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Mahendra Nath Roy Vs. Delraddi Chakdar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberFull Bench Reference No. 1 of 1956 in Civil Revn. Case No. 1418 of 1954
Judge
Reported inAIR1966Cal285
ActsTenancy Law; ;West Bengal Bargadars Act, 1950 - Sections 2, 6, 6(1), 7, 7(1) and 9(2); ;Code of Civil Procedure (CPC) , 1908 - Sections 9 and 59
AppellantMahendra Nath Roy
RespondentDelraddi Chakdar and anr.
Appellant AdvocateBhabesh Chandra Mitra and ;Aruna Mukherji, Advs.
Respondent AdvocatePurnendu Narayan Nath and ;Sudhansu K. Hazra, Advs.
Cases ReferredState v. Mask and Co.
Excerpt:
- .....they were tenants under him. it appears, however, that the tenancy right of the defendants in the suit land had been negatived in previous proceeding and before the learned munsif they contested the suit on the ground that the court had no jurisdiction to entertain the suit in as much as the suit was barred by the provisions of sections 7(1)(a) and 9(2) of the west bengal bargadars act 1950 (west bengal act ii of 1950) (hereinafter referred to as the 'said act'). the learned munsif upheld the contention and ordered that the plaint be returned for being filed in the proper forum. the plaintiff then made an application for revision under section 25 of the provincial small cause courts act 1887, which empowers die high court, for the purpose of satisfying itself that a decree or order made.....
Judgment:

Sinha, J.

1. The facts out of which this reference to the Full Bench has arisen are briefly as follows: In April, 1953 the plaintiff Mahendra Nath Roy instituted a suit in the court of the learned Second Munsif, Alipore, exercising the powers of a Small Cause Court Judge, under the Provincial Small Cause Courts Act (Act IX of 1888), against the defendants Delraddi Chakdar and Debaraddi Chakdar, being S.C.C. No. 213 of 1953, claiming a sum of Rupees 319-8-0, being the value of the plaintiff's half share of the produce of the landin suit. The plaintiff claimed that the defendants were Bhag Chasis under the plaintiff and that the defendants had neither delivered to the plaintiff his share of the produce for the period Ist Baisakh 1357 B.S. to the end of Chaitra 1359 B.S. nor paid to him the value thereof. The defendants denied the allegations in the plaint. They denied that they were Bhag Chasis under the plaintiff, asserting that they were tenants under him. It appears, however, that the tenancy right of the defendants in the suit land had been negatived in previous proceeding and before the learned Munsif they contested the suit on the ground that the Court had no jurisdiction to entertain the suit in as much as the suit was barred by the provisions of Sections 7(1)(a) and 9(2) of the West Bengal Bargadars Act 1950 (West Bengal Act II of 1950) (hereinafter referred to as the 'said Act'). The learned Munsif upheld the contention and ordered that the plaint be returned for being filed in the proper forum. The plaintiff then made an application for revision under Section 25 of the Provincial Small Cause Courts Act 1887, which empowers die High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, to call for the case and pass such order with respect thereto as it thinks fit. The matter came up before Debabrata Mookerjee, J. He referred to certain judgments of this Court including the Division Bench judgment in Md. Ismail Miah v. Tom Munda (1955) 59 Cal WN 658 to which he was himself a party. In that case, the judgment was delivered by K. C. Das Gupta J., who held that if no Board had been established for the local area within which the land was situated, there could not be a decision by a Board, but that did not give the Civil Court a right to entertain a suit relating to matters under Sub-section (1) of Section 7 of the said act, because such matters must be decided by the Board referred to in that Sub-section. The learned Judge felt himself bound by the decision, but was of the opinion that in the matter before him, a distinction could be drawn inasmuch as the dispute related to the division or delivery of the produce, whereas in the Bench decision, it was the question of termination of cultivation as referred to in Clause (c) of Section 7(1) of the said Act, and the question did not fall to be considered as to whether a dispute relating to the division or delivery of the produce included also the money equivalent of such produce, with the result that the jurisdiction of the Civil Court would be ousted even if the claim related to realisation of the price of the bhag share of the produce, The learned Judge referred to an un-reported decision of Das Gupta J. C.R. No, 1415 of 1954 (Cal), Dhirendra Nath Chakraborty v. Ramlal Mandal decided on 7-1-1955 in which the learned Judge was dealing with a claim for the value of half the produce deliverable by a Bargadar and considered the question as settled by the said Division Bench ruling, and held that the suit was barred under Section 9(2) of the said Act. Mookerjee J., did not agree with the decision but, regard being had to the importance of the matter, referred it for disposal by a Division Bench. The Division Bench presided over by Bachawat, J., considered the D. B. case of (1955) 59 Cal WN 658 (supra), but felt that they were unable to agree with the view expressed therein to the effect that the Civil Court had no jurisdiction in regard to the matters specified in Section 7(1) of the said Act, even where no board was established in the local area where the dispute arose or the land was situate. Bechawat J. pointed out that the attention of the learned Judges had not been drawn to the decision of G.N. Das, J. in Bharat Chandra Maiti v. Gour Chandra Adak : AIR1953Cal95 and to the decision of Sen, J. in Krishna Chandra v. Panchu Gosh : AIR1953Cal720 , where a contrary view had been expressed. Bachawat, J. was also of the opinion that a suit by an owner claiming the money equivalent of his share of the produce of the land cultivated by Bargadars, raised a dispute with regards to the division and delivery of the produce, within the meaning of Section 7(1) (a) of the said Act.

