1. There was a lease of the suit property by the defendant to the plaintiff and a simultaneous agreement by the plaintiff to reconvey the property to the defendant on payment of a named sum. The defendant applied to a Debt Settlement Board for settlement of his debts alleging tnat the transaction was a mortgage by conditional sale. The plaintift denied this contention and disputed the jurisdiction of the Board to decide the matter. The Board made an award settling the debt on the footing that the transaction created a mortgage liability amounting to a debt. An appeal and a revision petition by the plaintiff failed and tni award became final. The plaintiff then instituted the present suit praying for declaration that the lease and thi agreement did not create the relationship of debtor am creditor and that the award of the Board is void and with-out jurisdiction and for consequential injunction. The defendant pleaded that the award of the Board was conclusive and the Civil Court had no jurisdiction to try the suit. The Trial Court accepted the defendant's contention and dismissed the suit. The decision was confirmed by the first Appellate Court. On second appeal Chander, J. held that the Court had jurisdiction to try the suit and remanded the suit for trial. On further appeal under Clause 15 of the Letters Patern the Division Bench agreed with the conclusion of Chunder, J., but thought that this conclusion was in conflict with the decision in Bazler Rahaman Khandakar v. Amiruddin : AIR1944Cal401 . Accordingly the Division Bench referred the case to the Full Bench stating that the following questions arise for decision by the Full Bench :
'I. Whether the question as to the existence or otherwise of a liability can be determined by a Civil Court after it has been decided by a Bengal Agricultural Debtors Board that the supposed liability was a debt?
II. Was : AIR1944Cal401 , correctly decided?'
2. The Bengal Agricultural Debtors Act, 1935 created a special tribunal for the settlement of debts of agricultural debtors. An application for settlement of debts may be made to the Board under Section 8 and the Board may make an award settling the debt as provided in Section 25. Sections 33 to 36 bar the institution and continuance of suits and execution proceedings In respect of debts included in an application to the Board or in an award made by ft and also render the decisions of the Civil Courts nugatory when they come in conflict with the orders of the Board regarding the debt. Section 38 bars appeal and revision against a decision of the Board except as provided by tne Act. Sections 40 and 40-A provide for appeal and revision, by Section 40 (6) the decision of the apppellate officer is made final subject to the power of revision of the District Judge under Section 40-A. Section 20 empowers the Board to decide whether a person is a debtor or not. Having regard to the scheme of the Act, the Board has exclusive jurisdiction to decide whether a person is a debtor or not and its determination of the question is final, see Sailabala Dasjaya v. Nityananda Sarkar : AIR1938Cal375 . Section 18 empowers the Board to decide whe-ther the debt exists and to determine its amount. But this section does not give the Board exclusive power to determine whether a particular liability amounts to a debt, nor was such power given by Section 20 as it stood originally, and if a Civil Court found that there was no liability amounting to a debt it could treat any order made by the Board in the matter as void for want of jurisdiction, see Nur Mia v. Noakhali Nath Bank Ltd. : AIR1939Cal298 , Surendra Nath Chakravarty v. Haran Chandra Chakravarty, 49 Cal WN 592 : (AIR 1946 Cal 53), see also Matilal Saha v. Chandra Kanta Sarkar : AIR1947Cal1 . Section 20 was amended by the amending Act of 1940 and the amended section empowers the Board to decide whether a liability is a debt or not and since then, the Board has exclusive jurisdiction to decide this question also: see, Manager, Nator Raj Wards' Estate v. Geda Bewa : AIR1941Cal658 , Mahadeo Lal v. Indra Chand : AIR1945Cal417 .
3. The Board has therefore exclusive power under the amended Section 20 to decide whether a liability is a debt or not, and on finding that the liability is a debt has power under Sub-section (1) of Section 18 to decide whether the debt exists and to determine its amount. The decision o) the Board as to the amount only but not as to the existence of the debt is by Sub-section (4) of Section 18 made final and not liable to be questioned in any Civil Court of in any manner other than provided by the Act, see also Section 25 (1) (c) and the marginal note to Section 18. Under Section 18 the Board has exclusive power to decide that a debt which once existed has been extinguished and that its amount is nil and if not what its amount is : tut the section does not give the Board exclusive power to decide whe-ther the debt ever existed at all. By the combined effect of Sections 18 and 20, if the dispute is whether a liability ever existed at all, the Board has no exclusive power to decide this dispute, but in a situation where the parties are at one in asserting that a liability once existed but a difference has arisen between them whether the liability amounts to a debt and if so whether the debt has since been extinguished and if not, what is its extent and amount, the Board has exclusive power to decide this difference. If the difference is whether some transaction, such as a sale and a simultaneous agreement of reconveyance created a mortgage liability, such a difference is a dispute whether a liability ever existed at all and the Board has no exclusive power to decide this difference.
4. In the leading case of R v. Income-tax Special Purposes Commissioners, (1888) 21 QBD 313 (319), Lord Esher M. R. stated the law in this way :
'When an inferior Court or tribunal or body which has te exercise the power of deciding facts, is first establlstiea by act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to deeds whether that state of fact exists, and, if they exercise the jurisdiction without its existence, what they do may be Questioned, and it will be held that they have acted without jurisdiction.'
The present case is clearly one where the inferior tribunal is empowered to settle the debt on the assumption that a liability once existed. If that slate of fact exists, but not otherwise, the Board has exclusive power to decide whe-ther the liability amounts to a debt and if so what is its extent and its amount. If there was never any liability, its decision and award may be questioned and may be adjudged to be null and void and without jurisdiction.
5. In the later case of R v. City of London Etc., Rons. Tribunal; Ex parte Honig, (1951) 1 All ER 195, Lord Godard, C. J. quoted with approval a passage from Halsbury's Laws of England 2nd Edition, vol. 10, page 193, para 375, showing that the inferior tribunal can and must decide as to the collateral fact in the first instance, but the superior court may upon certiorari enquire into the correctness of the decision and then observed : 'I am of opinion that the tribunal had power to enquire into the collateral fact, namely, whether there was a contract, because it was only a there was a contract that they could exercise jurisdiction which the Act of Parliament has given them. Having decid-ed that, it is open to the person who comptains of that decision to ask the court to enquire into it by means of certiorari'. I may add that the correctness of the decision of the inferior tribunal may be inquired into by the (sic) Court on certiorari as also in an ordinary suit.
6. The Debt Settlement Board has therefore power to enquire into the collateral fact in the first instance and decide whether a liability ever existed at all and/or whe-ther a transaction ever created a liability at all. This conclusion is consistent with Section 2 (10) which shows that the Board is entitled to form an opinion whether the transaction amounts to a loan and with Section 11 (1)(b) and Form I of the Bengal Agricultural Debtors Rules 1936 which show that the debtor need not admit the claim of the creditor and may even say that the amount of the debt is nil. The Act and the Rules show that the Board has power to enquire into the question whether a liability case existed at all and or whether a transaction created the alleged liability on the part of the debtor. It was not (sic) tended that the Board would be compelled to stay its hands, as soon as the original existence of the liability was (sic) puted by either party. The Board can decide the master in the first instance, but its decision is liable to review by the Civil Court and is not conclusive. The Board may make an award as to the amount of the liability on the assumption that there was some transaction which created a liability. Other instances of like awards by inferior tribu-nals will be found in the law reports: see In Re Harper and Great Eastern Rly. Co., (1875) 20 Eq. 39 (46), Briarley his Local Board v. Pearsall, (1889) 9 AC 595 (600).
7. I will now briefly review some of the decided cases on the point in issue. In Sachirani Biswas v. Nagendra Nath Nath : AIR1942Cal552 , Henderson, J. decided that the Civil Court was not bound to stay a suit for declaration of title and recovery of possession of a property on the basis of a purchase by the plaintiff on receipt of a notice under Section 34 even though the defence was that the transaction of sale was really a mortgage and the defendant had applied to the Board for settlement of the alleged debt I agree with the decision. The Board has not vested with exclusive power to decide whether the transaction created a mortgage liability and the court had full power to decide this issue in the pending suit. In : AIR1944Cal401 , a debtor applied to the Board for settlement of a debt on the allegation that a deed of sale and as agreement of re-conveyance together amounted to e transaction of mortgage by conditional said and created the relationship of debtor and creditor between the parties. The alleged creditor contended that the Board had no jurisdiction to decide whether the transaction amounted to a mortgage. the Board equipped into the question and decided that the transaction was a mortgage. There was an appeal and a revision petition and on a further rev--sion petition to this Court Biswas and Latitur Banman, v. held that the Board had jurisdiction to dacide the question. Plainly the Board had power to enquire Into the question in the first instance. But the Board observations tn the case suggesting that the Board had exclusive power under Sections 18 and 20 to decide the question and that the decision was final cannot be supported. I am also unable to agree with the observations of Biswas, J. In Munshi (sic) uddin Ahamed v. Abdul (sic), 43 Cal WN 332, suggesting that the Board had exclusive power to decide whether there was ever any transaction which created a liability on the part of the alleged debtor.
8. In the present case Chander. I. rightly held trial the Civil Court had jurlidlction to try the suit.
9. We pan the following order :
Tha questions referred to the Full Bench an as follows :
'1. Whether the question as to the existance or Other-wise at a liability can be determined by a Civil Court after it has been decided by a Bengat Aggricul-tural Debtors Board that the supposed liability was a debt?
2. Was : AIR1944Cal401 , correctly decided?'
10. The answers of the Full Bench are as follows : Answer to Q. 1. In the affirmative.
Answer to a 2. The case tn : AIR1944Cal401 , was correctly decided In so far as It held that the Board had power to decide In the first instance whether a transaction ever created a liability at all out the case was not correctly decided In so far as It held that the Board had exclusive power to decide that question.
11. The appeal be and Is hereby dismissed. There will he no order as to the costs of this reference and ot the tetters Patent Appeal.
12. This matter has come to us, having been referred by a Division Bench under Rule 5 of Chapter VII of the Appellate Side Rules. The short facts are as follows : Baser Hondal and others are the plaintiffs in the suit out of which this appeal arises. Sm. Krishnamoni Das is the defendant. The defendant gave to the plaintiff No. 1 and the predecessor-in-interest of the plaintiffs Nos. 2 to 6, certain plots of land in settlement by a Patta on an annual rental of Rs. 10/1/6 upon receipt of a salami of Rs. 853/-. In the same date, the plaintiffs executed another document namely, an Ekrarnama by which it was agreed that of the defendant repaid the sum of Rs 853/- to the plaintiffs, by Chaitra 1350 B.S., they would reconvey to tha defendant, the said lands. The defendant, however, did not repay the said sum and the plaintiffs continued to possess the lands as settled, on payment of rent only. After the passing of the Bengal Agrricultural Debtors Act (Bengal Act VII of 1936) the defendant moved the Special Debt Settlement Board at Basirhat, claiming to get back the property, alleging that the patta and ekrarnama mentioned above, constituted a mortgage by conditional sale, and tor consequential reliefs. The plaintiffs were impleaded as opposite parties and they questioned the jurisdiction of the Board to entertain tnh application. The Debt Settlement Board held that the transaction between the plaintiffs and the defendant amounted to a loan and there was nothing due from the debtor to the creditors. In other words, it was decided that there was a debt and that the debt had been satisfied and no longer existed. Against this award, the plaintilfs preferred an appeal before the Appellate Officer. The appeal was dismissed. Then a revision case was filed before the District Judge which also failed. Ultimately, an application under Section 115 of the Civil Procedure Code was made In the High Court, which was also unsuccessful. Thereupon, a suit was filed by the plaintiffs out of which the present appeal arises. In the suit, a declaration was claim-ed that the patta and ekrarnama were two independent transactions and under the statute the two could not be considered as creating a mortgage by conditional sale. It was urged that the ekrarnama was merely an agreement for reconveyance and it was not within the competence of the Debt Settlement Board, either to interpret the ekrarnama or to enforce the agreement. The defendant claimed that the civil court had no jurisdiction to try the suit and also contended that the patta and ekrarnama constituted a mortgage by conditional sale and accordingly there was a relationship of debtor and creditor between the parties, and the decision by the Board was final in this respect. The learned Munsif, as also the lower Appellate Court, dismissed the suit on the ground that the Civil Court had no jurisdiction to modify the decision of the Debt Settlement Board. On second appeal to this Court, Cnunder, J. hold that under Section 58-A of the Transfer of Property Act, and on the facts of this case, no mortgase by conditional sale had been created. There was no question, therefore, before the Board, as to whether there was a debt or not and the Board wrong-ly assumed jurisdiction. The learned Judge set aside the decrees of both the Courts and remanded the suit tor trial on the proper issues. Against this order there was a further appeal which came up bsfore a Division Bench presided over by Mookerjee, J. The learned Judges noticed the various decisions under the Bengal Agricultural Debtors Act. In particular, they noticed the Division Bench judgment in : AIR1944Cal401 , and disagreed with the same. The entire appeal has been referred to us, but the learned Judges formulated two questions, which are as follows :
'1. Whether the question as to the existence or other-wise of a liability can be determined by a Civil Court after It has been decided by a Bengal Agricultural Debtors Board that the supposed liability was a debt?
2. Was : AIR1944Cal401 , correctly decided?'
13. The short point in issue is as follows : It is argued that the Debt Settlement Board is a creature of statute and has been given exclusive jurisdiction in certain matters. Therefore, to the extent that such jurisdiction has been conferred, the corresponding jurisdiction of the civil court had been excluded. But that jurisdiction is to decde whether a debt exists or not, and not whether there is any liability. Being a court of limited jurisdiction, the civil court can always go into the question as to whether the Board has jurisdiction or not, or whether it has wrongtuhy disurped jurisdiction, or has wrongfully held that it has jurisdiction. I shall come back to the general point of jurisdiction. But before doing so, it would be necessary to examine the provisions of the Bengal Agricultural Debtors Act (hereinafter referred to as the 'said Act'). This Act was promulgated in 1935, and the preamble shows that the ob-ject of the Act is to provide for the relief of indebtedness of agricultural debtors in Bengal. Rural indebtedness has been a grievance of long standing. It was the object of this Act to give relief to an agricultural debtor in Bengal whose primary means of livelihood was agticulture and who was a raiyat or an underraiyat or cultivated land himself or by members of his family or by hired labourers or by adhiars. it empowered the Local Government to establish Debt Settle-ment Boards for the settlement of debts in respect of which applicaitons were made before the Board by the debtor or the creditor. The scheme is that the Board shall use its best endeavour to induce the debtor and the creditor to arrive at an amicable settlement. The object is to reduce the indebtedness to an amount which the debtor will be able to repay in instalments extending to 20 years, or otherwise declare him an insolvent. It was intended that these Boards, and the proceedings before them, should be exclusive, and suits and proceedings in respect of matters brought before the Boards shall be barred in civil and revenue courts. The original Act was passed in 1936, but very important amendments were introduced in 1940. I now come to the provisions of the said Act. Applications for settlement ot debts are made under Section 8. Section 18 deals with the determination of the amount of debt and the following provisions are relevant :
'18a. (1). If there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount :
Provided that a decree of a Civil Court relating to adebt shall be conclusive evidence as to the existence andamount of the debt as between the parties to the decree,
(4) When the Board has determined under Sub-section (2) the amounts of the principal of a dent due from a debtor and of the arrears of interest due thereon, the decision of the Board, in this respect shall not be questioned in any Civil Court or in any manner other than that provided in this Act.'
The next relevant section is Section 20, which runs as follows :
'If any question arises in connection with proceedings before a Board under this Act, whether a person is a debtor or not, or whether a liability is a debt or not, the Board shall decide the matter.'
14. The words 'or whether a liability is a debt or not', were not in the original section but were introduced by the amendment of 1940. The amendment is not retrospective. Section 25 deals with the form of the award. Sub-section (3) is in the following terms :
'From the date of the signing of the award under Subsection (2) it shall, in supersession of all previous decisions of a Civil Court in respecl of the debts mentioned in it, be binding on the debtor and his creditors and the successors in interest of such debtor and creditors.'
Section 34 provides that when an application under Section 8 has been made and includes any debt in respect ot which a suit or other proceeding is pending before a Civil or Revenue Court, notice may be given to such Court in the prescribed manner and thereupon the suit or the proceed-ing shall be stayed until the Board has either dismissed the application in respect of such debt or made an award. Section 35 lays down a bar to the execution of certain de-crees and certificates under the Public Demands Recovery Act, 1913, in respect of debts which are the subject matter of an application before the Board or an award made by it. Section 40 provides for appals against a decision of the Board cr an award passed by it. Section 40-A provides for a revision by the District Judge of an order made by the Appellate Officer. Under Section 42, the Board may make a reference to the Appellate Officer upon certain questions. Section 52 deals with the extension of the period of limitation.
