal Motichand Vs. Assistant Judge, Junagadh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 37 of 1957
Judge
Reported inAIR1959Bom194; (1959)61BOMLR124; ILR1958Bom1282
ActsDebt Law; Saurashtra Agricultural Debtors Relief Act, 1952 - Sections 2(3), 4, 4(1), 5, 5(1), 12(2), 13, 41(2), 44 and 54; Constitution of India - Articles 226 and 227; Saurashtra District and Subordinate Civil Courts Ordinance, 1948 - Sections 17 and 19; Bombay Agricultural Debtors Relief Act, 1939 - Sections 4, 4(3), 7, 7(1), 8, 9, 13, 14, 15, 17, 61, 62(1), 63, 66, 67-A, 75 and 83; Indian Penal Code (IPC), 1860 - Sections 193 and 228; Bombay Agricultural Debtors Relief (Amendment) Act, 1947 - Sections 46; Code of Civil Procedure (CPC), 1908 - Sections 15(1), 18, 46 and 115
AppellantShah Keshavlal Motichand
RespondentAssistant Judge, Junagadh and ors.
Appellant AdvocateV.G. Hathi, Adv.
Respondent AdvocateB.K. Mehta and ;K.C. Patel, Advs.
Excerpt:
saurashtra agricultural debtors' relief act (xxiii of 1952), sections 5, 2(3), 41(2), 44, 54 - saurashtra district and subordinate civil courts ordinance, 1948 (xi of 1948), sections 17, 19 -- bombay agricultural debtors relief act (bom. xxviii of 1939), sections 4, 7, 8, 15 -- bombay agricultural debtors relief act (bom. xxviii of 1947), section 46 -- whether board constituted under section 5 of saurashtra act xxiii of 1952 a court -- assistant judge under saurashtra ordinance empowered and invested with powers to entertain appeals from decrees or orders of 'subordinate courts' transferred to him by district judge -- appeal filed in district court against award made by board constituted under saurashtra act transferred to assistant judge by district judge -- whether assistant judge had.....d.v. vyas, j.1. this is petition under article 226 or under article 227 of the constitution of india, and it is filed by shah keshavlal motichand. the relief which the petitioner has prayed for in this petition is that the judgment of the assistant judge in civil appeal no. 237 of 1956, which is pronounced on the 19th january 1957, be quashed. a further relief which is sought by the petitioner is that the order passed by the board reducing his (petitioner's) dues to rs. 1954-8-4- for secured debts and to rs. 1158-9-0 for the unsecured debts, be also quashed. a direction is sought from this court to the board that the board should accept the debt which was admitted by the debtors and should proceed to pass the award on the basis of admitted debts. 2. this application raises an interesting.....
Judgment:

D.V. Vyas, J.

1. This is petition under Article 226 or under Article 227 of the Constitution of India, and it is filed by Shah Keshavlal Motichand. The relief which the petitioner has prayed for in this petition is that the Judgment of the Assistant Judge in Civil Appeal No. 237 of 1956, which is pronounced on the 19th January 1957, be quashed. A further relief which is sought by the petitioner is that the order passed by the Board reducing his (Petitioner's) dues to Rs. 1954-8-4- for secured debts and to Rs. 1158-9-0 for the unsecured debts, be also quashed. A direction is sought from this Court to the Board that the Board should accept the debt which was admitted by the debtors and should proceed to pass the award on the basis of admitted debts.

2. This application raises an interesting point of law, and the point is whether the Board constituted under Section 5 of the Saurashtra Agricultural Debtors Relief Act, No. XXIII of 1952, is a Court within the meaning of the expression 'Subordinate Courts' which occurs in the two Notifications, bearing Nos. LD/J/18-5(1)-i and LD/J/18-5(1)-ii, both dated the 23rd May 1956, one of which was issued under Section 17, and the other under Section 19 of the Saurashtra District and Subordinate Civil Courts Ordinance, 1948 (XI of 1948)> The point arises in this way.

