1. This is an application under Article 227 of the Constitution against the order dated 1st March, 1961 of the Additional Member, Board of Revenue, West Bengal in Case No. 237 of 1958.
2. The petitioners and one Habibur Rahman held a putni tenure under the Maharaja of Krishnagar. The lands of the tenure, in view of the partition of India, fell partly within West Bengal and partly in East Pakistan. Be that as it may, in 1954 the West Bengal Estates Acquisition Act was passed. Section 9 of the said Act enabled the State to collect the rents due prior to the acquisition on behalf of the superior landlords. In pursuance of the said provisions of Section 9 of the Estates Acquisition Act proceedings were taken by the State for recovery of rents for the years 1356 to 1361 B.S. In these proceedings, in fact, on the 6/7th, November 1956 two certificates were issued--one for the years 1356 and 1357 B.S. and the other for the years 1358 to 1361 B. S. There is no controversy before us with regard to the first certificate relating to the years 1356 and 1357 B.S. The controversy is confined to the other certificate relating to years 1358 to 1361 B.S.
3. The petitioners filed objections under Section 9 of the Public Demands Recovery Act. They raised several points; they are not all material except one. They relied upon a receipt dated 28th March, 1954, corresponding to 15th Chaitra, 1360 B. S., and in view of the provisions of Section 56 (4) of the Bengal Tenancy Act contended that it should be presumed that they have paid up all rents up to the date of the receipt.
4. This contention succeeded before the Certificate Officer. This contention was again upheld by the Appellate Tribunal. The State being dissatisfied with this order of the Appellate Tribunal took the matter to the Commissioner. The Commissioner, Mr. K. C. Basak in his order dated 4th September, 1958 observed in effect that in fairness and equity the presumption laid down in Section 56 (4) should not be given effect to. He had in mind the difficulties of the landlords to give the requisite particulars of the properties in the receipt in view of the bifurcation of the original tenancy. Thereafter the petitioners took the matter to the Board of Revenue. The Additional Members of the Board of Revenue observed as follows :-
'The next contention put forward by the learned Advocate for the petitioners is that the learned Divisional Commissioner ought not to have refused to draw the preemption under Section 56 (4) of the Bengal Tenancy Act. In view of the peculiar circumstances of the case, it would be unfair, as the learned Commissioner has found to draw the presumption under Section 56 (4) of the Bengal Tenancy Act. This contention must therefore fail.'
5. Thereafter the petitioners obtained the Rule in this Court. The relevant portions of Section 56 of the Bengal Tenancy Act are as follows :-
'56 (1) Every tenant who makes a payment on account of rent to his landlord shall be entitled to obtain forthwith from the landlord a written receipt for the amount paid by him, signed by the landlord.
* * * * * * * * (4) If a receipt does not contain substantially the particulars required by this section, it shall be presumed, until the contrary is shown, to be an acquittance in full of all demands for rent up to the date on which the receipt was given.'
6. The formal rent receipt given under the Act inquires certain particulars to be given. The form of rent receipt is as follows:
'Bengal Tenancy Act, 1885.
Book No.FORM OF RENT RECEIPT(Tenant's portion.)1.Serial number of receipt ......... ............. ............... ...........2.Estate..................................... Village..................................., Thana...............................3.Tenant's name............................................... son of.................................................4.Area of tenure or holding, if knownNukdi, area..........................................Bhaoli, ' .......................................... Rent of tenure or holdingRupees...........................................Mounds..........................................Jalkar, Rs. .........................................Bankar Rs. .........................................Phalkar Rs. ......................................... Government cessesRoad cess, Rs. ............................................Public Works Cess, Rs. ......................................5.Signature of the landlord or his authorised agent............................................'
Section 55 of the Bengal Tenancy Act, 1885, provides as follows :-
'(1) When a tenant makes a payment on account off rent, he may declare the year or the year and instalment to which he wishes the payment to be credited, and the payment shall be credited accordingly.