15. These being the principal provisions of the Act, it will next be convenient to consider the decided cases. I might state at once that there is a plethora of cases on the subject, some of which are very difficult to reconcile. I think it will be convenient to deal with the cases chrone-logically as far as possible. The first case from which I intend to start is a judgment of panchridge, J., -- Nar-singdas Tunsookdas v. Chogemull : AIR1938Cal402 . It was held that when a Board, on an application by a debtor respondent within its jurisdiction, has sent a notice under Section 34 to a Civil Court, where some suits or proceedings in respect of a debt included in the application are ponding, the latter must stay its hands. It cannot investigate whether the applicant before the Board Is a 'debtor' within the meaning of the Act. The learned Judge said as follows :
'Now undoubtedly there is much in the Act which may appear startling to one who has been trained in the English system, which attaches a supreme importance to the principle of the sanctity of contracts. The main intention of the Act is however clear, and it is that the liabilities of certain debtors shall be ascertained, 'settled' and recovered through the agency of Settlement Boards to the exclusion of the Civil Courts. Such being the intention, one should, I apprehend, construe the Act if possible in such a way as will carry it into effect equitably and reasonably.'
16. The next case is a Division Bench judgment of this Court : AIR1938Cal375 . S. K. Giiose, J., held that on receipt of a notice under Section 34 of the said Act, the Civil Court had no jurisdiction to enquire and decide whether the applicant before the Board is a 'debtor' within the meaning of the Act, although it may appear that the Board has not decided the question. The learned Judge said as follows :
'These and other provisions which need not be examined here show quite clearly that the Act has set up a Special Tribunal for the determination of the question whether the person is a debtor or not and that determination is final. It would be inconsistent with the provisions of the Act to hold that the Civil Court is to go into and decide the same question.'
17. The next decision is a judgment of Ameer All, J. -- Baijnath Tamakuwalla v. Tormull : AIR1938Cal455 . Here also, the question was as to the ouster of jurisdiction of the Civil Courts. Turmull was a defendant in a suit in which Baijnath Tamakuwalla got a decree for Rs. 7000/- in respect of transactions in piece-goods. Certain amounts were paid and there remained a balance for which execution was applied for in this Court and the decree was sent for execution to Dumka in Bihar. Certain properties of the defendant were attached, but be-fore sale a notice was received under Section 34 of the said Act. An application was taken out by the judgment detor for an order that further proceedings in execution should be stayed. I need not refer to the other matters discussed in the judgment of the learned Judge. I will only refer to that part of it which relates to jurisdiction. The learned Judge said as follows :
'I fully accept Mr. Khaitan's proposition of law that Courts hawing limited or subordinate or special jurisdiction are not ordinarily unfettered in their own decisions, regard-ing the limits of their own jurisdiction; that ordinarily the Supreme Court of the land has jurisdiction to decide whe-ther the special Court or Court of limited jurisdiction has, or has not rightly decided as to its own jurisdiction. But there is no inherent obstacle to a Court of special jurisdiction being vested with exclusive and final jurisdiction. That is purely a question for the legislature.
I also agree with Mr. Khaitan that in order to vest the subordinate Court or Court of special jurisdiction with exclusive and final jurisdiction, the powers in question should be given to it in clear terms, subject to this that it can also be a matter of inference when the indications are sufficient to justify such inference. I also agree that there is some sort of presumption against the grant of jurisdiction to the exclusion of the Supreme Court of the land.
Now with regard to this Act. First of all, as to the general nature of its provisions. This principle of it is this : There is a separate set of Courts created for the decision of civil claims against a certain class of persons : a certain class of prospective Defendants. It is not exactly a subordinate system; it is a parallel system. I know of nothing precisely analogous to it. possibly the jurisdiction of ecclesiastical Courts over a clergy might form an analogy and I am not sufficiently familiar with the history of the English law. It is a separate jurisdiction for a certain class of persons. All claims against agriculturists are withdrawn from ordinary Courts. They are not liable to defend themselves in the ordinary Courts and have no right to do so. They have no right to defend themselves in the ordinary Courts. It is a compulsory arbitration for all cases in which certain persons are claimed against.'
18. The next came to be considered is a Division Bench judgment : AIR1939Cal298 . Mukherjea, J., came to consider the point as to the juris-diction of the Board under the said Act. The learned Judge said as follows :
'The Bengal Agricultural Debtors Act is undoubtedly a special Act which confers special jurisdiction upon the tribunal set up by it to deal with certain specified cases and it lays down new remedies and a new procedure. The jurisdiction that the Debt Settlement Board exercises within the limits of its authority must be deemed to be exclusive and cannot concurrently be exercised by the Civil Court. This is apparent from the whole scheme and structure of the Act and particularly from Sections 33 to 36 which are intended to stay the hands of the Civil Court or to render its orders and decisions nugatory when they come into Conflict with anything which is done by the Board under the provisions of the statute ..... Ordinarily, when a tribunal exercises a subordinate or special jurisdiction the question whether the condition essential to give it jurisdiction is present or not is left to the ordinary Courts of the land. I agree however with Mr. Justice Ameer Ali in holding that there is no inherent obstacle to a Civil Court being vested with exclusive and final powers in the matter of determining the limits of its own authority : AIR1938Cal455 . The question, therefore, narrows down to this as to how far the legislature either expressly or by implication has endowed the Debt Settlement Board with authority to determine the matters which are necessary to enable it to exercise its powers under the Act. ..... There is no ambiguity with regard to the provision of this section and, in my opinion, it is established beyond doubt that the Board is given exclusive jurisdiction to decide as to whether or not a person is a debtor within the meaning of the Act and is competent to make an application under Section 8 of the Act. The decision of the Board in this matter can be revised only by the Appellate Tribunal that is constituted under Section 40 of this Act and the Civil Court cannot exercise any concurrent jurisdiction in this matter. This is well established by a series of cases in this Court and reference may be made only to the cases of Harish Chandra Pal v. Chandra Nath Saha : AIR1938Cal369 and : AIR1938Cal455 .
The question now is as to whether the Board is also given authority by the statute to decide the question as to whether a liability is a debt at all wilhin the meaning of the Act. The answer to this question in my opinion must be in the negative.'
19. This is a decision made in 1938, before the-amendment that was infroduced in 1940 in Section 20. By the amendment, the words 'or whether a liability is a debt or not' have been introduced in this section. There-fore, the observations of Mukherjea, J. show that the problem was brought to the notice of the legislature and and it was in order to remedy the defect in jurisdiction that these words were introduced. The next case is a decision of Biswas, J., 43 Cal WN 332. According to the learned Judge, where an amount is included in an application under Section 8, although the liability may not be admitted, the item is still to be regarded as a debt and Section 34 notice would be effective. It was held that it would be wrong to limit the jurisdiction of a Debt Settlement Board only to the settlement of admitted debts. The next case to be ctted is one that came to be decided after the amendment : AIR1941Cal658 . In that case, what happened, was as follows: A rent suit was filed in the Court of the Munsif, by the Manager, Nator Raj Wards' Estate, against certain tenants on April 12, 1940. After the suit was instituted, the Defendants approached the Debt Settlement Board at Kharabari and notice was issued by the latter under Section 34 of the said Act, requesting, the Munsif to stay all further proceedings. In pursuance of this notice the Munsif made an order of stay. In July, 1940 the Bengal Agricultural Debtors Act was amended and under Section 2, Clause (8) of the amended Act, the word 'debt' had reference to liabilities incurred prior to January 1st, 1940. As a liability incurred subsequent to January 1st, 1940 was no longer a 'debt', within the meaning of the said Act, and the suit filed by the plaintiff included a claim of rent which had accrued due by the middle of January, 1940, that is to say, after the speci- fied date, the plaintiff made an application to the Munsif, praying that the stay order might be vacated, at least with regard to that portion of the claim which was not a 'debt' within the meaning of the amended Act. It was found, 'however, that the claim made before the Board included claims both anterior and subsequent to January 1st, 1940, Mukherjea, J., said as follows:
'In fact, the entire claim made by the plaintiff in tne rent suit is shown as one item of doubt in the application under Section 8. That being the position, underSection 20 of the amended Act, it is the Debt Settlement Board which has the exclusive jurisdiction to decide whether the liability is a debt or not. Till the matter is decided by the Board, the Civil Court has nothing further to do except to stay all further proceedings in the suit under Section 34 of the Act. The question of partial stay, of suit could arise, if the claim for the period subsequent to January 1st, 1940, was not before the Debt Settlement Board at all, or if the latter expressly decided not to deal with this portion of the claim as not being a debt within the meaning of the Act.'
20. The same conclusion was reached by another Division Bench presided over by Biswas, J. -- Sitaram Bhattacharjee v. Pancha Huchi : AIR1942Cal229 . It was held that where a debtor had included a liability incurred partly before and partly after the 1st January, 1940, in his application before a Debt settlement Board, and the same liability was the subject matter of a suit before a Civil Court, the latter must, on receipt of a notice under Section 34 of the said Act, stay the whole suit. Under Section 20 of the Act as amended, the Board was the only authority to decide whether a liability was a debt or not. In the Bench decision of Ram Ranjan Das v. Maharaj Bahadur Sinha 0065/1943 : AIR1944Cal88 Henderson, J., pointed out as to why Section 20 of the said Act was amended. He said as follows:
'Under Section 20 of the Bengal Agricultural Debtors Act as amended, the question whether the liability is a debt or not is a matter which has to be decided by the Board. The decisions upon which the Courts below relied were all made under the old section and I suppose that it was in order to get rid of the effect of those decisions that the section was thus amended. As a result of that amendment questions such as these have to be decided by the Board and it is no longer open to Court to ignore a notice under Section 34 on the ground that there is no debt within the meaning of the Act.'
21. In Jadu Mondalani v. Sarajini Choudhurani : AIR1945Cal100 what had happened was that an application before the Board had been dismissed under Section 13(3) of the said Act. A second application was made which was manifestly incompetent. It was held that a civil court could not ignore a notice under Section 34 of the said Act on the ground that the application on the basis of which notice had been given was incompetent. It was for the Board to say whether the application was incompetent or not. So long the application was not thrown out by the Board, the notice under Section 34 was valid and must be given effect to. The next case to be considered is a Bench decision of this Court presided over by Biswas J. : AIR1944Cal401 . It will be remembered that it is the case that has been mentioned in the order of reference. In fact, it is this decision with which the learned Judges disagreed, it will be, therefore, necessary to consider it closely. The facts in (hat case were as follows: The petitioner was ordinarily resident at a place called Chouddagram, within the Comilla Sub-Division. The Debt Settlement Board having jurisdiction in that area was not at Laksam. Yet, he made an application under the said Act before that Board. The Special Board thereupon forwarded it to the Collector under Rule 22 of the Bengal Agricultural Debtors Rules, 1936. The Collector directed a transfer of the case to the Ordinary Board at Batisha, although the petitioner was not residing in that area. The petitioner's case was thai his father, on his own behalf and as guardian of the petitioner who was then a minor, jointly with the petitioners, two adult elder brothers, purported to execute a deed of safe in respect of certain properties in favour of three persons. The consideration for the transaction was stated to be a sum of Rs. 5,400/-, out of which Rs. 900/- only was paid in cash and the balance was set off against a pre-existing mortgage debt of Rs. 4500/- on the same properties. On the same date, the purchasers executed a document in favour of the vendors, agreeing to reconvey to them the properties if they paid back the said sum of Rs. 5400/- to the purchasers within five years. The-petitioner maintained that the two documents s(ood together, and (heir effect was to make the transaction a-mortgage by conditional sale, creating the relationship ot debtor and creditor between the parties. It was on this-basis that he made his appplication before the Debt Settlement Board, claiming that the debt had been fully satisfied by the mortgagees' possession for over 15 years. It appeared that a previous appplication had been made to the Board at Chouddagram by the petitioner's brothers in respect of the same transaction, but the application ha* been dismissed by the Board under Section 17, holding that the issue was too complicated for the Board to decide. On the present application, however, the Batisha Board went into the question and found that the transaction was. a mortgage, and not only held that the debt had been extinguished by the mortgagee's possession, but that a sum of Rs. 1,080/- was due by the mortgagee to the mortgagor. It accordingly allowed the application. Against this order, the opposite parties preferred an appeal to the Appellate Officer under Section 40. The Appellate Officer held that he was precluded from interfering with the Board's finding with regard to the nature of the transac-tion, because the appeal was filed beyond 30 days as prescribed by Sub-section (2) of Section 40. But he set aside the order on the ground that the opposite parties had not been served with the requisite notice under Section 13(1) and in the result, remanded the case for re-hearing. The remand was, however, directed not to the Batisha Board but to the Special Board at Lakrham, with a direction that it was to treat the transaction between the parties as a debt. The opposite parties made an application for revision under Section 40-A. The learned Additional District Judge was of the opinion that the fundamental question in the case was, whether or not, the document on which the petitioner relied, created a liability at all, and this was a matter which the Board was not competent to decide. According to him. Section 20 of the said Act as amended, empowered the Board to decide whether a liability was a debt or not, but this pre-supposed the existence of a liability in the nature of a debt. Where, therefore, the existence of a liability was in dispute, it was beyond the jurisdiction of the Board to determine the question. In this view of the matter, the Additional District Judge set aside the order of the Appellate Officer, and directed him to instruct the Board to dismiss the application. Against this order an application for revision was made to the High Court. Various points were argued with which we are not concerned here. The only point to be considered here is the point of jurisdiction of the Board and to what extent it ousted the jurisdiction of a Civil Court. Biswas J., said as follows:
'Secondly, we think the learned Judge placed too narrow an interpretation on the terms of Section 20. It seems to us that the power to decide whether a liability is a debt or not, must necessarily include the power to decide whether or not there is a liability. The learned Judge may be right in thinking that the two questions are not quite the same, but the first involves the second, and where, therefore, there is any doubt or dispute as to existence of a liability, this must be first determined be-fore and as a prelminary to the determination of the further question as to the nature of the liability. To give sffect to the view of tha learned Judge would in fact be to render the provisions of the whole Act nugatory, for, if he is right, it should be possible in every case to defeat an application by merely asserting that there is no liabi-lity, and thereby ousting tha jurisdiction of the Board. We do nut think there is anything in the language of Section 30 which compels us to adopt a construction which in- volves such a result.
Apart from this, we do not see why a question as to the existence of a liability cannot be hold to come within the terms of Section 18, which expressly empowers a Board to decide whether a debt exists or not. Every lability may not be a debt, but every debt is a liability, and jurisdiction to decide that thera is a debt implies jurisdiction to decide that there is a liability.
As to whether a transaction is a mortgage or a sale, 'this may be, and very often is, a very difficult question even for a Civil Court to decide, and such a question should not perhaps be left to the determination of a lay tribunal like a Debt Settlement Board, but that is a matter of policy which it is not for us to enter into. We have to interpret the statute as it stands, and give effect to such interpretation however much we may regret the result which it leads to.'
22. The decision of tha Additional District Judge on the point of jurisdiction was set aside. Before I deal with this case, it will be necessary to refer to a few more decisions. The next decision to be referred to is a Division Bench presided over by Mukherjea, J. -- (sic) Bhusan Roy v. Bhatanath Sinha Roy : AIR1945Cal326 -- In that case, an application was made to the Special Dobt Settlement Board at Ranaghat by the debtor, based on a mortgage and some other debts. The application was dismissed and against this Order no appeal was taken. These years thereafter the creditor filed a suit TO enforce the mortgage. Thereupon, the debtors (sic) a second application before the Debt Settlement Board at Fatehpore for settlement of the very same debt which was the subject matter of the first application. Notice was issued under Section 34 upon the Munsif at Ranaghat. The proceedings were stayed and thereupon an application was made to the High Court. Mukherjea, J. could not (sic) with the decision in 47 Cal WN 883: (AIR 1945 Cal (sic)00) (Supra) and said as follows:
'It is an established principle of law that when a tribunal exercised a subordinate or special jurisdiction, the question whether the condition essential to give it jurisdiction is present or not is left to the Ordinary Courts of the land, unless the power is expressly taken away from the latter. In the case of the Secy. of State v. Mask and Co. , it was thus observed by their Lordships of the Judicial Committee :
'it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed tf clearly implied. It is also well settled that evert it jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases when the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.' It is quite true that the legislature may by express words vest a special tribunal with exclusive and final authority to determine the matters which constitute the condition precedent to the exercise of its powers under the Act and in such cases jurisdiction of the Civil Court must necec-sarily be ousted. When, therefore, a notice is issued by a debt settlement board under Section 34 of the Bengal Agricultural Debars Act, the Civil Court would have jurisdiction to determine whether the notice is a valid one or not and to ignore if it is found to be a nullity unless the validity of the notice is challenged on a ground which is within the exclusive competence of the Debt Settlement Board to decide.... The Civil Court may not have any authority to decide whether the second application related to a debt within the meaning of the Act, but it is cetainty competent to determine whether the Debt Settlement Board had at ail any jurisdiction to entertain the second application when the first application was dismissed under Section 17(2) of the Bengal Agricultural Debtors Act. Section 8(5) of the Act expressly takes away from the Board the authority to entertain the second application for settlement of debts when the first one has been dismissed under Sub-section (3) of Section 13 or under Clause (b) (ii) of Sub-section (1) or Sub-section (2), of Section 17. No exclusive authority has been given anywhere to the Debt Settlement Board to decide whether the order of dismissal on the first application was under the sections mentioned aforesaid. In such circumstances, we think that there is nothing in law which prevents the Civil Courts from examining the matter itself and it can ignore a notice if it is satisfied that the second application on the basis of which the notice was issued was not entertainabla by the Debt Settlement Board.'