2. The matter was referred for determination by the Full Bench, atter formulating the following question:--

(1) Is the jurisdiction of a Civil Court to entertain a suit between a Bargadar and the owner whose land the Bargadar cultivates with regard to any of the matters specified in Subsection (1) of Section 7 of the West Bengal Bargadars Act, 1950, barred by Sub-section (2) of Section 9 of the Act where no Board has been established under the Act for the local area within which the land in question is situated?

(2) Where the decisions in (1955) 59 Cal WN 658 and in Civil Revn. Case No. 1415 of 1954 (Cal) correct in so far as those cases decided that Sub-section (2) of Section 9 of the Act, bars a Civil Court from entertaining a suit in respect of a matter specified in Sub-section (1) of Section 7 although no Board has been established for the local area within which the land in question is situated?'.

3. It is common case that on the date of the institution of the suit, namely the 15th April 1953, no Bhag Chas Conciliation Board was established by the State Government under Sec. 6 of the said Act for the local area in which the land in suit was situate. In order to understand the respective contentions of the parties, it will be necessary to consider certain provisions' of the said Act. The preamble of the said Act shows that the Act was passed to provide for the regulation of certain rights inter se of bargadars and owners of land and for the establishment of Bhag Chas Conciliation Boards for the settlement of disputes relating to certain matters between bargadars and owners of land. Section 2(b) defines the word 'bargadar' as meaning a person who under the system generally known as adhi, barga or bhag, cultivates the land of another person on condition of delivering a share of the produce of such land to that other person, but shall not include any such person (i) if he has been expressly admitted to be a tenant by the owner in any document executed by him or executed in his favour and accepted by him, or (ii) if he has been held by a Civil Court to be a tenant; Section 2 (c) of the said Act defines the word 'Board as meaning' a Bhag Chas Conciliation Board established under Sub-section (1) of Section 6,and includes an officer authorised under the proviso to Sub-section (4) of that Section. SubSection (g) defines the word 'owner' as meaning, in relation to any land cultivated by any person as a bargadar, the person whose land the bargadar so cultivates. Section 3 of the said Act, deals with the division of produce and lays down that the produce of any land cultivated by a bargadar shall be apportioned between the bargadar and the owner of such land in accordance with the principles specified therein. Section 4 lays down that as between a bargadar and the owner whose land he cultivates, the bargadar shall have the prior right to supply plough-cattle, plough, other agricultural implements or manure, or to bear any other expenses of cultivation. Section 5(1) prohibits the cultivation of land by bargadar except of the grounds specified therein, with the proviso that the cultivation of such land by bargadar shall not be terminated on any of the specified grounds except under the orders of a Board. Section 5 (2) provides for the restoration of the bargadar to cultivation, in certain cases, and also makes provision for compensation. Section 6 provides for the establishments of Bhag Chas Conciliation Boards. Sub-section (1) provides that the State Government may, by notification, establish one or more Bhag Chas Conciliation Board for any local