3. Opponents Nos. 6 and 7 applied for the adjustment of their debts under the Saurashtra Agricultural Debtors' Relief Act on the 14th February 1955. In their application, the opponents Nos. 6 and 7 mentioned only two persons as their creditors, and those persons are the present opponents Nos. 3 and 4. On the 27th September 1955, the opponents Nos. 6 and 7 disclosed further that the petitioner and the opponent No. 5 were also their creditors, and they requested that these two persons also be joined as parties to the application. The Board thereupon issued notices to the petitioner and opponent No. 5 also. Thereupon, the petitioner filed his statement before the Court under Section 13(b) of the Act, and in that statement, he showed his dues at Rs. 7504-12-0. The opponent No. 5 did not file any statement, and, therefore, his debt was declared to be extinguished. On the 21st January 1956, it was found that the total debts due by the opponents exceeded Rs. 10,000/-. The Board at Manavadar therefore having no jurisdiction no enquire into the matter, the said Board transferred the case to the Board at Junagadh. It is the petitioner's contention in this application that the transfer by the Manavadar Board to the Junagadh Board was not the one which was contemplated under Section 12(2) of the Act, and, therefore, the transfer by the Manavadar Board to the Junagadh Board was one without jurisdiction. At this stage, it may be noted that this objection was not taken by the petitioner when the Junagadh Board started to hear the matter upon its transfer to that Board by the Board at Manavadar. The Junagadh Board proceeded with the enquiry; in that enquiry opponent No. 6 admitted at the dues of the petitioner. Therefore, the Board thought it unnecessary to examine the petitioner for an explanation in regard to any of the items shown by him as due to him from opponents Nos. 6 and 7. The Board at Junagadh, by an order passed by it on the 28th September 1956, which order was passed without calling upon the petitioner to explain the items, disallowed certain items. It is the contention of the petitioner that the Board did not correctly appreciate the accounts which were submitted before it, and wrongly believed that the petitioner had abandoned his claim for the amount of Rs. 5500/- which, says the petitioner, he had not in fact abandoned. Upon this contention, the petitioner submits in the present application, the petitioner submits in the present application, that the whole approach which was adopted by the Board in this case was an approach which was not lawful, and not warranted by the facts.

4. Upon the award being given by the Junagadh Board, the petitioner filed an appeal, No. 237 of 1955 from the award. The appeal was filed in the Court of the District Judge, Sorath. The appeal was transferred to the Court of the Assistant Judge of Junagadh for disposal. The petitioner objected to the jurisdiction of the Assistant Judge at Junagadh to hear the appeal, but the objection was overruled. The learned Assistant Judge dismissed the appeal of the petitioner and confirmed the award which was made by the Board. It is these orders, bot of the Board and of the Assistant Judge, which are challenged and sought to be quashed by the petitioner by filing this application.

5. Now the point which Mr. Hathi for the petitioner has raised is that the Assistant Judge, Junagadh, had no jurisdiction to hear and decide the appeal from a decision of the Board constituted under the Saurashtra Agricultural Debtors' Relief Act and therefore the impunged judgment of the Assistant Judge is a judgment without jurisdiction. Under Section 41(2) of the Saurashtra Agricultural Debtors Relief Act, an appeal from a decision of the Board lies to the District Court within whose local territorial jurisdiction, the Board is situated. But under Section 17 of the Saurashtra Ordinance No. XI of 1948, the Government of Saurashtra may, by notification in the Official gazette, empower any Assistant Judge to try such appeals from the decrees and orders of the subordinate Courts as would lie to the District Judge and as may be referred by him to the Assistant Judge. Under Section 19 of the said Ordinance, the Government of Saurashtra may, by notification in the Official Gazette, invest an Assistant Judge with all or any of the powers of a District Judge within a particular part of a district, and may, by like notification from time to time, determine and alter the limits of such part. Now the two notifications bearing Nos. LD/J/18-5-(1)-i and LD/J/18-5(1)-ii, both dated the 23rd May 1956 were issued by the Government of Saurashtra, one under Section 17 of the Act and the other under Section 19 of the Saurashtra Ordinance No. XI of 1948. Under the notification issued under Section 17, the Assistant Judges at Morvi, Gondal, Porbander and Bhavnagar were empowered to try such appeals from the decrees and orders of the subordinate Courts as would lie to the District Judge, and as may be referred to them by the District Judge concerned. Under the notification issued under Section 19, the Assistant Judges at Morvi, Gondal and Porbandar were invested with powers to entertain such appeals from the decrees and orders of Subordinate Courts as would lie to the District Judge. It is in these circumstances, in order to decide whether the Assistant Judge who heard the appeal from the decision of the Board had jurisdiction to hear it, that it has become necessary to decide whether the Board is a Court within the meaning of the expression 'subordinate Courts' which occurs in these notifications.