23. The next case to be citad Is also of a Division Bench provided over by Mukherjea, J. : AIR1945Cal53 . In that case, the real point to be decided was whether the provisions of Section 20 of the said Act as amended in 1940, had any retrospective application. It was decided that it had not. The question in-cidentally arose as to whether, after the amendment, the Debt Settlement Board had jurisdiction to determine whe-ther a particular transaction by way of sale coupled with an agreement to reconvey, was a 'Debt'. Mukherjea, a said as follows:
'We think that the general proposition of law is well settled that a Debt Settlement Board being a tribunal of special jurisdiction, its power are limited by the statute by which it is created. The tribunal must act within the limits of its powers as laid down in the Act and if it does so, its orders -- right or wrong, -- cannot be chal-lenged except in the manner and to the extent provided By the Act itself. Ordinarily, when a tribunal exercises a subordinate or special jurisdiction, the question whether the condition essential to give it jurisdiction is present or not is left to be decided by the ordinary Civil Courts of the land. Vide . But the Legislature may invest a special tribunal with exclusive jurisdiction to determine its authority in certain matters, and when it docs so, the Jurisdiction of the ordinary Civil Court must be deemed to have been taken away to that extent. In the case in : AIR1939Cal298 , it was held that the assumption of jurisdiction by a Debt Settlement Board depends upon the fact that there is a debt and although the Board could de- cide any question relating to the extent or amount of the debt, the Legislature did not invest it with powers to determine exclusively whether a particular liability amounted to a debt at all. If, theretore, a Civil Court came to the conclusion that there was no liability amounting to a debt within the meaning or the Bengal Agricultural Debtors Act, it could treat any order made by the Debt Settlement Board in regard to such matter as void for want of jurisdiction.
The law has since been changed, and under Section 20 of the amended Act, it is for the Debt Settlement Board to decide whether the liability amounts to a debt within the meaning of the Act, and the Civil Court, therefore, is not competent to question the decision of the Debt Settle-ment Board in this rsepect. Section 20 of the Bengal Agricultural Debtors Actr however, was amended in 1940, and ever if we held that the amended section would be applicable to proceedings before the Debt Settlement Board which were actually pending at the time when the amendment came into force, it could not have any application in the present case where the proceedings before the Debt Settlement Board and before the Appellate Offi-cer had terminated long before that date. In our opinion, therefore, the lower Appellate Court was wrong in holding that the provisions of the amended Section 20 of the Bengal Agricultural Debtors Act could be attracted to the facts of the presant case and as is the opinion of the District Judge, there was no debt created at all by the instrument of transfer, it must be held that the assumption of jurisdiction by the Debt Settlement Board, was entirely unwarranted, and the award it made was a nullity.
It Is not necessary in the view we have taken to consider further whether Section 20 of the Bengal Agricultural Debtors Act, as it stands at present, authorises a Debt Settlement Board to determine whether a transaction by way of a sale could create a liability at all. The point certainly is not free from doubt, and although a Division Bench of this Court has taken the view (see : AIR1944Cal401 ), that such matters would be within the exclusive competence of the Debt Settlement Board to decide, the matter may require further ccnsidera-tion.'
The point was therefore left open.
24. The next case to be considered is a decision of Chakravartti, J. (as be then was) -- Taramoni Dassi v. Kalipada Haldar : AIR1947Cal249 . The facts in that case were as follows : Sreematty Baruni Dasi, acting for herself and a minor son, borrowed a sum of Rs. 1,400/- from the plaintiffs and executed in their favour a settlement of possessory mortgage. It was stipulated in the deed that the mortgagor would hold, and would enjoy, the rent in lieu of interest, but if the mortgagor failed to repay the loan by a specified time tne mortgage would be treated as an absolute transfer. No demand was made within the specified time and the mortgage continued to he in possession of the land. In December, 1938 the mortgagor made an application under the Bengal Tenancy Act for restoration of the lands under Section 26(G) (b) or the said Act. The mortgagee thereupon tiled a suit upon the mortgage. The Subordinate Judge disposed of the mortgage suit as also tha application under Section 26(G) (5) by the same judgment. hE held that the mortgage was not a mortgage by conditional sale, but was a usufructuary mortgage and since the statutory period of 15 years had elansed, the application under Section 26 (G) (5) must be allowed. The mortgage suit was dismissed. Against the dismissal of the suit there was an appeal and against the finding with regard to the application under Section 26(6) (5), there was a revisional application. The revision application succeeded and it has held that the mortgage was a mortgage by a conditional sale to which Section 26 (G) (as it stood then) did not apply. The application of the mortgager under that section was accordingly dismissed. Thereafter, two statutory changes took place. The Bengal Agricultural Debtors Act was amended as also Section 26 (G) of the Bengal Tenancy Act. In the meantime, the mortgagor took proceedings before the Debt Settlement Board and made an application under Section 8 and ail proceedings in Court were stayed. The Board decided that by reason of subsequent amendments of the law. the question of the liability of the applicant under the mortgage could be re-opened in spite of the decision of the High Court. It referred to Section 26G of the Bengal Tenancy Act, as amended, and Sections 18(5) and 19(1) (c) of the Bengal Agricultural Dcbiurs Act, and held that since mortgages ay conditional saie had now been brought within the purview of Section 26G and since no mortgagee could keep in possession lands of an agricultural mortgagor tor more than 15 years under either ot the twa Acts, the debt must be held to have been extinguished and the mortgagors were entitled to restoration of the lands. As the mortgages were not agreeable to accept this decision, the Board referred the matter to the Special Board at Alipore which confirmed their decision. The mortgagees made ab application before the District Judge that the order of the Debt Settlement Board might be ignored and the appeal decided in accordance with law. The learned District Judge held that the order of the Debt Settlemept Board could not be disregarded and the appeal must be dismissal. Against that a second appeal was filed and came up for hearing before Chakravartti, J. It was contended that In any event the decision of the Board was wrong in law. The learned judge said as follows :--
'It was next contended that assuming the Board was entitled to refer to other provisions of the Act or other laws, its decision was still wrong, because a mortgage deal was not extinguished by fifteen years' possession of the mortgaged property under Section 19(1) (c) of the Bengal Agricultural Debtors Act and that under Section 26G of the Bengal Tenancy Act, it was not st extinguished in the case of a mortgage by conditional sale.
I may point out at once that this contention, even if correct would not serve the Appellant's purpose, for, it would only establish that the Board's decision was wrong in law. But the error would not be an error of jurisdiction and the Board's decision would not be a nullity.'
The learned judge then proceeded to consider the legal proposition involved and said as follows :--
'I am accordingly of opinion that the Board was not right in holding, merely on tha basis of Section 19(1) (6) of the Bengal Agricultural Debtors Act and Section 268 of the Bengal Tenancy Act, that the debt had ceased is exist.
But as I have pointed out already, this error of the Board would not make its decision a nullity, nor entitle the Court to disregard the decision. The remedy of the mortgagee lay in an appear under the special Act. So tar as the appeal before the District Judge was concerned, Section 34 was bound to take effect that the appeal was found to be treated as having abated, the moment tht Board's decision was given and so long as it stood.
25. The next case to be considered is a decision at P. N. Mookerjee J. Corporation of Calcutta v. Krishnamohan Kundu : AIR1954Cal254 . The facts in that case were as follows: In November, 1936 the Corporation of Calcutta recovered seven preliminary charge decrees against the Repondents or their predecessors, for consolidated rates under the Calcutta Municipal Act. These decrees were made final sometime in September, 1937 and they were put into execution in March, 1940. In 1942, two of the judgment debtors applied before the Mathurapore Debt Settlement Board for settlement of their debts and the Civil Court stayed further proceedings upon receipt of a notice under Section 34. Eventually, an Award was made by the Board in favour of the applicants and the execution was struck off. Three years later, the decree holder Corporation prayed for fresh execution of the several decrees mentioned above. And alternatively under Section 151 of the Code of Civil Procedure read with Section 181 of the Indian Limitation Act, for reviving the execution case on the ground that the Board's Award was without jurisdiction, as the Corporation's dues for rates were not 'debt' within the meaning of the Bengal Agricultural Debtors Act. It was held by the courts below that the Board's Award was not a nullity and the execution cases should proceed. Other directions were made which are not relevant to be considered. Thereupon, there was an appeal to this Court. One of the points raised was that the decrees in question being admittedly for Municipal rates, the Board's Award in respect of them was without jurisdiction. Mookerjee, J. said as follOWS:
'On the first question, the amended Section 20 of tne Bengal Agricultural Debtors Act furnishes a complete answer. Under that section, the Board has exclusive jurisdiction to decide whether a particular liability is a debt or not within the meaning of the Act. No other tribunal had any Jurisdiction in the matter (vide : AIR1945Cal417 ). The Board's decision on the point may be right or wrong but that is not open to question before the Civil Court. (Vide the case of Brij Raj Krishna v. Messrs. S. K. Shaw and Brothers : 2SCR145 . The Appellant contends that there is nothing to show that the Board has decided that question. That is not strictly correct as the Award has been made by the Board in respect of the Corporation's dues as well and the making of the Award involves a decision that the liabilities covered by It are debts within the Bengal Agricultural Debtors Act. .... I accordingly, held that the learned Subordinate Judge was right In his conclusion that the Board's Award was not a nullity and in proceeding on that footing.'
26. In the background of these decisions, the questions formulated may be answered. The two questions formulated are really one, because the correctness or othewise of the decision in : AIR1944Cal401 would depend upon the answer to the first question. Now, the question postulates that the Bengal Agricultural Debtors Board has determined that the liability was a debt. The question asked is whether under such circumstances It is open to a Civil Court to hold that there is no liability at all. I have already pointed out the relevant sections in the Act. Under Section 18, it is for the Board to decide any dispute as to the existence of any 'debt' and the amount thereof. When the Board has made such determination, the decision cannot be questioned in any Civil Court or in any other manner than what is provided In the Act. This section is to be read together with Section 20. This Section 20 again is to be considered before the amendment of 1940 and after the amendment. Before the amendment, it was provided that where a question arises as to whether a person is a debtor or not the Board snail decide the matter. This appears to have left a loophole, it was held that a Civil Court had still the jurisdiction to de-termine whether a particular liability amounted to a debt at all. The way it was postulated was as follows: The assumption of jurisdiction by a Debt Settlement Board depended upon the question as to whether a debt existed or not. The debt that had to exist for the purpose of determining the jurisdiction was a special kind of a debt contemplated by the Act. The word 'debt' is defined in Sub-section (8) of Section 2. It must be a debt incurred prior to the 1st day of January, 1940; It must be a debt incurred by an agriculturist, that is to say, whose primary means of livelihood is agriculture and who is a raiyat or art under-ratyat or cultivated lands himself or by members of his family or by hired labourers or by adhiars, bargadars or bhagdars. Such a debt would not include the seven items mentioned in Subsection (8) of Section 2. For example, it would not include a contingent liability or an amount recoverable as a public demand, or any debt due to a scheduled Bank or a tax or rate due to a municipality or Union Board. Thus, the kind: of debt which would bring the matter within the jurisdiction of the Debt Settlement Board is a particular kind of debt and it has to be determined whether such a debt exists or not. Every debt is a liability but every liability is not a debt. It was therefore held that even when the Board, which is a court of limited jurisdiction, decided that a debt existed, founded upon a liability, it is still open to the Civil Court to determine whether the liability itseit existed or not, or amounted to a debt as defined by the-Act. This is said to be based on the principle that was enunciated In the leading case In . Briefly speaking, the principles to be applied are as follows: Where a tribunal exercises a subordinate or special jurisdiction, then the condition essential to give It jurisdiction must be complied with. Such a condition must in fact exist, and such a court, by deciding collaterally but erroneously, that it had jurisdiction, could not acquire jurisdiction. In other words, in such a case, the Civil Court would have the power to go into the matter and determine the question as to whether the court of limited jurisdiction has in reality got jurisdiction or not, and as to whether the preconditions for acquiring jurisdiction have been satisfied. But ft has also been held that there is nothing to prevent the legislature from conferring jurisdiction exclusively on a court of limited [uris-diction, and thereby exclude the jurisdiction of the civir Court. As long as Section 20 was not amended, there was certainly room for saying that the Civil Court had jurisdiction to examine the question as to whether the liability upon which an alleged claim was founded amounted to a debt as defined under the Act, so that the Debt Settlement Board would acquire jurisdiction. As I have stated above, in 1940 Section 20 was amended. The power conferred upon the Board by the amendment was to determine whether a liability was a debt or not. The Board had already the power to determine conclusively as to whether a debt existed. Now the power was conferred upon it to decide as to whether a liability was a debt. Under Section 18, the exclusive power of determining the existence of a debt has been conferred on the Debt Settlement Board. This exclusiveness has been laid down in the section itself, because Sub-section (4) lays down that the decision of the Board in this respect shall not be questioned in any civil court. In Section 20, however, there is no specific provision to that effect. The question is whether the intention was to confer exclusive jurisdiction upon the Board by the amendment, to determine the existence of the liability as well. In 49 Cal WN 592: (AIR 1946 Cal 53) Mukherjea J. dealt with this amendment and said at follows:--
'The law has since been changed, and under Section .20 of the amended Act, it is for the Debt settlement Board to decide whether the liability amounts to a debt within the meaning of the Act, and the Civil Court, therefore is not competent to question the decision of the Debt Settlement Board in this respect.'
27. Therefore, Mukherjea, J., was upholding the exclusive jurisdiction of the Board to decide that a liability was a debt. Having done so however, he left the question open whether the amendment authorised a Debt Settlement Board to determine whether a transaction by way of a sale could create a liability at all. The learned Judge referred to Bazlar Rahaman's case (supra) but stated that the question was not free from doubt. In the case in : AIR1954Cal254 . (Supra) Muhherjee J., held that under Section 20 of the said Act
'The Board has exclusive jurisdiction to decide whether a particular liability is a debt or not within the meaning of the Act ... The Board's decision on the point may be right or wrong, but that is not open to question before a Civil Court.'