(2) If he does not make any such declaration, the payment may be credited to the account of such year and instalment as the landlord things fit.'
The receipt dated 28th March, 1954 does not contain the particulars required by the section and the form. Mr. Sen Gupta submitted in these circumstances that the presumption under Sub-section (4) of Section 56 must came into operation and accordingly the decision on the point both by the Commissioner and the Board of Revenue is wrong and cannot be sustained in law. In our opinion, the presumption laid down in Sub-section (4) of Section 56 is clearly applicable in view of the contents of the receipt dated 28th March, 1954.
7. Section 56(4) is a provision which any Tribunal is bound to take notice of. There are no exception to the section. Hence, the peculiar circumstances arising out of the partition of India cannot, in our opinion, set at naught the presumption laid down in Sub-section (4) of Section 56. When there is a specific provision of law, noquestion of fairness and equity can come into play. Hence, In our opinion, the reason given by both the Commissioner and the Board of Revenue is manifestly wrong.
8. It may also be noted that there may have been difficulties in giving some particulars of the properties in East Pakistan. There was, however, no difficulty whatsoever in mentioning the period for which the amount was received. Hence, the reason based on the peculiar circumstances cannot be sustained.
9. Mr. Das, learned Advocate appearing for the State of West Bengal, submitted firstly that the Court should not interfere under Article 227 of the Constitution when the petitioners could have filed a suit under the Public Demands Recovery Act. In our opinion, that is not necessarily a sufficient ground not to exercise the power of superintendence vested in the Court under Article 227 of the Constitution. In this connection the further question was discussed as to whether the Court can interfere under Article 227 of the Constitution because the error committed is not directly connected with the Jurisdiction of the tribunal, particularly in view of certain observation's as to the scope of Article 227 of the Constitution made by the Supreme Court.
10. In the case of Satyanarayan Laxminarayan Hedge v. Mallika Ranjan, : 1SCR890 the Supreme Court made the following observation:
'Here there is no question of assumption of excessive Jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, if anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227'.
11. In other words, His Lordship K. C. Dasgupta J., who delivered the judgment of the Court equated the Jurisdiction tinder Section 115 of the Code with the jurisdiction under Article 227 of the Constitution.
12. In the case of Durgashree Stores v. Board of Revenue, West Bengal, : AIR1963Cal409 a bench of this Court after discussing several case came to the following conclusions:
'In our view, then, if the decision of a tribunal can be shown to be arbitrary and devoid of reason or erroneous on the face of it or to be based on an error on a jurisdictional point, then by the exercise of power of superintendence under Article 227 of the Constitution this Court can and should revise the said decision.'
13. In the subsequent case of Nibaran Chandra v. Mahendra Nath, : AIR1963SC1895 the Supreme Court without referring to the said observation of his Lordship Mr. Justice Dasgupta in the case of : 1SCR890 and without noting the decision in : AIR1963Cal409 made the following observation:-
'We consider that the Learned Judges were not Justified in the course they took in interfering with the findings of the Revenue authorities. They were not sitting as a Court of Appeal and had merely to consider firstly whether the Tribunals had out stepped the limits of their jurisdiction or secondly whether the findings recorded were based on no material or were otherwise perverse'.
14. In our view the latest pronouncement of the Supreme- Court should be read along with observations made in the -case of Satyanarayan Laxminarayan, : 1SCR890 and the explanation given and the elucidation made of that case in the case of : AIR1963Cal409 , for the Supreme Court in the latest case has not dissented or commented upon the observation made in the case of Laxminarayan, : 1SCR890 or criticised the view of the law taken in Durgashree Stores, : AIR1963Cal409 though it must be said that it is not clear as to whether these cases were actually cited before their Lordships or not. Hence, in our opinion, this Court had jurisdiction provided the circumstances bring it within the ambit of the principle laid down by his Lordship, Mr. Justice K. C. Dasgupta and explained in the above case of : AIR1963Cal409 .