6. Section 2, Sub-section (3) of the Saurashtra Agricultural Debtors' Relief Act says: 'Board' means the Board constituted under Section 5 of the Act.' Section 5(1) of the Act provides:

'(1) The Government shall constitute one or more Boards for the whole State or for specified local areas.

(2) Every such Board shall consist of

(a) A Civil Judge, Senior Division, to whom applications may be made under Sub-section (1) of Section 4 in cases in which the total debts exceed ten thousand rupees;

(b) A Civil Judge, Junior Division, to whom applications may be made under Sub-section (1) of Section 4 in cases in which the total debts do not exceed ten thousand rupees;'

Now a Civil Judge is a Judicial Officer, who, in the normal discharge of his duties as a Judicial Officer, exercises wide civil jurisdiction and acquires a bulk of judicial experience. Upon such a Judicial Officer, the legislature has conferred special jurisdiction in the matter of adjustment of debts. From the manner in which the legislature has constituted the Boards, it is evident that the intention of the legislature was that the judicial experience acquired by a Judicial Officer in the exercise of civil jurisdiction should be brought to bear upon and be exercised in matters which fall within the scope of the Act. The special jurisdiction which the legislature has conferred upon a Judicial Officer constituting a Board is that he should entertain applications for adjustment of debts, issue notices upon the debtors and creditors, frame and decide preliminary issues, take accounts, examine the parties, decide whether the transfer is in the nature of a morgage, determine the value of property, declare fraudulent alienations void, determine paying capacity, scale down debts, etc. In the discharge of these duties and the performance of these functions, it is inevitable that the judicial experience acquired by him as a result of having exercised civil jurisdiction, would be a deciding factor, and that it should be so was the intention of the legislature when it provided by enacting Section 5 of the Act that the Board should be constituted of a Civil Judge. Our view is that the intention of the legislature in creating the Boards under the Saurashtra Agricultural Debtors' Relief Act was that a Civil Court which normally exercises civil jurisdiction, would be called a Board when it decides applications under the Act. A mere change of name is immaterial. We must took to the scheme of the Act and the scheme, which I shall presently examine in details, show that the Board constituted under the Act is a Court.

7. While performing the above functions, a Civil Judge does not act as Persona Designata. There are only two ways in which he could possibly act. He could act wither as Persona Designata or as a Court. There is no reason for us to hold that when a Civil Judge who is a judicial officer discharges the duties imposed upon him under the Saurashtra Agricultural Debtors' Relief Act -- the duties of deciding matter which are of judicial or quasi-judicial nature -- and adjudicates upon the rights of the debtors and creditors, he acts in his personal or independent capacity and not as a Court. It is clear in our view that since the word used in the statute (Saurashtra Agricultural Debtor's Relief Act) giving special jurisdiction in matters which are judicial or quasi-judicial, is 'Board' and not 'Court', the scheme of the entire Act must be looked into in order to find out whether the matters are to be decided by him as a Court or in his personal capacity see Kiron Chandra v. Kali Das Chatterjee : AIR1943Cal247 . As we shall presently point out upon the examination of the scheme of the Saurashtra Agricultural Debtors' Relief Act, it is clear that the Civil Judge acting under the said Act does not act as a Persona Designata, but as a Court. In the body of the said Act, there is a scheme which clearly shows that the legislature intended that the Civil Judge constituting a Board should act as a Court, and not as a Persona Designata. Section 54 provides:

'No application or proceeding in regard to the insolvency of a debtor shall be dealt with by any other Court.' The word 'other' in the expression 'any other Court' is significant. It has been used with a purpose, and the purpose is that according to the legislature, the Civil Judge, in the discharge of his duties under the Act, acts as a Court and not as a Persona Designata. This conclusion is, in our opinion, inescapable.