Therefore, the position is as follows: The debt Settlement Board has the exclusive jurisdiction to decide as to the existence of a debt. It has also now the exclusive jurisdiction to decide whether a liability is a debt or not. In Bazlar Rahman's case, 48 Cal WN 699 : (AIR 1944 Cal 401) (supra), Biswas J. held that this implied that the Board had exclusive jurisdiction to decide whether the liability existed or not, I do not see how it can be otherwise. Since every debt Is a liability, there must be, in every case which comes within the jurisdiction of the Board, a liability and there is exclusive jurisdiction to decide whether this liability is a debt. I think that it is carrying matters too far to say that even now the Board has no right to decide the existence of a liability or that such jurisdiction is not exclusive. Prior to the amendment, the jurisdiction of the civif court was upheld upon the line of reasoning that the Board could decide exclusively the existence of a debt but still the nature or existence of a liability could be determined by the Civil Court. This lacunae was sought to be remedied by the amendment. The whole question is whether it was intended by the legislature that the board should determine the existence of a liability and whether that power should be exclusive. In my opinion, in view of the amendment, It can no longer be said that the Board has not got that power. In Bazler Rahaman's case, 48 Cal WN 699: (AIR 1944 Cal 401) (Supra) Biswas J., pointed out that if the Board had exclusive jurisdiction to decide whether a liability was a debt and yet could not decide the existence of a liability then in every case it would be possible to defeat an application by merely asserting that there was no liability and the Board could no longer determine the existence of it. It is true that the authorities say that exclusive jurisdiction is a matter that must be clearly stated and not left to mere inference I do not think that it could be made more clear. The whole object of the Act was to confer exclusive jurisdiction to the Board and exclude the jurisdiction of the civil courts In such matters. This is obvious from the preamble to tne Act and the scheme of it. I admit that the scheme of the Act and the provisions thereof are not one which have gained praise from anybody. Indeed, the Act has been deprecatingly nicknamed as the 'BAD' Act. its provisions are overstringent and it is extremely doubtful whether it really resulted in conferring any benefit on agricultural debtors. But these are questions of legislative policy and we are not concerned with them. The problem is to find out the intention of the legislature, and decide as to whether a particular provision was meant to confer exclusive jurisdiction or not. Ameeer AN J., in Baijnath Thama-kuwalla's case, 42 Cal WN 481: (AIR 1938 Cal 455) (supra) admitted that in normal circumstances the Civil Court has jurisdiction to decide whether a special court or a Court : of limited jurisdiction has, or has not jurisdiction. He however pointed out that there is no inherent obstacle to the court of special jurisdiction being vested with exclusive or final jursdiction. Having considered the provisions of the Act, the learned Judge was of the opinion that this Act contemplated the creation of a separate set of courts for the decision of a civil claim against a particular kind of agriculturist. There can be two things, a liability and a debt. Every liability is not a debt and therefore, when exclusive jurisdiction is given to the Board to hold that a liability is a debt, such jurisdiction would be meaningless if it had not exclusive jurisdiction to decide as to the existence of the liability itself. The exclusiveness ot its jurisdiction would, therefore, be limited to cases where the liability is admitted. That could not have been the object of the amendment made in Section 20. tt is because this exclusive jurisdiction might cause hardship that the operation of the Act has been limited to debts incurred before the 1st day of January, 1940. In reality, the Act has now been abrogated, except in cases like the present one. The provisions of Section 33 lay down that when an award is passed and any debt is payable under an award, no civil court shall entertain a suit etc. in respect of it. When an application under Section 8 has been made, notice is served under Section 34 and at once all proceedings In a civil court have to be stayed. All this goes to establish the exclusive jurisdiction of the Board and the intention of the legislature to confer such exclusive jurisdiction. Under Section 20, the Board can determine whether a liability is a debt or not and under section 18 there is exclusive jurisdiction to determine the existence of a debt. This would be mean-ingless if it is still open to the Civil Court to determine whether the liability itself existed or not. In my opinion, Biswas J. came to the right conclusion in holding that as a result of reading the provisions of the Act,as it now stands, it could be said that there was an exclusive jurisdiction in the Board to determine the existence of a liability. As I have stated, it could not have been contemplated that Section 20 would apply only in case of an admitted liability. In most cases, liability is not likely to be admitted. Therefore, it is unlikely that such a drastic amendment should be intro. duced if the ambit of the section was almost nil. Let us look at it from another point of view. Previous to the amendment, the Board could decide the question as to whether a debt existed. The civil court said that a debt could onty be based on a liability and since Section 18 merely gave the board exclusive power to determine the question as to whether a debt existed, it had no exclusive power to determine whether a liability existed upon which the debt was founded. As all residuary powers must be taken to remain in the Civil Court, it had jurisdiction to determine whether a liability existed. This having been pointed out in certain judicial decisions, it was found necessary to amend the law. See 47 Cal WN 239 : (AIR 1944 Cal 88) (Supra).
28. By the amendment, it was intended to cover this lacunae. It was obviously the intention of the legislature to give power to the Board to decide exclusively, not onty as to whether a debt existed but as to the existence of the liability itself, upon which the debt was foundeo. But if we interpret it as meaning that the Board could only determine whether a liability was a debt or nor, but not the existence of a liability, then the lacunae is not mended at all. There is no sense in exclusively determining whether a debt existed and whether a liauituy is a debt or not, if the very existence of the liability coum not be so determined. It Is then argued that 'lie Board could determine the existence of a liability, but it had no exclusive power to do so. That does not seem to me lo be scheme of the Act. It may be that express words conferring exclusive jurisdiction do not appear in Section 20 as they do in Section 18. But Section 20 includng the amendment, Is obviously linked with Section 18 and the Intention was that the Board should hold whether a liability existed and whelher it was a debt, and once that was determined the resultant award could not be questioned in any civil court. Indeed, that appears to me to be the scheme of the Act. The purpose for which the ftct was brought Into existence was to relieve agricultural debtors of a certain hind from the crushing burden of their debts, which during the passing of centuries had become so acute as to call for drastic relief. The evil was so great that it called for a heroic remedy. That is why the Act contains such drastic measures. Whether this poncy on behalf of the legislature was a sound one or not, is a matter of opinion. In fact, it gave rise to a great controversy and ultimately it was found that the Act did not In fact work out for the benefit of the class of persons for which it was intended. That is why it has now become almost defunct and the debts covered by the Act are debts incurred prior to the 1st January, 1940. But, the intention in promulgating the Act was certainly to exclude the jurisdiction of the Civil Courts and create a court of summary Jurisdiction which would act swiftly, summarily and conclusively. The idea was to settle the debts of these unfortunate agrlcuftural debtors, by a court of summary jurisdiction, swiftly, and once for all. If any proceeding was to be taken it was to be taken within the four corners of the Act, which provide for appeals and revisions. It was not Intended that the Civil Courts should go on Interfering with the proceedings before the Board, which would inevitably give rise to a multiplicity of proceedings ana thus defeat the very object of the legislation. This is an aspect which was clearly in the minds of the court in the Bench decision in 51 Cal WN 140: (AIR 1947 Cal 2495. There also the facts were similar to the present case, and questions were raised about a mortgage by condititnal sale, application of certain sections of tne Bengal Tenancy Act, and so forth. These questions are certainly difficult and complicated questions, and in fact, having discussed the question of liability, Chakravartti, J. (as he then was) decided that the Hoard nan come to an erroneous decision on a point of law. He however held that such an error would not make the decision of the Board a nullity, nor entitle the civil court to disregard the decision. The remedy of the parly aggrieved lay in an appeal under the Act. This view was also confirmed by Mukherjea J. In : AIR1954Cal254 . In that case, the Board published an award in respect of dues in the nature of corporation rates and taxes, which are expressly excluded from the jurisdiction of the Board. Yet it was held that the Court had no right to interfere. I now come bach to the decision of Bisvm, J-, in Bazler Rahaman's case, 48 Cal WN G99; (AIR 1944 Cal 401). There also, toe tacts were very much like the instant case. The question was whether a particular transition was a mortgage by a conditional sale cr not. The Board came ts certain conclusions and made an award thereon, it was held that this was conclusive and the Court could not Interfere. The learned Judge pointed out that whelher a transaction was a mortgage or a sale may be, and very often Is, a very difficult question, even for a civil court to decide, and it was perhaps not desirable to leave such a question for determination by a lay tribunal like a Debt Settlement Board, it was, however, rightly pointed out that this was a matter of legislative policy with wtiicn the courts were not concerned. In my opinion, the conclusion reached was a correct one and trie case in 48 Cal WN 399: (AIR 1944 Cal 401) was correaly decided. I regret that I am unable to agree with the majority decision in this case. Coming now to the facts of this particular case, we find that the matter went to the Debt Settlement Board and the dispute raised was whether a patta and ekrarpama constituted a mortgage by a conditional safe. The Board held that the transaction between tne plaintiffs and the defendants amounted to a loan and there was nothing due from the debtors to the creditors. In other words, it was decided that there was no liability and no debt. Against this, there was an appeal and revision lender the Act and both failed. There was an application under Section 115 of the C. P. C. which also fsiled. Thereupon, this suit was filed. The suit failed before the learned Munsif and the Lower Appellate Court but succeeded on second appeal when Chander J., went into the question of the liability and the debt and held that under the law no mortgage by conditional sale had been created and therefore, there was no question before the Board as to whether there was a debt or not. In other words, the learned judge decided both the question of liability as well as the debt. In the further appeal, the referring Bench supported the view taken by Chunder J. I regret that I am unable to accept this view and in my opinion, the decisions of the learned Munsif and that of the first Appellate Court were correct and the decision of Chander J. in second appeal was not correct and should be set aside. In my opinion, question No. 1 should be answered in the negative and question No. 2 should be answered in tha affirmative. In my opinion, the appeal should be allowed and the decision of Chunder J, should be set aside but that there should be no order as to costs.
P.H. Mookerjee, J.
29. This Reference is about a aecade (sic) was made In February, 1953. The point involved was, primarily, one under the Bengal Agricultural Debtors Act. That statute has practically lost all importance and this Reference also has practically lost all utility except, possibly, for the in-stant case and certain fundamental principles, on which depends the answer hereto. There is no doubt, however, that the Reference was fully justified and the recommenoa-tion of the Referring Bench that it should be heard by a Full Bench of 5 (five) Judges shows a foresight and is amply borne out, when, eventually, the matter has to be decked by this Full Bench by a majority.
30. The suit, which has given rise to this Reference, was instituted in the year 1944. It was a suit for a declaration that a certain award, passed by Debt Settlement Board, was without jurisdiction. By the award in question, the Board field that a Potta (lease) and an Ehrarnama (Agreement to reconvey) formed one transaction and consti-tuted a mortgage and created a relationship of debtor and creditor between the parties, and, upon that finding, It settled the amount of the so-called debt. The plaintiffs questions the jurisdiction of the Board to entertain the proceeding, involving a Pottah and an Ekrarnama, and upon that footing, brought the present suit, after an unsuccessful attempt before the Appellate Officer and the District Judge under Sections 43 and 40A respectively of the Bengal Agricultural Debtors Act, and, thereafter, before this Court under Section 115 of the Code of Civil Procedure, to have the gain award set aside in revision. The suit was dismissed by the trial Court upon the view that the Board's decision (award) was intra vires and final and could not be questioned in the Civil Court and the said dismissal was upheld and attirm-ed by the learned Additional Subordinate Judge on appeal, On second appeal by the plaintiff, the above dismissal or the suit was set aside by Chander J., and the case was directed to be sent back to the trial court tor a decision on the merits. Chunder J., however, granted leave to the an appeal under Clause 15 of the Letters Patent and, thereupon, the instant appeal was filed by the defendant. The appeal first came up for hearing before their Lordships Rama Prasad Mookerjee and Renupada Mukherjee, JJ., who disagreed with the Bench decision in 48 Cal WN 699: (AIK 1944 Cal 401), and referred the appeal to a Full Bench for a final decision, under rule 2 of Chapter VII of the Appellate Side Rules, by an appropriate Order of Reference dated February 6, 1953, formulating two questions of law for decision, as follows:--
(1) Whether the question as to the existence or otherwise of a liability can be determined by a Civil Court after it has been decided by a Bengal Agricultural Debtors Board that the supposed liability was a debt?
(2) Was 48 Cal WN 699: (AIR 1944 Cal 401), correctly decided?
31. The answer will depend, primarily, on the true construction of Section 20 of the Bengal Agricultural Debtors Act, as it now stands after amendment. But that construction will be largely aided by the particular statute's own history and context and the context of several other provisions of the said statute -- in particular, Sections 2(8), 2(9), 18, 20 (before and after amendment) 25 and 34, and, in a way Section 2(10) also-- and also of the prevailing state of the law or judicial authority at the time of the aforesaid amendment. On the aforesaid true construction of Section 20, again, certain fundamental principles will have to be borne in mind and applied carefully for a proper ana complete answer of this Reference.
32. In the premisss, it is necessary to set out first the relevant part of the above statutory provisions, includ-ing the aforesaid Section 20, both before and after amendment, and I proceed to do as follows :--
'Debt' includes all liability incurred prior to the 1st day of January, 1940, of a debtor in cash or in kind, secures or unsecured, whether payable under a decree or order of a Civil Court or otherwise, and whether payable presently or in future, but does not include the following.' (here follow certain exceptions, not material for our present purpose and not quoted accordingly).
'Debtor' means a debtor whose primary means of livelihood is agriculture and who (a) is a raiyat or an under-raiyat or (b) cultivates lands himself or by members of his family or by hired labourers or by aduiars, bargaoars or bhagdars; and includes a group of persons who join in making an application under the provisions cf Sub-section (1) of Section 9.'
'Loan' means a loan whether of money or in Kind, and includes any transaction which Is, in the opinion of Board, in substance, a loan.'
(1) tf there is any doubt or dispute as to the exist-ence or amount of any debt, the Board shall decide whether the debt exists and determine its amount :
Provided that a decree of a Civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt as between the parties to the decree.
(2) Before passing any order under Section 19, 21 or 22, the Board, after considering the statements or dent, submitted under Section 11 and Sub-section (1) of Section 13, and the evidence produced, if any, after having given an-opportunity to the parlies to appear and bo heard, shall, in accordance with the rules, made under this Act, determine, in respect of each debt, the amount of the principal and the amount of the arrears of Interest due thereon from the debtor up to the date of such determination.
(4) When the Board has determined under Sub-section (2) the amounts of the principal of a debt due from a debtor and of the arrears of interest due thereon, the decision or the Board in this respect shall not be questioned in any Civil Court or in any manner other than that provided is this Act.
'Section 20 (old).
If any question arises in connection with proceedings before a Board under this Act, whether a person Is a debtor or not, the Board shall decide the matter.'
'Section 20 (New).
If any question arises in connection with proceedings before a Board under this Act, whether a person is a debtor or not, or whether a liability is a debt or not, the Board shall decide the matter.'
(1) An award shall be in the prescribed form and shall Include the following particulars :
Clause (c). Details of ail debts which have been determined under Section 18 or regarding the amount of which there is no doubt or dispute.
(3) From the date of the signing of the award under Sub-section (2), It shall, In supersession of all previous decisions of a Civil Court in respect of the debts, mentioned in it, the binding on the debtor and his creditors and we successor in interest of such debtor and creditors.'
When an application under Section 8 or a statement under Sub-section (1) of Section 13 includes any debt in respect of which a suit or other proceeding is pending De-fore a Civil or Revenue Court, or when &n; appellate officer entertains an appeal or a District Judge or an Additional District judge entertains an application for revision, relating to such a debt, the Board or the Appellate Officer or the District Judge or the Additional District Judge, as the case may be, shall give notice thereof to such Court in the prescribed manner, and thereupon the suit or the proceed-ing shall be stayed until the Board has either dismissed the application in respect of such debt or made an award thereon or until the Appellate Officer has disposed of such appeal or the District Judge or Additional District Judge has disposed of such application for revision and If the Board or the Appellate Officer or the District Judge or the Additional District Judge includes any part of such debt in Clause (d) of Sub-section (1) if Section 25 In the award or decides that the debt does not exist the suit or proceeding shall abate so far as it relates to such debt.
Explanation : For the purpose of this section an execu-tion proceeding for the sale or any property shall be deemed to be pending and the debt In respect of which the sate takes place shall be deemed to exist until such sale becomes absolute.'
33. It is also necessary to set out the relevant judicial decisions, both before and after the above amendment, with appropriate comments thereon.
34. It may be recalled, at this stage, that, initially, the above aspect of the matter came up to this court under this Act with reference to the allied Section 34, which has already been quoted. It was held, in a series of cases, vide Jagabandhu Saha v. Rashmani Dassya, 41 Cai WN 924, Nrisingha Chandra Nandi Choudhury v. Kedar Nath Choudhury : AIR1937Cal713 , Mamnara Mohan Roy Talukdar v. Bipin Behari Talukdar, 41 Cal WN 1366, Jagabandhu, Gobinda Chandra, Phobhat Chandra Roy Choudhury, Firm v. Bhusai Byapari : AIR1938Cal256 , Ramendra Nath Mondal v. Dhananjoy Mondal : AIR1938Cal261 and Jatindra Monan Mondal v. Ilahi Bux, 42 Cal W S 530, that the notice under the aforesaid section (Section 34) couid operate only on a proceeding in respect of a debt and if the dem in question had been satisfied, for example, by execution sale, before the receipt of the said notice, the section would no longer apply. The gist of these decisions, thus, clearly points out that the existence of the debt was necessary to give the Board jurisdiction to act under the aforesaid section. It was also ruled that the Civil Court had jurisdiction to decide whether the debt existed or not and to act upon its own view of the matter. This is quite in consonance with the view that, prior to the amendment of Section 20, the Board had no exclusive jurisdiction on the point.