area specified in notification. Sub-section (2) provides that every Board shall consist of a Chairman who shall be a person in the service of Government and four other members, two of whom shall be representatives of bargadars cultivating lands situated in the local area for which the Board has been established and the other two shall be representatives of owners of lands cultivated by such bargadars. Sub-section (3) provides that the Chairman and other members of the Board shall be appointed by the State Government and each of them shall hold office for such term not exceeding two years as the State Government may specify at the time of his appointment. Sub-section (4) empowers the State Government, at any time, to cancel by notification, the appointment of the Chairman or of any other member of a Board or dissolve any Board, stating the reasons for such dissolution in the notification. There is a proviso stating that when a Board is dissolved and the State Government does not consider the appointment of another Board to be necessary or desirable, it may authorise any person in the service of Government to exercise all or/ any of the powers of the Board, as it thinks fit. It is necessary to note that under Section 6, it is entirely discretionary for the State Government to establish a Bhag Chas Conciliation Board for any local area. In other words, the power of the State Government to establish Boards for any local area is optional, and the State Government is not bound to establish a Board for each local area. The statute contemplates quite clearly that in spite of the passing of the Act, there may be local areas for which no Board is established by the State Government. Section 7 confers exclusive jurisdiction upon a Bhag Chas Conciliation Board to decide certain disputes. Subsection (1) is important and is set out below:--

'7(1) Every dispute between a bargadar and the owner whose land the bargadar cultivates with regard to any of the following matters, namely,

(a) the division or delivery of the produce;

(b) the priority of the right to supply plough-cattle, plough, other agricultural implements or manure or to bear any other expenses of cultivation;

(c) the termination of or the restoration to cultivation of such land by the bargadar;

(d) the place of thrashing or the place of delivery of the owner's share of the produce;

shall be decided by a Board established for the local area within which such land is situated.'

4. Section 9 of the said Act bars the jurisdiction of a Civil Court with regard to certain matters specified therein. The provisions of Section 9 are important and are set out below:--

'9 (1) No award or order or other proceedings whatsoever of a Board or of an Appellate Officer and no proceedings whatsoever in execution of such award or order shall be questioned in any Court.

(2) No court shall entertain any suit or any proceedings whatsoever in respect of a matter required under Sub-section (1) of Section 7 to be decided by a Board referred to in that Sub-section.'

5. Section 12A provides inter aha that termination by the owner of the cultivation of land by the bargadar in contravention of the proviso to Section 5(1) or 'in any area for which no Board is established' on any ground other than those mentioned in Section 5(1) is a punishable offence and also provides for the summary restoration of cultivation by the bargadars in such cases. Section 18 provides that the provisions of the said Act shall have effect notwithstanding anything to the contrary in any other law, or in any custom, usage, contract or instrument.