8. In the Bombay Agricultural Debtors' Relief Act, 1939, there was Section 8 which provided' 'All proceedings under this Act before the Board shall be deemed to the judicial proceedings for the purposes of Sections 193 and 228 of the Indian Penal Code.' When the legislature said that the proceedings before the Board should be deemed to be judicial proceedings, though for a limited purpose only, i.e. for the purpose of Sections 193 and 228 of the Indian Penal Code, it clearly intended that they were not judicial proceedings properly so called. Even for the purpose of Sections 193 and 228 of the Indian Penal Code, they were only to be deemed to be judicial proceedings. In the Saurashtra Agricultural Debtors' Relief Act, there are no provisions analogous to the provisions of Section 8 of the Bombay Agricultural Debtors' Relief Act, 1939, and this would point to the intention of the legislature to consider the proceedings held before a Board, as judicial proceedings.

9. Then in the Bombay Agricultural Debtor's Relief Act of 1939, there was Section 15 which said: 'A Board shall in all proceedings under this Act be subject to the control of the District Court within the local limits of whose jurisdiction it is ..... established'. Now if the Board under the said Act were a Court, it would not have been necessary to provide that it would be subject to the control of the District Court, for all Courts in a District are subject to the control of a District Court. In the Saurashtra Act, there is no section analogous to the provisions of Section 15 of the Bombay Agricultural Debtors' Relief Act of 1939. This would also, in our opinion, show that the legislature intended that the Board constituted under the Saurashtra Agricultural Debtors' Relief Act should be a Court. If the legislature had intended that the Board was not to be a Court, it would have also made a provision in the Act as to under whose authority and control the Board would be.

10. In the view we are taking, viz., that the Board constituted under the Saurashtra Agricultural Debtors' Relief Act, is a Court, we are fortified by the fact that the authority before whom the applications for adjustment of debts are made and who adjudicates upon the debts under the Bombay Agricultural Debtors' Relief Act of 1947, is, by the legislature, called a Court. Because the legislature has called him a Court, we do not find in that statute provisions analogous to the provisions of Section 7 of the Bombay Agricultural Debtors' Relief Act of 1939, viz., the provisions regarding vesting of certain powers of civil Courts in that authority, but, in the contrary, we find Section 46 regarding the application of the provisions of the Code of Civil Procedure to the proceedings held by him. These characteristics, viz., the absence in the Saurashtra Agricultural Debtors' Relief Act of the provisions analogous to those of Section 7 of the Bombay Agricultural Debtors' Relief Act of 1939, and the presence in the Saurashtra Agricultural Debtors' Relief Act of the provisions (see Section 44) analogous to those of Section 46 of the Bombay Agricultural Debtors' Relief Act of 1947, would, in our opinion, be sufficient indication that the Board constituted under the Saurashtra Agricultural Debtors' Relief Act is a Court.

11. In the case of People's Own Provident and General Insurance Co. v. Guracharya, A I R 1946 Bom 200, it was held that the Debt Adjustment Board set up under the Bombay Agricultural Debtors' Relief Act, 1939, was not a Court subordinate to the High Court in order to attract the application of Section 115 of the Code of Civil Procedure. It was held accordingly that no revisional application lay to the High Court from the orders of the Debt Adjustment Board, Now the AIR 1946 Bom 200 was a case under the Bombay Agricultural Debtors' Relief Act, 1939, and the question that fell to be considered in that case was whether the Board established under the Act was a Court, and it was held that it was not a Court. It is to be noted, and this would substantially distinguish that case from the present case, that under the Bombay Agricultural Debtors' Relief Act of 1939, the word 'Court' was defined, and the legislature had provided that for the purpose of that Act, 'Court' meant in Sections 17, 61 and 63 of the Act, and where the word 'Court' occurred for the first time in Sub-section (1) of Section 62 of that Act, a District Court to which an appeal lay against an award of a Board under Section 9. The legislature provided further that in Sections 13, 14, 66, 67-A, 75 and 83 and in Section 62 where the word 'Court' occurred for the second time in Sub-section (1), 'Court' meant a District Court, a Court of the Assistant Judge or a Court of a First Class Subordinate Judge as the case might be, hearing an appeal against an award of a Board under Section 9. The legislature then said that in the remaining provisions of the Act wherever the expression 'Court' occurred, it meant a civil Court of competent jurisdiction. Now, as the Board constituted under the Bombay Agricultural Debtors' Relief Act of 1939 did not answer to the definition of 'Court' as given in the Act, it was held, and with great respect rightly, that the Board was not a Court.