35. Originally Section 20 came up for consideration in a number of cases before this Court and it was held that, while the Board, under that section, had exclusive jurisdiction to decide whether a person was a debtor or not (vide : AIR1938Cal402 ) and : AIR1938Cal375 , it had no such jurisdiction even to decide whether a particular liability was a debt or not (vide Satish Chandra Kundu v. Naogaon Union Bank Ltd. : AIR1939Cal298 , Revati Mohan Roy v. Bhik Chand Bhuian : AIR1939Cal343 and Hemendra Nath Roy v. Puma Charan : AIR1940Cal549 ). It is to be noticed that all the above cases were cases of admitted liabilities (vide also Anukul Chandra Dutta v. Narendra Nath Chatterjee and others, 98 Cal LJ 17), although there was dispute as to the character of the liability, namely, whether it was a debt or not (see : AIR1942Cal552 ), of as to the status or character of the person, owing tfie said liability, namely, whether he was a debtor or not Stress was laid on the wording of the section, as it stood at the time, namely, that it expressly authorised the Board to decide whether the person was a debtor or not but not the other question (whether the liability was a debt or not), however, much it was implied in the said decision and howsoever much it was necessary to decide ft for the due and full discharge of the Board's duty or function under tne statute, namely, settlement of debts. Even the sufficiency of mere express authorisation for the purpose was doubted (vide Jnanendra Narayan Singh v. Momena Khatoon, 58 Cal WN 925)). I do not think (hat the actual decision either in : AIR1938Cal455 or 43 Cal WN 332, or, even In : AIR1947Cal249 , on wnicn strong reliance was placed on behalf of the appellant, really gees to the contrary or beyond the above, although tnere are observations in the said judgments, which may suggest a wider exclusive jurisdiction for the Board. On the original Section 20, that is, prior to its amendment by the in- corporation of the phrase 'or whether a liability was a debt or not', this was the state of judicial opinion in the country and, in its context and in the light of the principle of construction, underlying the said trend of judicial decisions, must be judged the amendment and its effect. The section, as we have seen above, was amended by inserting therein the additional words 'or whether a liability is a debt or not' which conferred express -- and, so exclusive, on the above principle of construction -- jurisdiction on the Board to decide the said question too (vide : AIR1945Cal417 ), but it went no further. This was the view, favoured in Dinanand Singh Jha v. Sm. Hazi-mannessa, 48 Cal WN 712 and Surendra Nath Chakravarty v. Haran Chandra Chakravarty, 49 Cal WN 592 : (AIR 1946 Cal 53), and by the referring Judges here. But in the earlier decision : AIR1944Cal401 , a more extended view was taken which, obviously, militates against the above principle of construction and it is this difference, which has led to the present reference.
36. On the allied Section 18, prior to the above amendment of Section 20, the opinion was practically one-sided and uniform and it was held (vide : AIR1939Cal298 ), which is the leading decision on the point; see also Matilal Saha v. Chandra Kanta Sarkar : AIR1947Cal1 ), that the said decision (section 18) expressly authorised the Board only to determine the amount of tha debt, involving within it determination of the question of extinction, -- and, in that sense, existence or non-existence. -- of the debt, but no greater effect or significance and no wider connotation was given to the expression 'existence' -- or 'existence ana amount' -- of the debt as used in the section This was, apparently accepted by the Legislature, as, in spite ot the above prevailing judicial opinion on the section, it was not touched or amended, when Section 20 was amended, or, even on the other occasion, when the Act again came UP before the Legislature, thus confirming, at any rate, that the Legislature did not intend to alter or extend the above construction beyond what can be held to be involved in the embracing decision on the question, whether a particular liability was a debt or not, within the expression 'existence' of the debt, -- in other words, beyond permitting and empowering determination of the question whether a debt, as distinguished from liability, existed.
37. Lastly, I would state the fundamental principles, referred to above, as contained in the leading authorities on the subject, namely,--
(1) 'When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first esta-blished by Act of parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state ot things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jursdiction to determine whether the preliminary state ot facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislatures are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever Jurisdiction they give them, whether there shall be any appeal from their decision, or ootherwise there will be none. In the second of the two eases I have mentioned it is an erroneous application of the. formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal, being given, there is no appeal from such exercise of their jurisdiction.' (vide Per Lord Esher, M. R. in (1888) 21 QBD 313 al pp. 319-320; see also : 2SCR145 ) where the above passage is quoted with approval), and
(2) 'It is settled law that the exclusion of the Jurisdiction of the Civil Courts is not to be readily interred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even it jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure (vide per Lord Thankerton).
38. Having indicated the approach, I proceed at once to the merits of the problem before us.
39. Now, the statute in question (The Bengal Agricultural Debtors Act) is intended, as its preamble shows, 'to provide for the relief of indebtedness of agricultural debtors and. to amend the law governing the relations between the agricultural debtors and their creditors', and the entire jurisdiction under the Act and of the Debt Settlement Board thereunder is founded on 'debt' and 'debtor', as defined therein. Throughout the statute, the accent is on 'debt' and 'debtor' and the jurisdiction of the Civil Court is ousted only in respect thereof. The two terms 'debt' and 'debtor' are no doubt correlative and one-pre-supposes the other, but, of them, 'debt' is more basic or fundamental. A debtor must own a dsbt -- although every person, owning a debt, may not be a 'debtor' under the Act, -- and this term 'debt', as defined in the statute, may thus be regarded as the sine qua non for the application of the statute, and, upon its existence, depends the applicability of the Act and the jurisdiction of the Board (vide Srikanta Kumar v. Atul Krishna Biswas : AIR1945Cal214 , and Rahjm Box lalukdar v. Kanak Lata Chaudhurani, 51 Cal WN 151 : (AIR 194/ Cal 255)). A debt signifies a liability in cash or in Kind, that is to say, a sum, quantity or amount. Its definition under the statute (vide Section 2 (8)) points nothing to the contrary. On the other hand, it stresses this aspect, even though the definition clause purports to be an inclusive one, by the contrast it provides in its inclusive and non-inclu-sive or exclusive parts. The accent here is on 'liability in cash or in kind', that is, a sum, quantity or amount, --and this is hightened by the adjectival phrase 'payable', to which under the definition, it is unequivocally referable, --and this liability is the foundation of the Board's jurisdiction and Jurisdiction under the Act and the Board's duty and function under the statute is to settle the debt or the liability, constituting or founding the same.
40. It is clear also that the Act has given the Goard, for achieving its primary purpose of settling the Indebtedness of agricultural debtors, express power or jurisdiction to decide 'whether a liability is a debt or not' and 'whether a person is a debtor or not' and, to that extent, it may be said to have given the Board exclusive jurisdiction in the matter, that is, in the matter of determination 'whether a liability is a debt or not' and 'whether a person is a debtor or not', so far as they bear upon the foundation of its jurisdiction, which depends on the existence of 'debt and 'debtor'.
41. The function of the Board is, as seen above, to settle the debts of debtors -- agricultural debtors, -- as defined in the statute. That implies settlement of the liability, underlying the same, which, necessarily, involves or requires determination of the existence or otherwise of such liability. Now, It is well settled that a tribunal, whatever its nature, has jurisdiction to decide every question, which it Is relevant or appropriate or necessary for it to decide for discharging its duties and functions under the law. It is undeniable, then, that a Debt Settlement Board has jurisdiction to decide whether an alleged liability exists. The more immediate and pertinent question, however, is whether such jurisdiction is exclusive. A decision as to the existence of the liability would, undoubtedly, be relevant and appropriate, -- and necessary too, -- before taking up the question of its character or the status and character of the person under that liability. It would be necessary, as, otherwise, the whole enquiry would be unmeaning, fruit less and purposeless. But the point is whether this relevancy or implied necessity confers exclusive jurisdiction in the matter. In law, well-marked and well-recognised distinction exists between incidental or collateral jurisdiction and direct and exclusive Jurisdiction. And that jurisdiction projects itself on the character of the decision, namely, whether it is incidental or collateral or direct and exclusive. It is a matter of some difficulty, in many cases, to decide on this aspect and the present case is no exception. Indeed, this is a point, on which judicial opinion is sharply divided and, sometimes even the same learned Judge has not been able to maintain consistency.
42. At this stage, it is convenient to recall the history and context of the overbearing provision of the statute, namely, Section 20. As seen above, in its original form, it expressly empowered the Eoard to decide 'whether a person is a debtor or not'. This envisaged also decisions on the question as to 'whether any liability existed or no! and whether the particular liability is a debt or not, (vide in this connection the definition of 'debt' and 'debtor' in the Act in sections 2 (8) and 2(9)), Gut decisions on such questions were held to be incidental on all occasions except, possibly in : AIR1938Cal455 , where Ameer All, J. and Biswas, J. appear to have made some contrary observations. Thereafter, the Act was twice before the Legislature and, though on one of those occasions, Section 20 was amended by expressly authorising the Board to decide 'whether the particular lability is a debt or not', the decision on the question of existence of the liability was not expressly brought within the purview of the Board- It is to be remembered here that, in the above prevalent state of judicial opinion, the express conferment of the jurisdiction on the Board was held by the Courts to be the sine qua non of exclusive jurisdiction and, in spite of thai, the express provision was extended only to the decision of the question whether the particular liability was a debt or not and the different position, indicated in the said decisions, in regard to the other question, namely, as to the existence of the liability, was not touched. This may well be legislative recognilion, adoption and approval of the said point of view, adumbrated and emphasis-ed in the aforesaid decisions. It has, no doubt, been urged before us that exclusive jurisdiction on this question had already been provided in Section 18 of the Act, hut It cannot be overlooked that the judicial opinion was to the contrary in spite of the said section and, even then, the Legis-lature did not touch it either by a suitable amendment of Section 18 or further amendment of Section 20. To my mind, this settles the true construction of Section 20 to the effect that it does not confer or involve any exclusive jurisdiction in the Board in the matter of decision on the question of existence of the liability and the resulting position is not affected by Section 18, which, notwithstanding the possible theory of the Board's exclusive jurisdiction in the matter, was rejected by the Courts and the Legislature did not demur. Indeed, it seems to me that this absence of demur on the part of the Legislature was quite appropriate, as, on a close scrutiny, section 18 would not support the theory of the Board's exclusive jurisdiction in the matter of determination of the existence of the debt, implying, -- and necessarily concluding thereby the question of, -- existence of a liability as distinct from its character or quantum. This will be evident, if it is remembered that a liability may exist and yet a debt may not, inasmuch as to be a debt under the statute, the liability must be of a particular character, namely, as envisaged in the definition clause Section 2 (8); to wit, a liability in cash or in kind payable that is, capable of payment and not falling within the except-ed liabilities even of that scope. The existence of a liability and the existence of a debt are, thus, not synonymous under the statute and the determination of the existence of a debt under Section 18 of the Act may, in the premises, welt embrace and connote only the determination of the character of an implied or assumed liability and nothing more, and it should not, therefore, necessarily, conclude the question of the existence of the liability, that is, OT the existence of any liability whatsoever or at all, so as to give the Board exclusive jurisdiction in the matter, even; assuming that it has, under Section 18, exclusive jurisdiction to determine the point of existence of the debt as distinguished from its quantum or amount. Moreover, it is possible and reasonable to hold also that Section 18 merely gives the Board express and exclusive jurisdiction in the matter of determination of the amount of debt, as mentioned in the marginal note to the section, In vew of Sub-sections (2) and (4), the latter of which, in particular empna-sises and tends to confirm this by ousting the Civil Court's jurisdiction only in the matter of determination of the amount of the debt and the use of two expressions 'existence and amount' may well be explained, in the context, on the theory of ejusdem generis. It is to be rememoer-ed in this connection that Section 18 was in the statute booh along with the unamended Section 20 and, at that time, the prevailing view was that the Board had no exclusive jurisdiction even to decide whether a particular liability was a debt or not, far less the question of existence oT the liability, on which the alleged debt was founded. Existence of a debt in Section 18 was, accordingly, held not to contemplate anything more than this that, on finding that the alleged liability was a debt, the Board could determine whether ft exists and, if so, what is its amount. The amendment of Section 20, conferring upon the Board express -- and, hence, exclusive, -- Jurisdiction to decide whether a liability is a debt or not may, no doubt, justify a wider connotation of Section 18 but, even then, as seen above, it would not, necessarily, involve any exclusive jurisdiction in the matter of determination of the existence of the liability as distinguished from its character or amount.
43. I have said above that the Act applies and the Board gets jurisdiction only when a debt exists, or, in other words, that the existence of debt is the test or foundation of the Act's application and the Board's jurisdiction, I have also held that the Board has jurisdiction to determine the existence of the debt, such jurisdiction not being exclusive or to the exclusion of the Civil Court on the point of existence of the liability, that is, not exclusive except, perhaps, beyond the limit of determination of the character of the liability, namely, whether it is a debt or not. That presents no anomaly or inconsistency, as it is well-known that a tribunal has always jurisdiction to decide whether it has jurisdiction or not. If the Board decides that it has no jurisdiction, the matter ends, subject to the right of appeal etc. under the Statute. In case of a contrary decision by the Board, the matter would still be open to be re-agitated before the Civil Court, whose jurisdiction, not being ousted or excluded, would be retained by it as the repository of residuary or ultimate power or jurisdiction and would override the Board's decision. Again, the view that existence of debt is the foundation of the jurisdiction of the Board and of jurisdiction under the Act and is necessary for the assumption of such jurisdiction is not inconsistent with the view of a permissible 'Nil' award under Section 37-A of the statute or a finding of 'Nil' debt even under Section 8 (vide : AIR1945Cal214 , Golap Jan Bibi V. Sarif Ahmed, 52 Cal WN 103 : (AIR 1949 Cal 127), Sukhendu Bikash Banerjee v. Srish Chandra Ghose, 52 Cal WN 612 : (AIR 1949 Cal 91} and Rajendra Nath Base v. Subodh Gopal Bose, 52 Cal WN 615).
44. 1 do not think also that the definition of 'loan-under Section 2 (10) of the Act, as quoted above, conflicts with or militates against the above view of the law, as, apart from anything else, the said definition defines, the said term for the purpose of the aforesaid Act and thus confines the definition to Section 35 and Section 18 (6), where only the said term occurs, it is significant also to note that the definition of 'debt' in the Act (vide Section 2 (8)) does not mention or refer to loan. Section 2 (10) therefore, defining 'loan', is irrelevant for our present purpose and cannot be used for determining or controlling the aforesaid construction.
45. On the above analysis, the instant case would fall within the first of the two classes or categories, mentioned by Lord Esher in his famous passage, quoted hereinbefore (vide (1888) 21 QBD 313 at pp. 319-320) and the Board's jurisdiction on the point would not be final or exclusive. The same view would also be supported by the extract quoted from the decision of the Judicial Committee in Mask's case (vide ). None of the other sections, dealing with the Board's jurisdiction vis-a-vis the Civil Court, namely, Sections 33, 34, 35, 36 and 37-A militates against the above view and, in this context, the Supreme Court decision in : 2SCR145 , on which also the appellant relied, would be easily distinguishable. Indeed, if the reliance, placed upon sections 18 and 20 and Section 2 (iii), be held to be misconceived and unavailing, as shown above by me, the decision in : AIR1944Cal401 , cannot be supported on its extreme proposition that, in the matter of existence of the liability, the Board's jurisdiction is exclusive and the Civil Court's jurisdiction has been ousted or excluded and it cannot prevail over the Board's and the letter's decision on the point cannot be questioned be-fore the Civil Court. To my mind, that proposition fails on the structure, scheme and language of the statute and seems to be hypertechnical.
46. A word, now, on my own decision, reported In : AIR1954Cal254 , on which, too, some reliance was sought to be placed on behalf of the appellant I am unable to see how that decision can be or any help to the appellant. It is plainly distinguishable, as, in that case, the existence of the liability was admitted and the parties differed only as to its character, that is, on the point whether the said liability was a debt. This was certainly a matter within the exclusive jurisdiction of the Debt Settlement Board under the statute, that is, under the amended Section 20, the Debt Settlement Board has exclusive jurisdiction to decide whether a particular liability is a debt or not. My above quoted decision goes no further and I find nothing therein to support the more extreme view that the Debt Settlement Board has exclusive jurisdiction to decide whether a liability exists or not. No such question arose in the said case cited and I had no occasion to go into it and no word or expression, used by me in my said judgment, can even remotely, suggest that the Debt Settlement Board has exclusive jurisdiction to decide whether a liability exists or not.
47. In the premises, I would hold that, under the Bengal Agricultural Debtors Act, a Debt Settlement Board has jurisdiction to decide whether a liability exists or not but such jurisdiction is not exclusive or to the exclusion of the Civil Court's and the Civil Court is entitled to re-examine the question and pass a final opinion thereon, it and when the matter is brought before it. I would, accordingly, answer the questions under reference, as proposed by my Lord Bachawat, J., and agree in answering tne reference itself by dismissing this appeal and affirming the decree of Chunder, J., remitting the plaintiff's suit for fur-ther consideration and final decision, as directed therein.
48. There will, also, be, in my opinion, no order as to costs either in the reference or in Ihe connected Letters Patent Appeal, as proposed by my Lord, Bachawat, J. On this question of costs, we are unanimous and the possibility and scope of divergent views on the points under reference, as disclosed in our judgments, amply justify our agreed refusal to saddle either party with costs in this Court.
G.K. Mitter, J.
49. I agree with the judgment delivered by my lord Mr. Justice Bachawat and I have nothing to add. LAIK, J.:
50. This is a Reference under Chapter VII of the Appellate Side Rules for the final decision of the appeal by the Full Bench where the following questions have been referred :
(1) Whether the question as to the existence or otherwise of a liability can be determined by a Civil Court after it has been decided by a Bengal Agricultural Debtors Board that the supposed liability was a debt?
