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Bazler Rahman Khandakar Vs. AmiraddIn and on His Death, His Sons Apsaraddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal401
AppellantBazler Rahman Khandakar
RespondentAmiraddIn and on His Death, His Sons Apsaraddi and ors.
Cases ReferredBaijnath Tamakuwala v. Tormull
Excerpt:
- biswas, j.1. this is a rule against a revisional order of the district judge of tippera under section 40a, bengal agricultural debtors act, 1935, and arises out of an application made by the petitioner under section 8 of the act for settlement of his debts. the petitioner was ordinarily resident at a place called chauddagram within the comilla sub-division, but instead of applying to the ordinary debt settlement board established for that area, he made the application before the special board at laksam which had jurisdiction over the whole of the sub-division. the special board thereupon submitted the application to the collector (s. d. o., comilla) under rule 22, bengal agricultural debtors rules, 1936, and that officer directed a transfer of the case to the ordinary board at batisha,.....
Judgment:

Biswas, J.

1. This is a Rule against a revisional Order of the District Judge of Tippera under Section 40A, Bengal Agricultural Debtors Act, 1935, and arises out of an application made by the petitioner under Section 8 of the Act for settlement of his debts. The petitioner was ordinarily resident at a place called Chauddagram within the Comilla sub-division, but instead of applying to the Ordinary Debt Settlement Board established for that area, he made the application before the Special Board at Laksam which had jurisdiction over the whole of the sub-division. The Special Board thereupon submitted the application to the Collector (S. D. O., Comilla) under Rule 22, Bengal Agricultural Debtors Rules, 1936, and that officer directed a transfer of the case to the Ordinary Board at Batisha, though the petitioner did not reside in this area.

2. The petitioner's case was that on 17th Falgun 1331 B.S. (1st March 1925) his father on his own behalf and as guardian of the petitioner who was then a minor, jointly with the petitioner's two adult elder brothers, purported to execute a deed of sale in respect of certain properties in favour of three persons who are now represented by the opposite parties. The consideration for the transaction was stated to be sum of Rs. 5400 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 these very properties, Rs. 3000 being due on account of principal and Rs. 1500 on account of interest. On the same date the purchasers executed a document in favour of the vendors agreeing to re-convey 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 stood together, and their effect was to make the transaction a mortgage by conditional sale, creating the relationship of debtor and creditor between the parties. It was on this basis that the petitioner made his application before the Debt Settlement Board, claiming that the debt had been fully satisfied by the mortgagees' possession for over 15 years.

3. Previously, it appears, an application had been made in respect of the self-same transaction by one of the petitioner's brothers to the Debt Settlement Board at Chuaddagram, but that board dismissed the application under Section 17, holding that the question whether the transaction amounted to a mortgage by conditional sale or to an out and out conveyance with a condition for re-purchase was too complicated a question for the board to decide. On the present application, the Batisha Board, however, went into the matter and held that the transaction was a mortgage, and on the merits it not only accepted the petitioner's contention that the debt had been extinguished by the mortgagees' possession, but went further and found that a sum of Rs. 1080 was due by the mortgagees to the mortgagors. The board accordingly allowed the application.

4. Against this Order the opposite parties preferred an appeal to the appellate officer (S.D.O., Comilla) under Section 40 of the Act. As the appeal was filed beyond the period of 30 days prescribed by Sub-section (2) of Section 40, the appellate officer held that he was precluded from interfering with the board's finding regarding the nature of the transaction, but subject to that, he set aside the Order on the ground that the opposite parties had not been served with the requisite notices under Section 13 (1), and in the result, remanded the case for rehearing after due service of notice on the parties. The remand was, however, directed not to the Batisha Board from which the appeal had been brought, but to the Special Board at Laksam, presumably because it was considered that the Batisha Board had no territorial jurisdiction. An express direction was given to the Special Board to treat the transaction between the parties as a debt. The opposite parties were aggrieved not so much by the Order of remand as by the direction which accompanied it. They accordingly moved the District Judge of Tippera in revision under Section 40A of the Act. Under the proviso to the section the District Judge transferred the case to the Additional District Judge for disposal.

5. The learned Judge was of opinion that the fundamental question in the case was whether or not the documents of 17th Falgun 1381 B.S., on which the petitioner relied, created a liability at all, and that this was a matter which the board was not competent to decide. Section 20 of the 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 that 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.