12. Now in the present case, the Saurashtra Agricultural Debtors' Relief Act does not define 'Court' and we have to gather the intention of the legislature from the scheme of the Act. As I have Stated above, the essence of the scheme of the Saurashtra Agricultural Debtors' Relief Act is that the decision of the questions falling within the scope of the Act, the judicial experience of a Civil Judge who has exercised civil jurisdiction, must be of vital and undoubtedly of decisive role. We find it difficult to believe that when the legislature conferred a special jurisdiction upon a Judicial Officer under the Saurashtra Agricultural Debtors' Relief Act, it intended to enact that the status which such Judicial Officer possessed while exercising normal civil jurisdiction should be withdrawn from him, and he should cease to be a Court. While exercising special jurisdiction, which is in the nature of the jurisdiction of a Court, the Civil Judge who is acting as a Board may not be deciding civil suits properly so called, but because he adjudicates only upon debts and decides the rights as between debtors and creditors only, there is no reason why we should hold that he is acting as a Persona Designata and not as a Court.

13. There is another reason also why the decision in AIR 1946 Bom 200, would not help Mr. Hathi's client. It was, as I said, a decision under the Bombay Agricultural Debtors' Relief Act of 1939. Now in the Bombay Agricultural Debtors' Relief Act of 1939, these was Section 7 which said:

'(1) Subject to the provisions of this Act and any rules, the Board shall have the same powers as are vested in civil Courts under the Code of Civil Procedure, 1908, when trying a suit and in particular in respect of the following matters;

(a) joining any necessary or proper parties;

(b) summoning and enforcing the attendance of any person and examining him on oath;

(c) compelling to production of documents;

(d) issuing commissions for the examinations of witnesses; and

(e) proof of facts by affidavits.'

The learned Chief Justice took the view that if the Board had been intended by the legislature to be a Court, it would not have been necessary to provide that it shall have the same powers as are vested in civil Courts under the Code of Civil Procedure in respect of certain matters. The provision contained in Section 7, Sub-section (1) of the Bombay Agricultural Debtors' Relief Act of 1939, regarding the vesting in the Board of certain powers of Civil Courts under the Code of Civil Procedure, 1908, for certain purposes only, would show that the legislature did not intend the Board created under the said Act to be a Court. As I have said, in the Saurashtra Agricultural Debtors' Relief Act, there is no section which speaks of vesting in the Board of the powers of a Civil Courts under the Code of Civil Procedure for certain specified purposes only, and this, in our opinion, would show that the legislature intended the Board to be a Court, and, therefore, did not consider it necessary to enact that it would be vested with certain powers which are exercised by the Civil Courts under the Code of Civil Procedure. If the legislature, while enacting the Saurashtra Agricultural Debtors' Relief Act, had intended that the Board should not be a Court, then, it would have made provisions analogous to the provisions of Section 7 of the Bombay Agricultural Debtors' Relief Act of 1939; but it did not do so. Thus, the intention of the legislature in enacting the Saurashtra Agricultural Debtors' Relief Act, in which there is no section analogous of Section 7 of the Bombay Agricultural Debtors' Relief Act of 1939, would show that the Board established under the former Act is a Court.

14. Before I proceed further, I must revert to the provisions of Section 4 of the Bombay Agricultural Debtors' Relief Act of 1939. Section 4 consists of several Sub-sections and Sub-section (3) provides:

'(i) The Board shall consist of :

(a) one person who holds or has held office under the Crown in India, or who has been practising as a legal practitioner for such period as may be prescribed, or

(b) a body or association of persons, or

(c) persons not less that three and not more than five in number.'