(2) Was 48 Cal WN 699 : (AIR 1944 Cal 401), correctly decided?
51. The second question as formulated, was not quite accurate, as the said decision in 48 Cal WN 699 : (AIR 1944 Cal 401), decided three points viz.,
(1) Whether the District Judge deciding an application under Section 40-A of the Act is a Court of a persona designata.
(2) Whether the order of the District Judge was revis-able by this Court.
(3) Whether the Board had jurisdiction to decide botn the questions of liability and debt.
But we are admittedly concerned in this reference only with point No. (3) above and not with the other two.
52. At the outset I join with those of your Lordsnips who would answer the question No. 1 in the affirmative and question No. 2 to the effect that the case was correctly decided in so far as it held that the Board had power to decide in the first instance whether a transaction ever created a liability at all but the case was not correctly decided in so far as it held that the Board had exclusive power to decide that question.
53. Out of respect to my learned brother Sinha, J., who is differing from us, I wish to indicate my views and give my own reasons with sufficient particulars which depend upon a detailed examination of several authorities so that the grounds of difference between us might be known and appreciated. I am aware of the caution with which I should approach the consideration of the question, viz., as to the proper construction of the statute, because of the numerous decisions and because the controversy is unending, which we have been vouchsafed to do it again, in this particular case.
54. Facts are :
In the year 1929, three persons, viz., Krisnnamonl (defendant appellant a gantidar under one Deben Baliav), her husband Boroda Biswas and her husband's elder brother executed a usufructuary mortgage bond in favour of one Hamijuddin (predecessor of plaintiffs Nos. 2 to 8) and one Kafiluddin in respect of C. S. plot No. 3094 and other two plots belonging to her husband and his elder brother on taking a loan of Rs. 300/-. In or about the year 1934-35 (1341 B. S.) Krishnamoni settled with Baser Mondal, the plaintiff respondent No. 1 and with one Chhailuddi Mondal, 1.26 acres of agricultural land appertaining to three plots (out of which portion of C. S. Plots Nos. 967 and 9/8 are in the present dispute) by executing a Mokarari Patta, on a selami of Rs. 100/-. Simultaneously, an Ekrarnama was executed by Baser with a condition to give back the lands to Krishnamoni if the said sum of Rs. 100/- be paid back to him within Chaitra of any year beginning from 1341 to 1347 B.S. On 25th of Chaitra, 1343 R.S. corresponding to 8th of April, 1937, Krishnamoni executed a Mourashi Mokorari Patta (Ext. 1) in favour of Baser, plaintiff No. 1 and the said Hamijuddin, predecessor of plaintiffs Nos. 2 to 6 (respondents herein) and settled 4.70 acres, i.e., about 14 bighas 4 Cottahs and 1 Chittak of land with them in respect of C. S. Plot No. 967 (2.14 acres) 978 (.45 acres) and 3170 (.45 acres) and 3094 (1.57 acres) at an annual rental of Rs. 10-1-6, the seiami being Rs. 853/-. Out of the said selami, a sum of Rs.353/- was paid In cash on that date and the balance was for liquidation of the loan of Rs. 300/- taken in 1929 and a further loan of Rs. 100/- and for re-payment of the sum of Rs. 100/- (selami) taken in the year 1934. On the very same day, an Ekrarnama (Ext. A) was executed by the plaintiffs, with a condition to recovery to Krisnna-moni the lands settled with them provided the said seiami of Rs. 853/- be returned by her in the month of Chaitra of any year during the period of 1344 to 1350 B. S. The plaintiffs respondents continue to possess the lands as settled, on payment of rent.
55. On the passing of the Bengal Agricultural deb-tors' Act, 1935 (Bengal Act VII of 1936 -- hereinafter referred to as the Act) Krishnamoni (defendant, appellant] made an application in the year 1938 before Basirnat Special Debt Settlement Board giving rise to Case No. 45U of 1938 of the said Board praying inter alia for settlement of her debts. On May 14, 1939 the plaintiffs filed objection to the same. The case was then transferred to Basirhat Ordinary Debt Settlement Board. On January 23, 1941, the Board passed an order directing Krisnnamoni (the petitioner) to pay a sum of Rs. 100/-. On April 3, 1941, the said application was dismissed by the Board. Against the said order, Krishnarnoni preferred an appeal to the Appellate Officer, being Appeal No. 36 of 1941-42. which was allowed and the Board's order dated April a, 1941 was' set aside and the case was remanded to uasir-hat Special Debt Settlement Board and the case was thereafter re-numbered as Case No, 15 of 1942.
56. It appears that on May 29, 1942, one P. B. Majum-dar one of the members of the Board, passed an order (Ext. 4) that the alleged debt mentioned in the debtor's (Krishnamoni's) application was not a debt and as the consideration of the application was outside the jurisdiction of the Board, the debtor was at liberty to go to the Civil Court for enforcing the contract. On July 4, 1942, an order (Ext. 4(a)) was passed by the Chairman and two other members of the Board to the effect that the petitioner was an agricultural debtor, that the said sum of Rs. 853/- being a debt under Section 2(8) of the Act was fit to be settled under Section 18 of the Act. Against the said order of July 4, the plaintiff preferred an appeal to the Appellate Officer, being No. 78 of 1942, which was dismissed on February 17, 1943. Against the order of the said Appellate Officer the plaintiffs filed an application under Section 40 of the Act, to the learned District Judge (Rev. Case No. 54 of 1943) which was also dismissed by his order passed on June 10, 1943 (Ext. B). Being dissatisfied, the plaintiffs moved an application under Section 115 of the Code of Civil Procedure to this Court which was also refused.
57. The case thereafter bore the number as Case no. 621 of 1943 and it appears that on December 17, 1943, the Board found a sum of Rs. 701/15A due to the plaintiffs respondents. On June 9, 1944, the Board consisting of the Chairman and three other members (the said Mr. P. B. Majumdar also) passed an order or award (Ext. 4(b)) to the effect inter alia that the transaction was a loan which was no longer outstanding and that nothing was due by Krishnamoni (defendant, appellant) to the plaintms respondents who were directed to give back possession of the land to her by June 15, 1944.
58. On July 11, 1944, the present suit (T. S. wo. 115 of 1944) was instituted by the respondents in the Court of the Munsif at Basirhat, against Krishnamoni, tne defendant appellant, for a declaration that there was no relationship of debtor and creditor between the parties and that the award (Ext. 4(b)) passed by the Board was without jurisdiction and void, that the said Ekrarnama of April 8, 1937 was never acted upon and was not specifically enforceable in a Court of law. It was pleaded that by virtue of the Patta dated April 8, 1937, the plaintiffs respondents became the tenants under the defendant appellant. It was also pleaded that the Patta was not a mortgage bond and the sum of Rs. 853/- was never taken as a loan but was paid towards the consideration or selami for taking the said patta. On February 26, 1946 the learned Mun-sif dismissed the suit on the ground that the same was not maintainable, holding inter alia that the Civi! Court had no jurisdiction to try the same as the Debt Settlement Board had got exclusive jurisdiction under Section 20 of the said Act as amended. The plaintiffs' appeal to the learned Subordinate Judge also failed on the same ground. The plaintiffs' Second Appeal to this Court was allowed by Chander J. on January 17, 1951 and the suit was remanded for trial on the finding that the suit was maintainable and that the Civil Courts had jurisdiction to decide such claim. Thereafter leave was obtained by the defendant appellant under Clause 15 of the Letters Patent to file an appeal which gave rise to Letters Patent Appeal No. 7 of 1951. The said L. P. Appeal was heard by Rama Prosad Mookerjee and Renupada Mukherjee, JJ. who disagreed with its said decision reported in : AIR1944Cal401 and referred the same for a decision by the Full Bench on the questions formulated, as hereinbefore stated.
59. To appreciate the questions referred and in order to decide what actually is the jurisdiction of the Board was how far a Civil Court can have control over such Tribunal constituted under the Act, it would be necessary to reter to certain provisions of the Act and its amendments.
60. The Bengal Agricultural Debtors' Act 1935 came Into force by instalments from July, 1936 in respective districts. The Act was amended five times, once in the year 1940 by Bengal Act Vlll of 1940 (which came into force on July 11, 1940), thrice in the year 1942 by Bengal Acts II, V and VIM of the said year and lastly in the year 1948 by West Bengal Act VII of the said year by which the name of the Act was changed to Bengal Agricultural Debtors' Act 1936 (hereinafter called the Act.)
61. 'Debtor' was defined Inter alia as meaning a debtor whose primary means of livelihood was agriculture Section 2(9)).
62. Barring certain particulars and exceptions which are not material for the present reference, 'debt' was defined as including 'all liabilities of a debtor, in cash or in kind, secured or unsecured, whether payable unctr decree or order of a Civil Court or otherwise. ...' (Section 2(8)). This definition was amended several times but the relevant amendment was in the year 1940 in which the words 'incurred prior to the 1st of January, 1940,' were inserted between the words 'liabilities' and of 'a debtor.' Section 3 provides for the establishment of the Debt Settlement Boards hereinafter called the Boards. Section 7 deals with the provision by which the Boards might be invested with certain powers. The said section after amendment runs as follows:
'The State Government may, by notification, from time to time, empower a Board to exercise all or any of the powers under Sub-sections (2) or (3) of Section 9, Sub-section (2) of Section 13, Cf. (b) or Clause (c) of Sub-section (1) of Section 19, Section 21, or Sub-section (1) of Section 22, and unless so empowered a Board shall not exercise any such powers.'
Section 8 deals with application for settlement of debts.
63. Section 9 provides for the settlement of joint debts and in Sub-section (2) of the said section, it was provided that if the Board, empowered under Section 7, passes order, 'such order of the Board shall not be questioned in any Civil Court or in any manner other than that provided in this Act.' By the Amending Act of 1940 a new sub-section being Sub-section 3 of Section 9 was added which also similarly provides that the order passed by the Board empowered under Section 7 shall not be question-ed in any Civil Court or in any manner other than that provided in the Act.
64. In Section 13 which deals with further statement of debts, it is also provided in Sub-section (2) thereof, that the order passed by the Board, similarly empowered under Section 7, shall not be questioned In any Civil Court or in any manner other than that provided In the Act.
65. Section 18 deals with the determination of theamounts of debts and when the Act came Into forca itstood as follows:
'18(1): If there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount .
Provided that a decree of a Civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt as between the parties to the decree.
(2) Before passing any order under Section 19, 21 or 22 the Board, after considering the statements of debt submitted under Section 11 and Sub-section (1) of Section 13 and after hearing the parties and considering the evidence produced shall, in accordance with rules made under this Act, determine in respect of each debt the amount of the principal and the amount of the arrears of interest due thereon from the debtor upto the date of such determination.
(3) In determining the original principal of a debt for the purposes of proviso (ii) to clause (b) of Sub-section 1) of Section 19, the Board shall determine the amount cf the original loan, after excluding any amount of interest of such loan which may at any time have been included as principal.
(4) When the Board has determined under Sub-section 2) the amounts of the principal of a debt due from a debtor and of the arrears of interest due thereon, the decision of the Board in this respect shall not be questioned in any Civil Court or in any manner other than that provided in the Act.'
66. By the amending Act of 1940 Sub-section 3 of section 18 was omitted and two new Sub-sections., viz., Sub-sections (5) and (6) were added out of which only Sub-section (5) is quoted below which would be relevant for the purpose of the present reference:
(5) 'Notwithstanding anything contained in this Ad or in any other law for the time being in force or in any contract, where a creditor has taken possession on any terms whatsoever of any immovable property of the deb-tor as security for, or in lieu of payment of, any portion of the principal of the debt or any portion of the interest thereon, and where the Court has not pronounced a final decree for foreclosure or has not confirmed a sale held in execution of a final decree for the sale of the properly, the Board shall, in making the determination under Sub-section (2), prepare an account In the prescribed manner of the receipts of the creditor derived from the said property and after deducting the expenses properly incurred by the creditor (of which an account shall similarly fie prepared) either for the cultivation or for the management of the said property, shall credit the sum of such receipts in reduction of the amount, if any from time to time due to the creditor as interest on the original principal cf the debt and, so far as such sum exceeds any interest due, in reduction or discharge, as the case may be, of such original principal.'
67. Section 20 deals with the decision by the Board on the question as to whether a person is a debtor or not. Before the amendment, it stood as follows:
'If any question arises in connection with proceedings before a Board under this Act whether a person is a debtor or not, the Board shall decide the matter.'
By the amending Act of 1940, the words 'or whether a liability is a debt or not' were inserted between the words 'a debtor or not' and 'the Board.'
67a. Section 21 deals with grant cf certificate in respect of certain debts. Section 33 enacts that no Civil or Revenue Court shall entertain a suit, application or proceeding against the Board In respect of any debt mentioned in the said section.
68. Section 34 deals with stay and abatements of suits and proceedings. The said section was substituted by the amending Act of 1940. Section 35 lays down that if the debt is constituted by a decree or a certificate under the Public Demands Recovery Act, the same must not be executed; and as regards pending proceedings under Section 34 it provides that the Board 'shall give notice' of the application or statement before it to the Civil or Re-venue Court concerned and 'thereupon the suit or proceeding shall be stayed.' It was provided further that if the Board included the debt in the amount declared payable by its award or decided that the debt did not exist the suit or proceeding so far as it related to sucn debt 'shall abate.'
69. A new section being Section 40A was inserted by the amending Act of 1940 by which the District Judge was given power to revise the orders of the appellate officer.
70. By the amending Act II of 1942, Sections. 2, 35 and 55 were amended and a new section being Section 37A was inserted. It is curious that neither Section 18 nor Section 20 has been amended by this Act in spite of the judicial interpretations on the said sections which I shall deal with later on. The next two amending Acts, viz., Act V and Act VIII of 1942 did not also amend the said two Ss. 18 ana 20. By Act VIM of 1942, only Section 8 and Section 37A were amended. Lastly, the amending Act of 1948 amends only Section 1(1) and repeals both the Acts II and Vlll of 1942 and the extent of the repeal were the whole of the two Acts.
71. Therefore the fundamental scheme and clear intention of the Act is for complete and beneficent administration of the affairs of an agricultural debtor, burdened or over-burdened with debts and for granting by a comparatively cheap method, relief of their Indebtedness through the medium or machinery of the Boards and tor amending the law governing the relations between the said debtors and their creditors. To effect the said purpose it is necessary in the first instance to ascertain and determine the total indebtedness of the debtors by the Boards and the object of the legislature as expressed in the Act itself, shall be frustrated unless the Boards were given in the first instance final juridiction to determine the total liabilities of the debtor, though it involves a considerable interference with the rights of creditors under the ordinary process of law. The Board or the Special Tribunal has been entrusted with the duty of adjusting a debt of a peculiar kind and has extraordinary powors, viz., that it can do what no Court can do, that is to say, it can even vary the effect of the decrees, but still then it will be in certain cases, as in ire instant reference, under the control of the Court.
72. It is true that gaps might remain in a statute and gaps will always remain, since no one can toresea every way in which the wickedness of man may disrupt the order of society but the fact that there were so many decisions, which I shall presently notice, was due to the reason that the Act was haphazard depending largely on historical accident. It must also be remembered that decisions are not always authority for other cases which are reasonably analogous and are not properly distinguishable. Again in many decisions it is found that there are strong obiter dicta in favour of one view or the other but the ratio of the decision is not there.
73. Coming now to the reported decisions on the Act, which are numerous, it appears as if there was a struggle between the learned Judges for about long 18 years from April 14, 1937 till February 8, 1955 to find out, as to whether the jurisdiction of the Civil Court is ousted by the Act or not. Many of the said decisions naa to be noticed here and I might say that some of the learned Judges were not quite consistent with their views and forgot what they decided before. The first judgment of importance is 41 Cal WN 924 decided by Derbyshire C. J. and B. K. Mukherjea J. (as his Lordship then was] where it was held that inclusion of a debt is a condition precedent for giving jurisdiction to the Board to entertain 'an application. The principles stated therein were followed by Costello A. C. J. and Edgley J. in : AIR1937Cal713 and were also followed by S. K. Gnosn and Nasim Ali JJ. in : AIR1938Cal369 which in its turn was again followed by Mukherjea J. in Kailash Chandra v. Ramkanai : AIR1939Cal177 and by S. K. Ghosh and Mukherjea J. in Abu Taher v. Chandramoni, 43 Cal WN 318.