6. The learned Judge further pointed out that in so far as the board had exceeded its jurisdiction, its action amounted to an 'abuse of its powers' under Clause (d) of Sub-section (1) of Section 40, and that consequently no question of limitation could arise as regards the appeal. Apparently he took the view that Sub-section (2) of the section which prescribed the period of limitation applied, as its terms showed, only to an appeal against a 'decision,' 'order,' 'award' or 'certificate' referred to in Sub-section (1), that is to say, to an appeal which came under Clause (a) or (b) or (c), but not under Clause (d) of this subsection. It is against this Order of the Additional District Judge that the petitioner has obtained the present rule.

7. Dr. Basak on behalf of the opposite parties has raised a preliminary objection to the competency of the Rule on the ground that the District Judge (including therein the Additional District Judge to whom the case may be transferred) exercising his powers under Section 40A is not a Court, and hence not subject to the revisional jurisdiction of the High Court under Section 115, Civil P.C. It is contended that the District Judge is a mere persona designata, and that the proceedings before him are not of a judicial character. Stress is laid in this connexion on the provisions contained in Sub-section (4) which expressly enjoin that the District Judge shall not hear the parties or any person appearing on their behalf, and this, it is said, takes away one of the essential attributes of a judicial proceeding. The question raised is not free from difficulty, but is now covered by authority. There are at least two reported decisions of this Court in which a contrary view has been taken: one is that of Henderson J. sitting singly, in Hari Pada Datta v. Ham Sristi Kundu : AIR1943Cal250 , and the other, of a Division Bench (Mukherjea and Blank JJ.) in Gobinda Chandra v. Rashmani : AIR1943Cal470

8. Dr. Basak asks us to hold that the decisions are wrong, and if necessary, to refer the matter to a Full Bench. It is said that the question has not been discussed with sufficient fulness in either of these judgments, and in particular, that the effect of Sub-section (4) of Section 40A has not been considered. The only test which is accepted as conclusive for showing that the District Judge is a Court is the power which he has been given under the proviso to transfer the case to any Additional District Judge subordinate to him, the ratio being that the District Judge can have no judicial officer sub ordinate to him except as a Court. The learned Judges appear to have paid little regard to the scheme of the Act which definitely contemplates the setting up of a special machinery for carrying out its provisions in which civil Courts have no place. We have carefully considered the matter, and are not prepared to say that the decision arrived at in the two cases referred to is not correct. What are the questions which really arise for consideration They are mainly two: first, whether the District Judge in Section 40A is a Court, and secondly, whether he is a Court subordinate to the High Court within the meaning of Section 115, Civil P.C.?

9. The first question is not answered by saying that the District Judge is a persona designata, for as Fazl Ali J. points out in the Patna Full Bench ease, Mt. Dirji v. Sm. Goalin ('41) 28 A.I.R. 1941 Pat. 65, at p. 388, there is no real antithesis between the expressions 'persona designata' and 'Court;' even a persona designata may be a Court: that will depend upon his powers and functions and upon the provisions of the statute conferring jurisdiction on him.

10. The second question is the more important of the two, for, even if the District Judge is a Court, it does not necessarily follow that he must be a Court subordinate to the High Court. The Civil Procedure Code contains no definition of a Court, but Section 3 provides for the subordination of Courts for the purposes of the Code. It lays down that for the purposes of the Code, the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. That makes it necessary to consider whether the District Judge referred to in Section 40A is the District Court, by 'District Court' being meant, as Section 2(4) of the Code shows, the principal civil Court of original jurisdiction or in the language of the Bengal, Agra and Assam Civil Courts Act (12 of 1887), the Court of the District Judge. That is not all: we have further to ask whether in exercising the jurisdiction conferred on him by Section 40A the District Judge functions as such Court.

11. First, then, as to whether the District Judge is a Court. We shall not attempt the difficult task of defining a Court, or laying down exhaustively the tests by which to differentiate a Court from a body which is not a Court. Suffice it to state that a Court must be a judicial tribunal, that is to say; a tribunal charged with judicial functions to be exercised judicially. The meaning of the word 'judicial' in the present context is perhaps best understood by contrasting it with 'administrative.' We are not unmindful of the fact which is now well established that an administrative body may also be clothed with judicial functions and act judicially: Royal Aquarium, etc., Ltd. v. Parkinson (1892) 1 Q.B. 431, Shell Co. of Australia v. Federal Commissioner of Taxation (1931) 1931 A.C. 275, O'Connor v. Waldron (1935) 1935 A.C. 76, and Toronto Corporation v. York Corporation (1938) 1938 A.C. 415, But there is a great difference between the constitution of Courts and that of bodies which are really administrative, though in deciding the questions before them they may have to act judicially in the sense of acting fairly and impartially.