It would be interesting to compare the abovementioned constitution of the Board created under the Bombay Agricultural Debtors' Relief Act of 1939, with the constitution of the Board created under Section 5 of the Saurashtra Agricultural Debtors' Relief Act. Under Section 5 of the latter Act, a Board has to consist of a Civil Judge Senior Division or a Civil Judge, Junior Division, and as I have stated above, a Civil Judge has judicial experience, who normally exercises civil jurisdiction. In our view, the fundamental difference in the manner of the constitution of the Board under the two Acts would itself show why the Board constituted under the Bombay Agricultural Debtors' Relief Act of 1939 was not considered to be a Court. In our view, for the reason stated above, the difference being a fundamental difference between the constitution of the two Boards, and upon an examination of the scheme of the Saurashtra Agricultural Debtors' Relief Act, we must come to the conclusion that the Board established under the Saurashtra Agricultural Debtors' Relief Act is a Court.

15. In the case of Manager, the Spring Mills Ltd. v. G.D. Ambekar, AIR 1949 Bom 188, it was held that the mere fact that a statute provided an appeal to a Court from a particular body did not necessarily make that body a Court. It was observed that the authority under the Payment of Wages Act was not a Court within the meaning of Section 115, and the High Court had no revisional jurisdiction over the orders of that authority. This case can hardly held Mr. Hathi's client. We are not deciding that the Board established under the Saurashtra Act is a Court simply because a provision is made in the body of the Act for an appeal to the District Court from the decision of the Board. We have come to the conclusion that the Board is a Court upon a detailed examination of the provisions of the entire Act. We have come to the conclusion that the Board is a Court because the Civil Judge who constitutes the Board decides the matters falling within the scope of the Act not as a persona designata, but as a Court. Besides, it may be noted, that AIR 1949 Bom 188 was a case under the Payment of Wages Act and in the Payment of Wages Act, there is a section, being Section 18. The provisions of Section 18 are:

'Every authority appointed under Sub-section (1) of Section 15 shall have all the powers of a civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of document.'

It is in the light of the provisions of Section 18 that the Court interpreted the intention of the legislature and held that the authority under the Payment of Wages Act was not a Court within the meaning of Section 115 of the Code of Civil Procedure. Section 18 clearly provided that for certain limited or specified purposes only the authority had the powers of a civil Court under the Code of Civil Procedure. The clear implication of this provision was that excepting for the purposes specified in the body of Section 18, the authority was not to be construed as a Court. In the Saurashtra Agricultural Debtors' Relief Act, there is no section analogous to Section 18 of the Payment of Wages Act. This also would show that the scheme of the Saurashtra Agricultural Debtors' Relief Act was that the Board constituted under the Act is a Court.

16. I have, in passing, already made reference to Section 44 of the Saurashtra Agricultural Debtors' Relief Act. Section 44 lays down that:

'Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings under this Chapter.'

Here also we have got the inherent evidence of the intention of the legislature in enacting the said Act. In the Bombay Agricultural Debtors' Relief Act of 1939, there are no provisions analogous to the provisions of Section 44 of the Saurashtra Agricultural Debtors' Relief Act, whereas in the Bombay Agricultural Debtors' Relief Act of 1947, we do find in Section 46 thereof provisions analogous to those of Section 44 of the Saurashtra Agricultural Debtors' Relief Act. In our view, the fact that the legislature enacted that the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings under Chapter II of the Act would also be a good indication to show that the intention of the legislature was that the Board should be a Court.

17. It is true that Lord Halsbury says in Vol. 8 at p. 526 (Hailsham's edition) :

'There are tribunals with many of the trapping of a Court which nevertheless are not Courts in the sense of exercising judicial power. A tribunal is not necessarily a Court in the strict sense of exercising judicial power because it gives a final decision; hears witnesses on oath; two or more contending parties appear before it ..... it gives decisions which affect the rights of the subjects; there is an appeal to a Court.'

But this passage cannot help Mr. Hathi's client. There is no doubt that tribunals which may possess some of the attributes of Courts are not necessarily Courts. As the passage itself shows the essence of the tribunal being a Court lies in its exercising judicial power. As observed at an earlier state (page 525) by the learned author of the above quoted passage.

'The distinction appears to be not so much whether the particular tribunal is a Court of justice but whether it is a Court in law.'