74. The said decision in 41 Cal WN 1307: (AIR 193/ Cal 713) was followed by Bartley and Nasim Ali JJ. in : AIR1938Cal256 and also by Hender-son J. in : AIR1938Cal261 . The said decision in : AIR1938Cal256 was in its turn followed by S. K. Ghosh and Edgley JJ. in Jatindra v. Surendra : AIR1938Cal549 . The said decision in : AIR1937Cal713 was also followed by the same learned Judges in 41 Cal WN 1366 and later on by Edgley and Auram JJ, in bejoy Govinda v. Noakhali Loan Office Ltd. : AIR1943Cal119 approving the decision of Latifur Rahman J. in Girija Kanta v. Tuni Bibi, 43 Cal WN 978.
75. The second important case is a decision 'of S. K. Ghosh and Mukherjea J. reported in : AIR1939Cal298 which approves the principles laid down in the aforesaid decisions in : AIR1938Cal256 . In the said decision it was held, interpreting Sections 2(8), 18, 20, 33 and 34 of the Act, that the Civil Court could go into the question about the existence of a debt and it was definitely ruled that the Board had got no power to decide the question as to whether a liability amounted to 3 debt or not. The principles laid down in Noor Mea's case : AIR1939Cal298 were followed by Edgley J. both in : AIR1939Cal343 and in : AIR1940Cal549 . These were cases of admitted liabilities (Vide 98 Cal LJ 17). They were also applied by Henderson J. in New Standard BanK ltd. v. Mansur Ali : AIR1941Cal442 followed by Mitter and Sharpe JJ. in 48 Cal WN 712 and latterly by Mukherjea and Akram JJ. in 49 Cal WN 592: (AIR 1946 Cal 53).
76. The next important decision is that of Tarak Hath v. Panchanan Dutt reported in : AIR1939Cal564 decided by Mukherjea and Roxburgh, JJ., which was followed by Henderson J. both in George Miller and no. Ltd. v. Pabna Motor Service : AIR1941Cal706 & in Amanatulla v. Sushil Chandra, 46 Cat WN 610. The said decision in : AIR1939Cal564 was also not disapproved by the Special Bench in : AIR1947Cal1 .
77. There are two other decisions of Edgley J. reported in Oarajuddin v. Jahir Mondal, 44 Cal WN 396 and Kali Sundar v. Khum Chand : AIR1940Cal473 and the latter decision again was followed by Henderson, J. in Purna Lal v. Bhupendra Chandra : AIR1941Cal31 and both again are approved by Mukherjea and Ellis, JJ., in : AIR1945Cal326 . There are also other two decisions of Henderson, J. supporting the same view viz., Gopendra v. Radha Krishna : AIR1940Cal224 and Krishna v. Salamatullah, 44 Cal WN 789. There are also two Bench decisions to the same effect, one by Nasim Ali and Rau, JJ. in Nafar Cnandra v. Kali Pada : AIR1940Cal257 and the other by Biswas and Roxbourgh, JJ. in Lakhipriya v. Souda-mini, 45 Cal WN 345.
78. It might be remembered that to counteract the effect of the decision in Noor Mea's case : AIR1939Cal298 , Section 20 of the Act was amended and the first reported Bench decision of Mukher-jea and Biswas, JJ. after the said amendment was, Jabed Sheikh v. Taher Mallick : AIR1941Cal639 , where it was held that before the amendment, the Civil Court was not only competent but was bound to determine whether a liability amounted to a debt or not but after the said amendment it was the right of the Board to decide the same but their Lordships did not lay down that the Board had got the exclusive jurisdiction to decide the same.
79. Even after the said amendment, there are at least two decisions, Md. Ibrahim v. Saburjan : AIR1943Cal624 and Abinash Chandra v. Nakul Ruhidas : AIR1945Cal192 , decided by Rau and Sen, JJ. and Rau and Biswas, JJ., respectively, which ruled that Civil Courts had always the jurisdiction to decide whether a notice was with or without jurisdiction, valid or invalid, and the Civil Courts had the right to ignore the same if it was a nullity. The said two decisions were followed in 48 Cal WN 712 (supra), which again was followed in : AIR1945Cal326 , which in its turn was again followed by Henderson, J. in Azaruddin v. Abdul, 50 Cal WN 165. The said decision in : AIR1945Cal326 , was noticed by my learned brother P. N. Mookerjee, J. in one of his decisions : AIR1954Cal254 , where It was held that the Board (after the amendment) had exclusive jurisdiction to decide whether a particular liability was a debt or not and the Civil Court could not question the same.
80. There are another group of cases, all decided after the amendment, and one of such decisions is reported in : AIR1945Cal214 , decided by Mukherjea and Ellis, JJ. where it was held that the Board had no jurisdiction to entertain an application where the debtor did not admit his liability or claim; in other words, the Civil Courts would have the right to go into the matter if it was in excess of Board's jurisdiction. The said decision was followed by Chakraborti, J. in : AIR1947Cal255 , but both the said decisions were sought to be explained by Harries, C. J. sitting singly in 52 Cal WN 103 : (AIR 1949 Cal 127), the soundness of which was doubted by Mukherjea and G. N. Das, JJ. in 52 Cal W N 615.
81. There are three other reported decisions in tne same series : the first one, by Mitter and Latifar Rahaman, JJ. in Manmohan v. Shantilochan : AIR1945Cal378 , who held that the Board acquired jurisdiction on an application filed either by the debtor or by the statement filed by the creditor but where there was none, the very foundation of jurisdiction of the Board was shaken though it is true that their Lordships did not specifi- cally go into the question as to whether the Civil court could interfere in that event. But within a fortnight thereafter, Mukherjea and Ellis, JJ. decided in Mohesh Chandra v. Abdul Gafur, 49 Cal WN 319, to the effect that if trie order of the District Judge under Section 40-A of the Act was without jurisdiction and a nullity, the declaration in the suit (as in the instant case) might have been grantea. Simultaneously in another decision by the same learned Judges in Abdul Washe v. Brojendra Mohan, 49 Cal WN 532, it was held that the Civil Court had jurisdiction to decide whether a notice, under Section 34 of the Act was a nullity on the grounds other than those which were within the exclusive competence of the Board to decide under Section 20 of the Act. There were two further single Bencn decisions of Chakravortty, J. (as he then was) in : AIR1947Cal249 and of Biswas, J. in Mono-mohini v. Jahedulla, 51 Cal WN 927, where it was held that if a notice is without jurisdiction and ultra vires the Board, it is not only open but duty of the Civil Court to go into the matter and to disregard the same.
82. Another decision of my learned brother P. '-Mookerjee, J., is, 58 Cal WN 925 where a suit was filed for a declaration that an award passed by the Board was without jurisdiction, ultra vires and nullity and the question arose whether the jurisdiction of the Board was so conclusive and absolute as to deprive the Courts power to deal with the same and his Lordship held that the initial determination of the same lay with the Board but left the question of curtailment of the Courts power open for future consideration, which has arisen in the Instant case. The said decision was approved by a Bench decision of this Court by S. R. Das Gupta and Mullick, JJ. in Rambaliav v. Rameshwarlal, 60 Cal WN 367, where it was held that tne Civil Court could always go into the question of the Board's jurisdiction.
83. These are all the cases (45 in number) which seem to be in favour of the right of the Civil Courts to go Into the question whether the Board has jurisdiction or not to deal with a particular matter. But the undernoted cases seem to suggest the view as if the Board's jurisdiction is somewhat exclusive and that the jurisdiction of the Civil Court is ousted.
84. The first series of such decisions is by Costelio A. C. J. and Edgley, J. in- Bhagwan Dayal v. Chandulal : AIR1938Cal23 , which was overruled by the Special Bench in Narsingh Das v. Chogemull : AIR1939Cal435 . The next decision is that of S. K. Ghosh and Nasim Ali, JJ. reported in : AIR1938Cal375 , where it was held that the Civil Court had no jurisdiction to decide whether a particular person was a debtor or not. The next judgment is that of Ameer Ali, J. sitting singly in : AIR1938Cal455 , where it was held that the Board on the interpretation of Section 20 of the Act had exclusive jurisdiction. It might be stated that the said decision was reversed in the said Special Bench decision or : AIR1939Cal435 . Their Lordships M. C. Ghosh and Biswas, JJ. in Jogesh Chandra v. Mahesh Chandra : AIR1938Cal750 , held that It was outside the Court's purview to go into the question whether a person was a debtor or not. Biswas, J. sitting singly again held in 43 Cal WN 332, that the Board's jurisdiction was not limited to the 'admitted' debts and the notice under Section 34 of the Act was to be obeyed but the question of ouster of Court's jurisdiction was not specifically decided there. In a short Judgment, Nasim Ali and Rau, JJ. in Bhaba Gobinda v. Bholanalh : AIR1940Cal112 , held that the court had no jurisdiction to determine the amount of debt of a particular debtor where the Board had not yet determined the amount. There are two decisions of Derbyshire, C. J. and Mukherjea, J. in Fatema Khatoon v. Manindra, 44 Cal WN 1125 and in Srish Chandra v. Mohim Chandra : AIR1941Cal256 , where it was held that it was the Board's function to decide the amount of tne debt and the Civil Court was bound to stay the execution on receipt of a 'valid' notice under Section 34 of the Act.
85. Then came the .decision, after the amendment of Section 20 of the Act as stated above, and the first of such decisions is that of Mukherjea and Biswas, JJ. in : AIR1941Cal639 , to which 1 have already referred. The said decision was followed by three otner decisions, viz. : AIR1941Cal658 decided by Mukherjea and Biswas JJ. : AIR1942Cal229 decided by Biswas and Roxburgh, JJ., and Bireswar Moral v. Indu Bhushan : AIR1943Cal573 decided by Nasim Ali and Blank, JJ. The last decision was followed by Henderson, J. in 0065/1943 : AIR1944Cal88 , where his Lordship held that the amena-ment of Section 20 was to get rid of the effect of the old decisions, that after the amendment, the Board was to decide whether a liability was a deb.t or not and the Civil Court could not ignore the notice on the ground that there was no debt. There are similar observations by Mukherjea and Blank, JJ. in Baroda Kanta v. Saraswati, 47 Cal ' IS 472, but it was not decided therein as to whether the Board had also the exclusive jurisdiction to decide whether a particular transaction was a liability or not. To the same effect is the decision of Nasim Ali and Pal, JJ. in Derastulla Mullick and Co. v. Radha Krishna Dutfa and Sons, 46 Cal WN 455 (2), in which it was held that the Civil Court was precluded under Section 20 of the Act, to consider whether a debt was a debt within the meaning of the Act. The said decision was followed by Mukherjea and Ellis JJ in : AIR1945Cal417 , in which it was held that after the said amendment, the Board had exclusive jurisdiction to decide whether a particular liability was a debt or not.
86. Then came the important decision of Roxburghand Blank JJ. in : AIR1945Cal100 where it was held that the Civil Court could not ignorethe notice under Section 34, even if there might be aground that the second application to the Board was notmaintainable. It was also ruled, that the Board's powerwas exclusive to decide, even when the application wasmanifestly incompetent; and under Section 20 the decisionof the Board was to prevail which must be accepted bythe Civil Court. Their Lordships dissented from the viewsexpressed in 44 Cal WN 984 : (AIR 1940 Cal 4/3) and : AIR1941Cal31 . Jadu Manda-lini's case : AIR1945Cal100 was followed by Henderson J. in Hasina Bibi v. Buttakrishna,48 Cal WN 141 and he did not stick to his own decisionreported in : AIR1941Cal31 (suprajand that of another Bench decision reported in : AIR1940Cal257 . Jadu Mandalini'scase : AIR1945Cal100 was alsofollowed by the same learned Judges in Nani Bai v. Mailram : AIR1944Cal161 . I may statehere that the said decision was explained by Mukherjeaand Ellis JJ. in : AIR1945Cal326 (supra) but their Lordships Mitter and Sharpe JJ. expressly dissented from the said decision, in 48 Cal W N 712 (supra).
87. Then came the last decision in : AIR1944Cal401 decided by Biswas and Latifur Rahaman JJ. to the effect that the jurisdiction of the Board to decide about the existence of the liability was exclusive and the Court's jurisdiction was ousted. The question whether the said decision was correctly decided or not, has been referred to us for decision in the instant case. I may state here that the said decision In : AIR1944Cal401 was explained by Mukherjea and Akram JJ. in 49 Cal WN 592 : (AIR 1946 Cal 53) (supra) wnicn in my view is a case in all fours with the instant case which we are deciding. Their Lordships observed in 49 Cal WN 592 : (AIR 1946 Cal 53) that the question whe-ther a transaction was a liability or not, required further consideration. This completes the summary of the decisions (20 in number) of the other series.
88. It will appear from the above that there are two competing visws and judicial opinion is sharply divided. The instant case being not a case of collateral or incidental Jurisdiction but of an exclusive one presents a great difficulty. The decisions reported upto 45 Cal WN 345, practice cally deal with cases before the amendment of section 20 of the Act. The above decisions can also be divided into two lines, viz., those in which the powers respectively of the Civil Court and/or of the Board were gone into in the proceedings started under the provisions of the Act, viz., Sections 33, 34, 35 etc. and those arising in a collateral proceeding, viz., in the applications under Section 47 or Order 21, Rule 90 of the Code of Civil Procedure or by suits under sections 48C, 66 of the Bengal Tenancy Act or by declaratory suits, etc, It will also appear that what Biswas, J. held in : AIR1944Cal401 was not the same thing as held by him in : AIR1945Cal192 and 51 Cal WN 927. Similarly, what Latifur Rahman J. held in 43 Cal WN 978 was not the same thing what he held in : AIR1944Cal401 and which again was contrary to what he held In : AIR1945Cal378 .
89. So far as the decisions as to the powers and Jurisdiction of Courts vis-a-vis Special Tribunals are concerned, the general rule is in favour of Court's jurisdiction and the burden of proof is on him who maintains an exception (Ramayya v. Lakshinarayan .) Its exclusion must either be explicitly expressed in clear unambiguous language or In unequivocal terms (In re : Cuno Mansfield v. Mansfield, (1889) 43 Ch D 12 (17)) or clearly implied or 'must be in clear words' -- Francis v. Yiewsley and West Drayton Urban District Council, (1957) 2 QB 136 (148) and in Pyx Granite and Co. v. Ministry of Housing and Local Govt., 1960 (sic) 260 (28S), Viscount Haldane held in Mary Board v. William Board, AIR 1919 PC 233 (235) that jurisdiction of the Court is presumed to exist. Its exclusion is not to be readily inferred : AIR1939Cal435 which approves the observations made in an old English case Jacobs v. Brett (1875) 20 Eq. I at pp. 6, 7);
'The general rights of the Queen's subjects are not to be hastily assumed to be interfered wiih and taken away by Act of Parliament'.
Lord Thankerton also lays down in the case of Mask and Co.
'It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the principles of judicial procedure'.
after referring to the well known judgment of Willes, (sic) in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 C.B. (N.S.) 336 which was approved in the House of Lords in Neville v. London Express Newspaper Ltd., 1919 AC 368.
90. Sir George Rankin in Md. Nawaz v. Bhagata Nand , laid down :
'On principle it is for the Civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction .....'
Sir Ashutosh held in Giridih Municipality v. Suresh Chandra Mozumdar, ILR 35 Cal 859, that the Civil Court was caned upon to see whether the authorities possessed of limited jurisdiction have exceeded their bounds. The Privy Council decision of Ramayya also lays down that a statute which purports to oust the jurisdiction of the Civil Court must be strictly construed and considered in such a way as to avoid the effect of transferring the determination of rights and liabilities to the special tribunals. In Prosunno Coomar v. Koy-lash Chander, 8 Suth WR 428 (FB) at page 436 it is laid down :
'The jurisdiction of the ordinary Courts of Judicature is not to bo taken away by putting a construction by the Act of the legislature which does not clearly say that it was the function of the legislature to deprive any such Court of their jurisdiction.'
It was also held that the existing jurisdiction can be taken away only by the use of distinct words and if the ordinary law of the land has to be altered, it must be by the use of clear process and definite language or as Lord Haisbury puts it forcefully in one of the cases :
'If you want to alter the law..... to suggest that this has to be dealt with by inference and that you who introduced a new system of law without specific enactment of it, seems to be perfectly monstrous.'
91. Lord Herschell in delivering the judgment of the Privy Council in Secy, of State v. Sm. Fahamidunnissa ue-gum, 17 Ind App 40 (53) (PC) says :
'Their Lordships cannot hold that the Board of Revenue can by purporting to exercise the jurisdiction which they did not possess, make their order final and exempt themselves from the control of the Civil Court.'
92. Farewell L. J. In Rex v. Shoreditch Assessment Committee, (1910) 2 KB 859 (880) stated :
'No Tribunal of inferior jurisdiction can by its own decision finally decide on the question of existence or extent of such jurisdiction ..... It is a contradiction in terms to create a Tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure -- such a tribunal would he autocratic .....'