12. Turning to the provisions of Section 40A, Bengal Agricultural Debtors Act, there can hardly be any doubt that the functions and powers which are thereby conferred on the District Judge are judicial, and not administrative. The word 'revision' is perhaps inconclusive, and so also the provision in Sub-section (4) that he shall 'consider' the papers which may be forwarded to him by the appellate officer, particularly as it is coupled with the condition that he 'shall not hear the parties or any person appearing on their behalf.' Sub-section (5), however, seems to us to leave the matter in no uncertainty: it expressly requires that the District Judge is to satisfy himself whether there has been a 'substantial failure of justice,' and that, 'by reason of any illegality or irregularity' in the Order under revision, which clearly implies a judicial determination by the application of a judicial mind. The duties imposed are in fact not very dissimilar to those which this Court is empowered to discharge under the provisions of Section 115, Civil P.C. The fact that the District Judge has been given power to act 'for any other sufficient cause' does not appear to us in any way to alter the scope or nature of the jurisdiction he exercises under this section. These words are to be read as ejusdem generis with the grounds specifically mentioned in the preceding Clause .

13. If, then, the functions are judicial, can it nevertheless be said that they have been entrusted to the District Judge, not as a Court, but as an administrative authority The District Judge is undoubtedly a judicial officer who has to perform certain administrative business in the course of his official duties, but there is nothing to show that the jurisdiction under Section 40A has been conferred upon him in his administrative, and not in his judicial capacity. That under the terms of Sub-section: (4) the District Judge has no right to hear the parties does not appear to be of any decisive significance in this respect. That is a mere matter of procedure, and cannot in our judgment affect his capacity to act as a Court. It is unquestionably one of the normal characteristics of a judicial proceeding that it must be conducted in the presence of the parties concerned, but that is not a necessary test. If that was so, a Judge of this Court, for instance, could not dispose of an undefended criminal appeal without ceasing to be a Court. Between deciding without hearing the parties and deciding without a right to hear the parties, there is a difference, but the difference is only one of degree as regards procedure, which can make no difference as to the character in which the tribunal acts, making it judicial in one case and administrative in the other.

14. It is pertinent in this connexion to call attention to Section 4, Civil P.C. which clearly shows that it is possible by enacting a special law to prescribe a special form of procedure for any civil Court in derogation of that laid down in the Code. Sub-section (4) of Section 40A, to the ex tent to which it alters the ordinary procedure regarding the hearing of parties, may will be regarded as such special law, and cannot, therefore, be taken as necessarily affecting the character of the District Judge as a Court. We do not think there is anything in the scheme of the Act which requires us to hold that the District Judge must be an administrative tribunal. It may well have been the intention of the Legislature to provide for the review of administrative decisions by a judicial tribunal in the last resort. Section 40A was not in the Bengal Agricultural Debtors Act, 1935, as originally passed, but the actual working of the Act may have disclosed the necessity or desirability for some sort of judicial control, however limited, over the proceedings of the ad hoc tribunals which the original Act had set up. In so far therefore as Section 40A was intended to provide for such control, it could not be said that its enactment necessarily involved any repugnancy to the general scheme of this special legislation. It is significant that whereas in the case of a board and of an appellate officer the Act expressly provides that the proceedings before them shall be in accordance with rules to be prescribed by the Provincial Government, there is no such provision as regards the procedure to be followed by the District Judge under Section 40A, showing thereby to our mind that the procedure is to be that of an ordinary civil Court, except only as otherwise provided in the section itself.