Therefore, we have to see not what the tribunal does, but what it is in law. For this we have to go to the enactment which constitutes the tribunal and find out whether the enactment constitutes it into a mere tribunal other than a Court or into a Court in the strict sense of the word. On a careful analysis of the enactment in question, we have come to the conclusion that the Board constituted under the Saurashtra Agricultural Debtors' Relief Act is a Court.

18. Our attention is also invited to a decision of the Calcutta High Court in the case of Gobinda Chandra v. Rashmoni Dassya, : AIR1943Cal470 . It was a case under the Bengal Agricultural Debtor's Act. We have not got before us the Bengal Act, and we are, therefore, unable to examine the scheme of that Act. In the body of the judgment the learned Judges, with great respect, did not examine the scheme of the Act, and, therefore, we are unable to gather the reasons upon which they held that the Board was not a Court. We are unable to agree with Mr. Hathi that the Calcutta case would assist his clients.

19. I must next refer to a decision of the Saurashtra High Court in Kevalshi Jethidas v. Dilubha Mulsinghji, 9 Sau LR 193. In this case, it was held by a Division Bench of the Saurashtra High Court, consisting of the learned Chief Justice and Mr. Justice Baxi, that the Board exercising jurisdiction under the Saurashtra Agricultural Debtors' Relief Act was not a Court. It was observed that a revision application to the High Court against the order of the Board was not accordingly competent. Upon a perusal of the judgment of the learned Judges in this case it would appear that they referred to the Bombay case of the AIR 1946 Bom 200 and the Calcutta case which I have just mentioned. It appears from the judgment of the learned Judges that the differences emerging from a comparative examination of the provisions of the Bombay Agricultural Debtors' Relief Act of 1939 and 1947, in relation to the provisions of the Saurashtra Agricultural Debtors' Relief Act were not brought to the notice of the learned Judges. Accordingly, with great respect, we do not feel called upon to follow that decision.

20. The result, therefore, is that upon an examination of the scheme of the Saurashtra Agricultural Debtors' Relief Act, we hold that the legislature in creating the Boards under Section 5 of the Act, intended that the Board should be a Court. If a statute creating a tribunal says that the tribunal shall be a Court for the limited purpose of certain sections of certain enactments, then the tribunal is not a Court in the sense in which the word 'Court' is used in the context of hierarchy of Courts established in the Union of India. But, in the body of the Saurashtra Agricultural Debtors' Relief Act, we do not find any such provision made in relation to the Board created under Section 5 of the Act. We must, therefore, hold for the reasons stated in the course of this judgment that a Board created under Section 5 of the Saurashtra Agricultural Debtors' Relief Act is a Court.

21. The next point which Mr. Hathi has endeavoured to make before us is that no opportunity was given by the Junagadh Board to the petitioner of being heard in the matter of his dues from his debtors-Opponents Nos. 6 and 7. It is no doubt true that upon the admission of debts by opponents Nos. 6 and 7, the Junagadh Board did not consider it necessary to put the petitioner in the box and seek any explanation from him in respect of the various items which according to the petitioner, were due to him from opponents Nos. 6 and 7. It is to be remembered, however, that the learned Assistant Judge, on appeal went exhaustively into the question of debts which were due by opponents Nos. 6 and 7 to the various creditors including the petitioner, and there is no doubt that when the appeal was heard by the learned Assistant Judge, the petitioner's learned advocate was present, and argued the case on behalf of this client. We, therefore, do not see much substance in the grievance which Mr. Hathi makes before us that his client was not heard by the Junagadh Board. Then again, if we peruse the appellate judgment of the learned Assistant Judge, it would appear that the learned Judge carefully went into the various books of account maintained by petitioner. The petitioner maintained four books of account, and in these books of account there were various items of interest and various other items. The learned Judge paid careful attention to the question of these items and their relations inter se. He considered Exts. 18, 19, 20 and 21 which were the different books of accounts maintained by the petitioner. In our view, therefore, upon the finding of fact regarding the quantum of the debts due to the petitioner from the opponents Nos. 6 and 7, the learned Judge has arrived at a correct conclusion. The learned Judge saw no reason to interfere with the view taken by the Junagadh Board in that connection. Therefore, on merits also, we see no substance in the contention pressed before us by Mr. Hathi.

22. In the result, the application fails and is rejected with costs.

23. Application dismissed.


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