6. Coming now to the facts of the instant case, it is admitted that on the date of the institution of the suit no Bhag Chas Conciliation Board was established by the State Government under Section 6 of the said Act, for the local area in which the land in suit was situate. The question for determination is as to whether in such a case, a suit relating to any matter within Section 7(1) of the said Act is barred or not. On this point there are conflicting decisions of this Court which may now be noted. The first case to be considered is a decision of G.N. Das, f., in : AIR1953Cal95 . In that case, the plaintiff had brought a suit against the defendant who was a Bhag Chasi. The learned Munsif stayed the plaintiff's suit under Section 9(2) read with Section 18 of the said Act. Das J., held that even if the dispute related to any of the matters referred to in Section 7(1), as there was no Board established in the urea where the land was situate, the dispute cannot be said to be one which required to be decided by a Board. Under the circumstances, the order of the learned Munsif staying the suit was held to be unauthorised and the rule was made absolute and the order set aside. The next case to be considered is a decision of Sen J. in : AIR1953Cal720 . In that case, the facts were as follows: The plaintiff filed a suit in the Court of the Munsif 1st Court Barasat, sitting as a Section C. C. Judge under the Provincial Small Cause Courts Act 1887, against the defendants who were Bhag Chasis, for recovery of the price of Bhag-share of the produce. The defendants contested the suit, contending that they were not bargadars but tenants. The learned Munsif held that the defendants were bargadars and decreed the suit in part. Against the decree, the defendant No. 1 filed a revisional application under Section 25 of the Provincial Small Cause Courts Aet 1887 and the point taken was that the suit was barred in view of Section 7 of the said Act read with Section 9, After enumerating the relevant provisions of the said Act, the learned judge proceeded to say as follows:

'Section 9(2) provides that no Court shall entertain any suit or any proceedings in respect of a matter required under Sub-section (1) of Section 7 to be decided by a Board referred to in that Sub-section. The Board referred to in that Sub-section is the Board established for the local area within which such land is situated. If there fore there is such a Board established, the dispute as to the division or delivery of the produce must be referred to that Board and in that case the Civil Court would have no jurisdiction. It has therefore, to be ascertained whether there is such a Board established. Only if it is found that there is no such Board the Civil Court will have jurisdiction.'

7. The matter was remanded for finding out whether there is a Board established for the local area where the land was situated. The next case to be considered is a Division. Bench judgment of this Court presided over by K.C. Das Gupta., (1955) 59 Cal W.N. 658. In that case, the facts were as follows: The appellant brought three suits which were heard analogously, for recovery of khas possession of certain lands and huts situated therein and for mesne profits, on the averment that the defendants were bargadars, but they refused to cultivate the land according to the instructions of the plaintiff. The defence was that the suit was not maintainable in the Civil Court, being barred under Section 9(2) of the said Act. It was admitted that no Board had been established in the area in which the lands in suit were situated. Das Gupta J., said as follows:-

'Mr. Chakraborty's next argument was that the bar of the second Sub-section of Section 9(2) against a Court entertaining a suit in regard to termination of cultivation is not applicable here, as admittedly no Board has been established in the area. If no Board has been established for the local area within which the land is situated as is admittedly the case here, there is no scope of a decision by the Board because of Section 7(1). That cannot however preclude the operation of Sub-section (2) of Section 9. If the law requires that a matter shall be decided by a Board established for the local area within which the land is situated and no local Board has been established, the position is that there can be no decision by a Board, but that does not give the Civil Courts a right because the mailer still remainsone 'required under Sub-section (1) of Section 7 to be decided by a Board referred to in that Sub-section'. It is certainly inconvenient and, if we may say so, undesirable that there should be no Board for the local area in spite of the fact that the jurisdiction of the Civil Courts was taken away, but that is a difficulty which we cannot remedy. The law must prevail in spite of the omission of the authorities concerned to establish Boards under Section 6 of the Act.'