15. It seems to us to be of no importance that the Legislature has not thought it fit to designate the District Judge specifically as a Court by using any such expression as 'the District Court' or 'the Court of the District Judge', instead of saying 'the District Judge.' In 8.Mandal v. Aghorechandra Ganguli ('36) 63 Cal.136, dealing with a similar question in connexion with the Bengal Municipal Act, 1932, Henderson and Khundkar JJ. pointed out that these expres-sions might be regarded as interchangeable. It would not be unreasonable therefore to hold that in using the words 'District Judge' in Section 40A of the present Act, the Legislature meant to follow the same interpretation of these words as had been adopted by the Court in that case. For the foregoing reasons, our considered answer to the first question arising upon the preliminary objection to the Rule is that the District Judge exercising jurisdiction under Section 40A is a Court. Then, as to the second question whether the District Judge is subject to the revisional jurisdiction of the High Court, it should be clear from what has been already stated that if the District Judge under Section 40A is a Court, he is a Court not in his administrative capacity, nor as a persona designata, but as the Court of the District Judge or District Court, vested no doubt with a new and special jurisdiction under the provisions of a special statute. The only point therefore which requires consideration is whether or not in the exercise of such special jurisdiction the District Judge will be subject to the same incidents of procedure as attach to his ordinary jurisdiction. On this question it is not necessary to do more than cite the House of Lords decision in 9. National Telephone Co. Ltd. v. Postmaster General (No. 2) (1913) 1913 A. C. 546, which is clear authority for the proposition that where special jurisdiction is conferred on an existing or established Court without more, it will attract all the incidents of the ordinary jurisdiction of such Court, and it need hardly be added that such incidents will include the right of revision as much as the right of appeal from its decisions, if provided by the statute. We have no hesitation, therefore, in holding that the District Judge exercising jurisdiction under Section 40A, Bengal Agricultural Debtors Act, must be regarded as much amenable to the revi isional jurisdiction of the High Court under Section 115, Civil P.C. as when functioning in his usual capacity. The preliminary objection to the competency of the Rule must consequently be overruled.

16. Now, as to the merits, the question is whether the learned Additional District Judge was right in holding that the Debt Settlement Board had no jurisdiction to decide whether the transaction between the parties amounted to a mortgage by conditional sale or to an out and out conveyance with a condition for re-purchase. The leatned Judge seemed to think that this involved the determination of a question as to the existence of a liability in the nature of a debt, as distinguished from the question whether a liability was a debt or not, and that under the terms of Section 20 of the Act it was only a question of the latter, and not of the former, description that a Debt Settlement Board was competent to decide. We do not think the learned Judge took a correct view of the matter. In the first place, he made a wrong assumption that Section 20 was exhaustive of the matters which a board might or might not decide. That is not so. There are various questions besides those specifically mentioned in that section which a board is not only competent, but is required, to decide under the Act. Thus, Section 18 provides that 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. Take, again, the definition of a 'loan' in Section 3 (10), which is expressly stated to include 'any transaction which is, in the opinion of a board, in substance a loan.' This clearly shows that where there ia any question as to whether a transaction is a loan or not, it is for the board to come to a conclusion in the matter upon consideration of all the attendant facts and circumstanceSection The question in the present case is really one of this kind. Rightly or wrongly, the petitioner here came to the board with the case that the sum which his father and his cosharera had received from the opposite parties was not the purchase price of a property sold and delivered to the latter, but merely a loan advanced to them on the security of that property. That being so, it would certainly be within the competence of the board, under the definition, to form an opinion as to whether this was the real character of the transaction.

17. 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 the exist. ence of a liability, this must be first determined before and as a preliminary to the determination of the further question as to the nature of the liability. To give effect to the view of the 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 liability, and thereby ousting the jurisdiction of the board. We do not think there is anything in the language of Section 20 which compels us to adopt a construction which involves such a result. Apart from this, we do not see why a question as to the existence of a liability cannot be held to come within the terms of Section 18, which expressly empowers a board to decide whether a debt exists or not. Every liability may not be a debt, but every debt is a liability, and jurisdiction to decide that there is a debt implies jurisdiction to decide that there is a liability.

18. 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. The result is that in so far as the learned Additional District Judge held that the question which the board was called upon to decide in this case was beyond its jurisdiction we must overrule his decision. We must equally set aside his decision on the question of limitation, as it was rested on the same ground. The effect of this should be to make the original decision of the Batisha Debt Settlement Board as to the transaction being a mortgage final between the parties.