93. Another case of some importance is Benett and White v. Municipal District of Sugar City, 1951 AC 786, in which their Lordships held inter alia that a person had a right to submit to the ordinary Court unless his right to do so had been clearly and validly taken away by some enactment and that the fact that the statute which allowed appeals or a series of appeals to other tribunals is not sufficient to deprive the person of that right.
94. In America it has been held that findings by statutory tribunals are subject to judicial review [Unio Valley Water Co. v. Ben Avon Borough, (19ZO) 253 U. S. 287 T 64 Law Ed 908). In the cases of Interstate commerce Commission v. Alabama Midland Rly. Co., (1887) 168 U.S. 144 : 42 Law Ed 414 and Interstate Commerce Commission v. Illionis Central Rail Road Co., (1910) 215 U.S. 452 : 54 Law Ed. 280, it was held that the orders of the Commissioners are final unless they are beyond the statutory powers or beyond the powers which they could constitutionally exercise. A general survey of the American cases in this regard shows that the Courts exercise a right to review, in order to ascertain inter alia (1) whether the law under which the tribunal is acting, is constitutional, (2) whether the tribunal has violated any Federal Constitutional Provision or (3) acted in an ultra vires manner.
95. In the Canadian Supreme Court case of Price Bros. and Co. v. Board of Commerce, 54 DLR 285 Dutt. J. held at p. 291 that it was the duty of a Court of Justice to consider and decide whether the conditions of jurisdiction are fulfilled. The opinion of Anglin, J. at p. 295 may also be profitably referred.
96. Maxwell in his Treatise on interpretations of Statutes 11th Ed. (1962) at page 122 states :
'It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject, that so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts.
In Willoughby's Constitution of the United States and in 'the American Administrative Law' by Schwartz there is a good deal of discussion with regard to judicial review of determination by statutory authorities.
97. In Bunbury v. Fuller, (1853) 9 Exch 111 at page 140 Coleridge, J. laid down :
'It is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends and however its decision may be final on all particulars making up together with subject matter which if true, is within its jurisdiction, and however necessary in many cases It may be for it to make a preliminary enquiry whether such collateral matter be or be not within its limits yet upon these preliminary questions, its decision must always be open to enquiry in the superior Court.'
This was cited by Blackburn J. in Pease v. Chayter, (1863) 3 B. and Section 620.
98. The principle applicable to cases of this description was elaborately examined by their Lordships of the Judicial Committee in Colonial Bank of Australasia v. Wilian, (1874) 5 PC 417. Lord Esher, M. FT., pointed out in (1888) 21 QBD 313 that though the formula that the special tribunal could give itself jurisdiction by a wrong decision on the facts was a well known formula and though it was correct enough for certain purposes but 'its application is often misleading'. The learned Master of the Rolls then proceeded at pp. 319, 320 to classify the cases in two categories thus :
'When an inferior Court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body, it may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeos to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, ana, If they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust-the tribunal or body with a jurisdiction, which includes the-jurisdiction to determine whether the preliminary state or facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited Jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned if is an erroneous application of the formula to say tbat the tribunal cannot give themselves jurisdiction by wrongly-deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exer-cise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'
99. The above passage indicates with sufficient run-ness the general principles, viz., that when the jurisdiction of the inferior tribunal depends upon the existence of some collateral fact, the tribunal cannot by a wrong decision of the fact give it jurisdiction which it did not otherwise possess. The principles laid down in the case in (1888) 21 QBD 313, were applied by their Lordships of the Supreme Court in the case of Province of Bombay v. K. S. Advani : 1SCR621 and also in the case of T. C. Basappa v. T. Nagappa : 1SCR250 and also by Lord Goddard in 1951-1 All ELR 195.
100. Of course it is true that In re : Baker Infants, (1962) 1 Ch 201, their Lordships interpreting the Education Act, 1944 held that where the statute entrusted the statutory bodies with the duty of doing a particular act and also provided remedies for enforcement of that duty, the Court would not interfere. It is also true that if a special tribunal is given the jurisdiction to determine a subject matter which the Act clearly empowers it to decide and even if such determination appears to be wrong, the same cannot be questioned in a Civil Court as the legislature In-its wisdom made the jurisdiction of the tribunal conclusive and it was not for the Court to question the said wisdom and also as it expressly makes the order of the tribunal final : 1951 SCR 145 : : 2SCR145 and Lila-vati Bai v. State of Bombay : 1SCR721 but the observations in Brij Raj Krishna's case : 2SCR145 are to a certain extent shaken by the observations made by their Lordships of the Supreme Court in the case of Chaube Jagdish Prasad v. Ganga Prasad : AIR1959SC492 to the effect that the observations made therein could have no application to the Judgment of a tribunal whose jurisdiction itself is to be determined. The wrong exercise of jurisdiction is a very different thing from being without jurisdiction as stated in the case of janardan Reddy v. State of Hyderabad : 2SCR344 and as Sir J. W. Colvile puts it In Reasut Hossain v, Hadjee ADdullah, 3 Ind App 22] at p. 229 (PC). Nobody again is quarreling that writs of certiorari were not granted by the Supreme Court to quash the decision passed within its Jurisdiction: by an inferior tribunal (Parry and Co. Ltd, v. Commercial Employees Association : (1952)ILLJ769SC and Ebrahim Aboobakar v. Custodian General of Evacuee Property : 1SCR696 and also Janardan Reddy's case : 2SCR344 (supra), but the difference between the existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion (see Mabulla v. Heman-gini, 11 Cal LJ 512 and Moser v. Marsden, (1892) 1 on 487J. The boundary between an error of judgment ana usurpation of power is while the former is voidable whereas the latter is a nullity (Malkarjun v. Narhari, 27 Ind App 216 (PC)). The cases of Maharaja of Jeypore v. G. D. Pat-naick, 32 Ind App 45 (52) (PC), and Hanna Eissa v. Bishara Elias, AIR 1944 PC 5, might also be profitably referred.
101. The following tests or fundamental principles should therefore be borne in mind in deciding cases, where the question of exclusive jurisdiction of a tribunal is rais-ed :
(1) The general law of the country is not altered by special legislation made without particular reference to it, though a statute passed for a particular purpose must, so far as that purpose extends, override general enactments.
(2) If there is a manifest absence of jurisdiction in the tribunal which makes a determination, the Civil Courts will have jurisdiction to adjudicate upon the matter.
(3) It is for the Courts of general civil jurisdiction to determine what is the scope of the authority given to a statutory tribunal and to investigate the question as to whether a special or subordinate tribunal has acted within the limits of its jurisdiction.
(4) Even where jurisdiction is given to the statutory tribunal to determine certain facts so as to give itself jurisdiction, it will be for the Court of general jurisdic-tion to adjudicate as to what are the powers which the statute has given to such an authority or tribunal.
(5) No tribunal of special jurisdiction can finally decide upon its own jurisdiction or give itself jurisdiction by a wrong decision on a matter collateral to the merits of the case upon which the limits of its jurisdiction depend.
(6) No tribunal of Inferior jurisdiction can establish its jurisdiction by proceeding on an assumed fact, which is not a fact.
(7) A statutory tribunal must act within the scope of its powers given to it or limited by the statute.
(8) If the tribunal acts within the scope of its powers and commits an error, the Civil Courts cannot correct it i.e. its orders, whether right or wrong -- cannot be challenged, except in a manner and to the extent prescribed by the statute.
(9) The special tribunal might be invested by the legislature with exclusive jurisdiction to determine witnin its own authority certain matters and where it is so invest- ed, the jurisdiction of the Civil Court must be deemed to have been taken away to that extent.
(10) A statute conferring jurisdiction under certain particular conditions, cannot be taken to confer jurisdiction also in cases which do not fall within the ambit of the conditions laid down, merely on the basis of analogy.
(11) The confiscatory rights of a special tribunal whose adjudication was declared to be conclusive, could not have immunity from the Civil Courts and at the same time disregard the provisions of the Act under which the tribunal was formed. In other words, the jurisdiction of the tribunal is statutory and the tribunal, however admirable in its intention, is not entitled to go outside the provisions and in any effect to legislate for itself.
102. My reasons, for holding that the Board's jurisdiction in such a matter is not exclusive, are as follows:
(1) Section 18 (1) of the Act speaks of two things and contemplates two distinct cases, 'existence' and 'determination' on the debt, that is, whether a debt exists and the determination of the amount of the debt. Section 18 (4) laying down that the decision of the Board 'in tins respect'; means only 'determination' which 'shall not be questioned in any Civil Court', leaving thereby the question about 'existence' of the debt open for review by the Civil Courts. It is necessary to state that only when existence of a debt has been found, the question of Its determination can arise. Sub-sections (2), (4) and (5) of Section 18 relate expressly to the determination only and have no reference to its existence. Moreover, the word 'shall1 In tne said section does not conclude the matter which is also not always mandatory (vide Hari Vishnu v. Ahmed Ishaque : 1SCR1104 and State of U. P. v. Manbodhan Lal, (S) : (1958)IILLJ273SC .
(2) Section 20 of the Act which authorised the Board to decide, should the question arise, whether a person was a debtor or not, did not give it such authority to decide whether a particular liability was or was not a debt. As a matter of words, Section 20 of the Act does not say that the Board will have exclusive jurisdiction to decide the question. It merely says that if the question arises in a proceeding before the Board, the Board shall decide the same. There are no express words in this section by which Court's jurisdiction is excluded. There is no scope for necessary implication either. Words in a statute are used 'exactly' and not loosely (see Spiders Ltd. v. Carom Assessment Committee, (1931) 2 KB 21 and in Mayor v. T. E. Power Board, AIR 1933 PC 216). What we have to consider is what has been said in a statute and not what may be supposed to have been intended (H. M. Edwards v, Attorney General, Canada, AIR 1930 PC 120 (126) affirm-ing what Lord Chancellor said in Brophy v. Attorney General, of Manitoba, 1895 A. C. 202.
(3) The legislature is presumed to be acquainted with the construction which the Courts have put upon the said Sections 18 and 20 of the Act and in spite of the said constructions when the Act again came before the legislature on more than one occasion and the legislature had not put any express words when the Act was amended, it must be tacen to have accepted the Interpretation put on them by the Courts as correctly, reflecting the legislative mind (Bengal Immunity Co. v. State of Bihar, (S) A. I. R. 1955 S. C. 6bi (749)). When there was amendment but not altered, 11 should be deemed to have legislative recognition (uommis-sioners for Special Purposes of Income-tax v. Pemsel, 1891 AC 531). It is impossile to suppose that on every occasion the legislature can have been ignorant of the same.
(4) If internal aids to Interpretation are looked at, there are express words in the same statute in different sections, i.e., Sections 9 (2), 9 (3), 13(2), 18(4) to the effect that the order of the Board 'shall not be questioned in any Civil Court'. If the legislature intended to conter exclusive jurisdiction on the Board, it could have specifically, said so either in the original Act or even at the time when it was amended thrice. Words in a statute should not be regarded as surplusage but full effect should be given to them.
(5) Even if external aids to interpretations, viz., 'objects and reasons' of the original as well as of the amending Acts are looked at, they also do not support the view that the jurisdiction of the Civil Court in the matter has been sought to be ousted.
(6) In no other provision of the Act, specially Section 2 (10), defining 'loan' or Section 8 where 'nil' dent might be settled or Section 37-A where nil award might be passed, including the preamble and the Rules made there-under, do I find that a latitude of interpretation in favour of Board's exclusive jurisdiction can be given. It is the Court's duty to give effect to the meaning when the same can be fairly gathered from the words used (Shamarao v. District Magistrate, Thana : 1952CriLJ1503 . The language used by the legislature is the true depository of the legislative intent -- to be construed in the light of the general purpose and object of the Act (Darsan Singh v. State of Punjab : 1953CriLJ525 and Popatlal Shah v. State of Madras, 1953 S C R 677 (683) : (AIR 1953 S C 214 [276)).
(7) When another construction is possible and yet consistent with the purpose and meaning of the Act as a whole, I have adopted the said construction. Even if such construction would seek to interfere to a certain extent with the operation of the Act, such interference, if any, will be infrequent as the Act is confined to relieving the burden of 'genuine' 'agricultural debtors and which Act is practically dead, If argument to the contrary is accepted, it will bring the Act into further disrepute.
(8) The interpretation that I have given, would work less injustice and would be preferable. The contrary interpretation 'would have the effect of causing greater injustice as instances were not rare that the Board interfered where a 'Raja' was an applicant before it; where the Board decided the amount as a debt when it had been admittedly incurred in the course of business; where the Board outside the local area assumed jurisdiction; where the Board dealt with applications where the debtor himself mentioned the amount in excess of the sum of Rs. 25,000/- in contraven. tion of Rule 146 (2) of the Rules and the Munsitf having pecuniary jurisdiction of far lesser amount decided the same as an Appellate Officer; where questions of benami and nature of documents being either mortgage or sale were gone into by the Board though the provisions of the Code of Civil Procedure and Evidence Act were not made applicable to the Act; where successive applications were entertained by the Board even after the dismissal of the earlier applications on merits; where the proceedings were started by the Board without any application or statements; where the proceedings were continued by dissolved Boards; where one of the members on the Board was himself an applicant before the same Board and in the language ot Ameer All j. the same 'added to the picturesque ness of the situation.' It is well to remember the observations ot Lord Halsbury :
'It will not be held in the absence of clear language, that Parliament intended to destroy the common law rights of the King's subjects by placing them at the mercy ot irresponsible tribunals.' (9) The members of the Board are admittedly laymen and the determination as to whether a transaction amounts to a liability is an extremely difficult question which has not only been admitted in the aforesaid decision of 48 cal WN 699 : (AIR 1944 Cal 401), referred to by the referring Judges but proved by the two Supreme Court decisions (Chunchun Jha v. Ebadat Ali : 1SCR174 and Bhaskar Waman v. Shrinarayan Rambilas : 2SCR117 . As an instance, in the present case it is argued that the rayati patta read with a contemporaneous agreement to reconvey, was a mortgage by conditional sale within the meaning of Section 58(c) of the Transfer of Property Act and the selami paid for the same was a debt. The legislature was not expected to leave these questions alone to the Board to decide.
(10) On the scope and purpose of the Act it may be that though a specific remedy is provided by the same, yet a person might have another remedy in addition. (Butler v, Fife Coal Co. Ltd., 1912 A. C. 149).
(11) Lastly the long line of cases also establishes that the Board's jurisdiction in the matter is not exclu-sive and the Court should be slow in extending the boundaries of the Boards further.
103. My view therefore is that under the provisions of Sections 18 and 20 of the Act, even after amendment, it there is any dispute as to the extent or amount of any debt or es to whether a person is a debtor or not, or whether a liability is a debt or not, these questions would be decided by the Board to that extent exclusively. I am also of the view that the Board may in the first instance or initially, also determine the question as to whether a particular transaction amounts to a liability or not, but the Board's jurisdiction in this matter is not exclusive or in other words, if any person is aggrieved by the Board's order in this respect, he may challenge the same before the Civil Court on the ground that the elements necessary to give jurisdiction to the Board are wanting and the Board's order therefore is a nullity.
104. I am bound to proceed upon assumption that the legislature is an ideal person that does not make mistakes. I must also assume that it has intended what it has said and I think any other view of the mode in which I may approach the interpretation of a statute, would give authority for an interpretation of the language of an Act, which would be attended with the most serious consequences. It will not be enough to say that, here are plain English words In the section and its amendment by which the Court's jurisdiction is ousted. It will not be proper either in my view, to take the words nakedly and in abstract and then to run to dictionaries or reported decisions for finding out their meaning in favour 01 exclusive jurisdiction of the Board.
105. I entertain no doubt that there remains in the Courts of law, a residuary power to enforce the fundamental purpose of the Act keeping in view the social welfare of the State and Courts would fail in their duty as guardians of law if they do not guard against attacks as in the instant case which might be the more insidious. These should not be compared with the remark that the Judges have paid lip-services to the idea that they are such custodians.
106. A cursory examination of the Statute and the authorities might attract someone to glamourise an alleged Intention of the legislature or legislative policy but I am not much disposed to yield to such an argument as the so-called policy is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law.
107. It is my firm conclusion that for the sake or attaining uniformity, consistency and certainty we must apply the tests and bear in mind the fundamental principles indicated above to all cases where they are not plainly unreasonable or Inconvenient. With the utmost deference, it appears to me to be of great importance to keep this principle of decision steadily In view, not merely for the determination of this particular case but for the Interest of law as a science. Notoriously, there are wide differences of opinion on tne subject even to-day but my opinion is, where legislature fears to tread, it is not for the Courts to rush In.
108. The Letters Patent Appeal is therefore dismissed, without costs and I also agree that there would beno order for costs in this Reference.