8. It was held that the Civil Court has no jurisdiction to entertain the suit. In the case, reference was not made to either of the two decisions of a Single Judge mentioned above. It is this bench decision that has occasioned this reference. In the subsequent unreported decision, C. It. No. 1415 of 1954 (Cal), judgment dated January 7, 1955 K.C. Das Gupta J. referred to his earlier decision and followed it, stating that the fact that no Board had been established in the local urea in which the lands were situated cannot preclude the operation of the provisions of Section 9(2) of the said Act. In the instant case, when it came up before Debabrata Mookerjee J. in the first instance, he recollected being a party to the Bench judgment but distinguished the same on the ground that in his opinion, it was doubtful whether the jurisdiction of the Civil Court would be ousted if the case related to the realisation of the price of the bhagshare of the produce He accordingly referred the matter to a Division Bench. The referring Bench presided over by Bachawat J. were unable to accept the said Bench judgment in (1955) 59 Cal WN 658 (supra) as correct, and since there was a conflict of decisions the matter was referred to a Full Bench. Besides the authorities referred to, there is another decision of a Division Bench of this Court which has not been referred to namely, Adhar Chandra Mandal v. Bistpada Gure : AIR1956Cal497 . In that case, K. C. Das Gupta J. was the presiding Judge but the judgment was deliver ed by Guha J. who noticed the two single Bench decisions mentioned above, and disagreed with them, preferring to follow the Bench decision in (1955) 59 Cal WN 658 (ibid). I shall now consider the decision in : AIR1956Cal497 (ibid). It related to two orders passed by a Small Cause Court Judge decreeing the plaintiff's suits for recovery of Rs. 500 as the price of barga produce on the basis of a registered Kabulyat. The point that arose for decision was whether the Court concerned had jurisdiction to try the suits, regard being had to the provisions of Sections 7 and 9 of the said Act. Guha J. confessed that the point was not free from difficulty and there was divergence of judicial opinion regarding the matter. The learned fudge referred to the decision of G. N. Das J. in : AIR1953Cal95 (supra) and of Sen J. in : AIR1953Cal720 (supra) but found himself unable to agree with the same. He preferred the Bench decision in (1955) 59 Cal WN 658 (ibid). The learned Judge held that the language in Section 7(1) to the effect that the matters referred to therein shall be decided by a Board was explicit and since, in Section 18 it has been provided that the provisionsof the said Act shall have effect notwithstanding anything to the contrary in any other law, it was difficult to conceive how the Legislature could have expressed its intention more forcefully. The learned Judge said as follows:

'To construe Section 9(2) of the Act in such a way to limit its operation only to cases where a local Board has been established while leaving the jurisdiction of the regular Courts unfettered to deal with other cases may no doubt remove obvious inconvenience but that will be legislating, and not interpreting the statute. Courts cannot override the express and mandatory statutory provisions of the relevant statute on considerations of inconvenience or equity.'

9. Das Gupta J. agreed with the conclusion reached by Guha J., and stated as follows:

'As my learned brother has pointed out, where the language of the statute is clear, the fact that inconvenience will result from the natural interpretation of the words cannot justify the Court to refuse to accept that interpretation. It may further be pointed out that in the present case the inconvenience that will no doubt result to many litigants from the view which we have taken about the legal position, is not due to the law but really due to the omission of the Executive to carry out the intention of the Legislature. What is clear from the Statute is that the Legislature intended that for every local area in the State of West Bengal a Board should be constituted and for certain specified matters the jurisdiction of the Civil Court will be ousted and in its place the jurisdiction of the Boards will be substituted.

If the Executive had carried out this clear intention of the Legislature, no inconvenience would have resulted. I do not think we shall be justified in putting a strained interpretation on the plain words of the language because the omission of the Executive to carry out the intention of the Legislature has produced a position which will result in inconvenience if the law is enforced. We, as the Judiciary, cannot refuse to interpret laws properly merely because the executive has omitted to give effect to the intention of the Legislature.'

10. The rules were made absolute and the judgment and decrees of the Lower Court were set aside and both the suits were dismissed.