15. There is not the least doubt in our minds that the decision on the question of presumption was arbitrary and devoid of permissible legal reason and erroneous on the face of it. The tribunals in exercising their jurisdiction took recourse to considerations extraneous to the rules of construction and thereby wrongly exercised their jurisdictions. The Tribunals did not make mere error in the construction of Section 56 but avoided its application.
16. Mr. Das further submitted that in view of the, provisions of Section 195 of the Bengal Tenancy Act it cannot be said that the relevant putni related to agricultural land and if it did not relate to agricultural land, the Bengal Tenancy Act and consequently Section 58 (4) of said Act would not be applicable. In our view, this question raises or involves questions of facts. This point was not taken at any stage of the proceedings until the heating before us. The parties proceeded in four Tribunals on the basis that it relates to an agricultural land. Hence, in these circumstances. In our opinion, it would not be just to allow the State to agitate this point.
17. Mr. Das further submitted that Section 56(4) is inapplicable to the receipt in question, for the landlord has not signed it but his revenue agent has put his signature. The relative form shows that either the landlord or his authorised agent can put his signature. Be that as it may, it is clear that this point again raises questions of facts. This point was not raised before the four Tribunals and it would not be right, in our opinion, to allow the State to agitate this point at this stage.
18. Mr. Das further submitted that there is no evidence that the gentleman who signed the receipt was the authorised agent of the Maharaja. He draws our attention to the fact that the signatory of the receipt is described as a revenue agent of Jessore. This point again raises questions of facts which were not raised or agitated before the Tribunals below. Hence, in our opinion again this point cannot be allowed to be agitated at this stage.
19. Mr. Das lastly submitted that as the petitioner admitted in paragraph 4 of the written objection that the rents for the years 1360 B. S. were due, the presumption arising out of Section 56 (4) has been set off by the presumption arising out of the admission in the written objection.
20. The relative statement in paragraph 4 of the written objection is as follows :-
'That there are no arrears upto 1359 B. S. the sums having been paid to Nadia Raj Estate on the basis of challans and receipts as well as by payment of revenue on behalf of the Raj Estate according to the orders orthe Raj Estate and as such, the certificate is not admissible'.
21. The receipt relied upon for presumption is the receipt dated 28th March, 1954 corresponding to 15 Chaitra 1360 B. S.
22. In my opinion, there is no express admission though an admission by implication may arise out of the rules of pleadings. Be that as it may it is clear that this point was not raised at any stage before the hearing before us. It was not even indicated in the affidavit filed in this Court.
23. Notwithstanding this admission assuming that there is one, the State did not rely on the same in the four Tribunals, but proceeded on the basis that the receipt dated 15 Chaitra 1360 B. S. was admissible In. evidence and contested on the basis of the want of presumption in the peculiar facts and the contents of the receipt. The State did not lay down this admission as a ground intheir counter affidavit even in this Hon'ble Court. If thisobjection was taken before the Certificate Officer, the petitioner may have amended the written objection. In these circumstances, it would not be right in our opinion, to allow the State to take this point at this stage of theproceedings when the defect could have been cured ifit was taken at the proper time by necessary amendment of the written objection. There is room for the contention that the statutory presumption, can co-exist with the other or in the alternative prevail over the other. Hencein our opinion it would not be proper to allow the State to urge this point at this stage.
24. Mr. Das further submitted that in the facts ofthis case the matter should be remanded for inquiry into the questions of facts raised by him. In our opinion, it would not be right at this stage to remit the matter back to the Certificate Officer.
25. In the result, the order of the Additional Member, Board, of Revenue dated 1st March, 1961 is set aside and the order of the Certificate Officer dated 12th March, 1957 is restored.
26. The Rule is made absolute. There will be no order as to costs.
R. N. Dutt, J.
27. I agree.