19. Dr. Basak however on behalf of the opposite parties raised an argument, though for a different purpose, which, in our opinion, helps to avoid this result. The point he sought to make was that if the Order of the District Judge directing the dismissal of the petitioner's application could not be supported on the particular ground he had mentioned, the application was still liable to be dismissed on the ground that the Batisha Board had no territorial jurisdiction to deal with the case. As will appear from the recital of facts already given the petitioner had presented his application before the Special Board at Lak-sam, but the Section D.O., Comilla, acting as the Collector, transferred it to the ordinary Board at Batisha for disposal. This transfer 'was made under Rule 22, but the Rule requires that the transfer should be made to an ordinary board having jurisdiction in the area in which the debtor is ordinarily resident. It is in the following terms:

When an application is made under Sub-section (1) or (2) of Section 8 to a Special Board by or relating to a debtor ordinarily resident in an area for which an ordinary board also has been established, such Special Board shall submit the application to the Collector with a view to its transference to the ordinary board for action under Section 12.

Admittedly the petitioner was not ordinarily resident within the jurisdiction of the Batisha Board, but was a resident of Chauddagram which had a board of its own. The transfer to the Board at Batisha might therefore be regarded as incompetent. No objection could however be taken as to the place of presentation of the application, as the Special Board at Laksam had jurisdiction over the whole of the sub-division. There is no reason therefore why the application should be thrown out altogether as incompetent, as contended for by Dr. Basak. The only effect of the learned advocate's argument would be to remove the obstacle on the ground of limitation which might otherwise have operated in his clients' favour. The whole of the proceedings before the Batisha Board must in fact be held to have been without jurisdiction.

20. We think that in the circumstances of the case the proper Order for us to make would be to set aside the Order of the Additional District Judge, and remit the case to him in Order that he might in his turn remit it to the appellate officer with liberty to that officer either to decide the case himself on the merits or to refer it to a competent board with territorial jurisdiction to hear it de novo. The Rule is accordingly made absolute with costs, hear, ing fee three gold mohurs.

Latifur Rahman, J.

21. Having regard to the fact that the questions raised in this Rule are of some importance I should like just to say a few words. As regards the preliminary objection that the District Judge acted merely in the capacity of a superior executive officer and not as a Court, and consequently his orders were not revisable under Section 115, Civil P.C. the following observations of Mukerjea and Blank JJ. in Kiron Chandra v. Kali Das : AIR1943Cal247 , may be referred to:

It is only a legislative enactment or a Rule having statutory authority that can constitute a Court or invest a Judge with authority to determine matters outside his jurisdiction. The Bengal House Rent Control Order, 1942, is an Order made by the Governor in the exercise of his powers under Rule 81 (2) (bb), Defence of India Rules. It is not a ease of the exercise of legislative powers by the Governor as contemplated by Sections 88 to 90, Government of India Act, 1935. It is an instance of an executive act pure and simple.

22. The Bengal Agricultural Debtors Act (Bengal Act 7 of 1936), it is to be noted, is a legislative enactment passed by the Provincial Legislature having obtained the previous sanction of the Governor-General under Sub-section (8) of Section 80A, Government of India Act, 1935. With regard to the general nature of the Act, Ameer Ali J. in Baijnath Tamakuwala v. Tormull : AIR1938Cal455 , observed as follows:

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 nothing precisely analogous to it. Possibly the jurisdiction of ecclesiastical Courts over clergy might form an analogy.

23. Under the provisions of Section 40A of the Act, the District Judge is invested with the authority to revise orders passed by appellate officers who are appointed under the provisions of Section 40. Simply because a certain procedure is laid down under Section 40A in accordance with which he 'shall not hear the parties or any person appearing on their behalf,' it does not necessarily follow that he is vested with the powers of an executive officer pure and simple or is a 'persona designata'. Since we hold that the District Judge, exercising jurisdiction under Section 40A is a Court, it follows that he is amenable to the jurisdiction of the High Court, under the provisions of Section US, Civil P.C. and the preliminary objection accordingly fails. As to the merits, the learned Additional District Judge appears to have taken an erroneous view. Section 18 (1) of the Act runs as follows:

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 ... decree.

24. Section 20 is as follows:

If any question arises in connexion 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.

25. These sections require the board to adjudicate on the question as to whether a liability is a debt or not. Since the board is empowered to decide the question as to the existence of a debt, and whether a liability is a debt or not, it seems that it should have the power to decide the question as to whether a transaction amounts to a debt or liability. I agree with my learned brother that this Rule should be made absolute.


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