11. In our opinion, both the Bench decisions : AIR1956Cal497 were not correctly decided. The first error that has been committed in both the cases was to consider it to be a duty of the Executive Government to bring into existence a Board as defined in the said Act, in every local area when: land may be situated, or disputes may arise as mentioned in Sub-section (1) (of Section 7. The learned Judges failed to notice that the word 'Board' has been defined to mean a Bhag Chas Conciliation Board established under Sub-section (1) of Section 6 of the said Act. Under Sub-section (1) of Section 6, the State Government is not bound to establish a Bhag Chas Conciliation Board for any local area. It is entirely a discretionary matter and it is wholly optional for the State Government to establish or not to establish a Bhag Chas Conciliation Board in any particular local area. That beingso, the basic reasoning in the two Bench decisions falls to the ground. If a Board does not have to be established for every local area where the land in dispute is situated in respect of which a dispute arises under any of the headings mentioned in Sub-section (1) of Section 7, then, it' follows that the jurisdiction of a Civil Court will be excluded in such a case only where a Board has been established in the local area within which the land is situated, and that such jurisdiction will not be ousted where no such Board has been established. If this conclusion is not arrived at, then the inevitable conclusion is that although it is optional with the Executive Government to establish a Board or not, yet by merely failing to establish a Board, it would take away the jurisdiction of the Civil Courts in such areas and a person affected will have a right without a remedy. This is an untenable position in law. In our opinion, what is explicit in Sections 7 and 9 is that the jurisdiction of the courts will be taken away only where a Board has been established in the local area within which the land concerned is situated, and not otherwise, and ho question of convenience or inconvenience arises at all. The principle to be followed has been laid down in a Privy Council decision, Secy, of State v. Mask and Co. . Lord Thankerton held that it was 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 or clearly implied.

12. In the present case, Section 7(1) of the said Act provides that in the case of every dispute relating to certain matters mentioned therein between a bargadar and an owner, including the question of division or delivery of the produce, such dispute shall be decided by a Board established for the local area within which such land is situated. Section 9(2) provides that no court shall entertain any suits or proceedings whatsoever in respect of a matter required under Sub-section (1) of Section 7 to be decided by a Board-referred to in that Sub-section. It follows, that where a Board has not been established in any particular local area within which the land is situated, it is not 'required' under Sub-section (1) of Section 7 to be decided by a Board. In such a case the existing jurisdiction of a Civil Court will not be ousted. Section 18 of the said Act does not affect the question, because the above conclusion is reached, not because, of the existence of any other law, custom or usage, but as a result of the interpretation of the provisions of Section 7(1) and Section 9(2) of the said Act itself. That being so, the answers to the questions framed by the referring Court should be as follows:

1. The jurisdiction of a Civil Court to entertain a suit between a bargadar and the owner whose land the bargadar cultivates, with regard to any of the matters specified in Sub-section (1) of Section 7 of the West Bengal Bargadars Act, 1950 is not barred by Sub-section (2) of Section 9 of the said Act, where no Board has been established under the said Act for the local area within which the land in question is situated.

2. The decisions in (1955) 59 Cal WN 658 and in Civil Revn. Case No. 1415 of 1954 (Cal) have not been correctly decided in so far as they decided that Sub-section (2) of Section 9 of the said Act bars a civil court from entertaining a suit in respect of matters specified in Sub-section (1) of Section 7 although no Board has been established for the local area within which the land in question is situated. It might be added that the Division Bench judgment in : AIR1956Cal497 has not also been correctly decided upon this point. On the other hand, the decision of G. N. Das, J. in : AIR1953Cal95 and of Sen J. in : AIR1953Cal720 have been correctly decided.

13. The result is that this rule must be made absolute and the order of the learned second Munsif, Alipore, dated 25th January 1954 should be set aside and the learned Munsif should be directed to accept the plaint and proceed with the suit in accordance with law. The respondents must pay the cost. The hearing fee is assessed at two gold mohurs.

Mitter, J.

14. I agree.

Chatterjee, J.

15. I agree.


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