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1945 DIGILAW 48 (CAL)

Mohesh Chandra Shaha v. Abdul Gafur, Plaintiff

1945-03-02

body1945
JUDGMENT B. K. Mukherjea, J. - This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for a declaration that an order made by the District Judge of Tippera under S. 40A, Bengal Agricultural Debtors Act, in Revision case No. 123 of 1941 was ultra vires of the said Act and as such was null and void. The material facts are not in controversy and may be stated as follows. In the year 1937, the plaintiff Abdul Gaffur Choudhury presented an application before the Debt Settlement Board within Panchthubi Union for the settlement of his debts due to several creditors who have been made defendants 1 to 9 in the suit. The application was registered as case No. 14 of 1937 of the Board. On 6th September 1937, the Board made a reference to the Sub-Divisional Officer at Comilla who was the Appellate Officer at that time, regarding the issue of a notice under S. 34, Bengal Agricultural Debtors Act which was prayed for by the plaintiff. The Sub-Divisional Officer made an order on 22nd September 1937, holding that the applicant was not a debtor within the meaning of the Bengal Agricultural Debtors Act and consequently no notice should issue under S. 34 of the Act. The Board, however, reviewed the said order of the Appellate Officer, and on 9th January 1938, held that Abdul Gaffur Choudhury was a debtor and consequently was entitled to relief under the Bengal Agricultural Debtors Act. The debts were then determined and settled under the provisions of the Act, and eventually an award was made on 2nd March 1941. 2. There was no appeal by any of the creditors against this award. It appears that one Bisseswar Chatterjee was a creditor of the plaintiff who died pending the proceedings before the Debt Settlement Board, and his sons and heirs figure as defendants 7 and 8 in the suit. Soon after the award was made, an officer acting under the executor to the estate of Bisseswar Chatterjee applied to the Debt Settlement Board for copies of the orders made by it in the above-mentioned case, but his application was refused. Soon after the award was made, an officer acting under the executor to the estate of Bisseswar Chatterjee applied to the Debt Settlement Board for copies of the orders made by it in the above-mentioned case, but his application was refused. Thereupon, on 29th April 1941, another officer of the executor, named Atul Behari De, filed a petition before the Appellate Officer at Comilla complaining of the refusal of the application for copies by the Debt Settlement Board and praying either that the Board might be directed to grant him the copy of the order, or in the alternative, the records might be called for and he might be informed of the order actually made by the Debt Settlement Board. This petition was registered as Miscellaneous case No. 63 of 1941. On 1st May 1941, Atul put in another petition before the Appellate Officer alleging that the Debt Settlement Board refused to entertain the application for review which was filed by another officer of the estate of Bisseswar Chatterjee and praying that the review petition might be accepted and the order of the Debt Settlement Board set aside. This application was registered as Miscellaneous case No. 66 of 1941. Both these matters were heard together and decided on 26th July 1941. The first application was allowed and the Debt Settlement Board was directed to grant copies of the order to the party, while the second application was dismissed as being filed too late. The order made on the second application is as follows: "Heard pleader. I find no reason to review a case which has been dismissed long ago. Return the court-fees." 3. Against both these orders, a revision petition was filed before the District Judge at Tippera under S. 40A, Bengal Agricultural Debtors Act. The learned District Judge, by his order dated 11th November 1941, set aside the entire proceeding before the Debt Settlement Board including the award. It was held by the District Judge that the Debt Settlement Board had no power to act beyond the order of the appellate officer made on 22nd September 1937, and there was a gross failure of justice in the proceedings of the Board. The plaintiff has now brought this suit for a declaration that the above order of the District Judge was without jurisdiction and hence null and void. The plaintiff has now brought this suit for a declaration that the above order of the District Judge was without jurisdiction and hence null and void. The suit was resisted by defendants 3, 5, 6, 7, 10 and 12, and their contentions inter alia were that the suit was not maintainable in the present form, and that the order of the District Judge was quite within his jurisdiction and was binding on the parties to the proceedings. The trial Court dismissed the suit holding that the order of the District Judge was not a nullity and that the suit was barred by the provisions of S. 40 (6), Bengal Agricultural Debtors Act. On appeal, the learned Additional District Judge of Tippera reversed the decision of the trial Court and sent the case back in order that the other issues which were left undecided by the Subordinate Judge might be disposed of in accordance with law. It is against this order of remand that the defendants have come up on appeal to this Court. 4. We may state at the outset that we do not dispute the general proposition of law enunciated by the learned Additional District Judge that a Debt Settlement Board being a tribunal of special jurisdiction, its powers are limited by the statute under which it was created. The tribunal must act within its powers and so long as it does so, its orders, whether right or wrong, cannot be challenged except in the manner and to the extent prescribed by the statute. Ordinarily, a civil Court would have the authority to investigate the question as to whether a special or a subordinate tribunal has acted within the limits of its jurisdiction: vide 44 C. W. N. 709 Secretary of State v. Mask & Co. ('40) 27 A. I. R. 1940 P. C. 105 : ILR (1940) Mad. 599 : ILR (1940) Kar. P. C. 194 : 67 I. A. 222 : 188 I. C. 231 : 44 C. W. N. 709 (P. C.). But this rule must be taken subject to the limitation that the special tribunal might be invested by the Legislature with exclusive jurisdiction to determine its own authority in certain matters, and where it is so invested, the jurisdiction of the civil Court must be deemed to have been taken away to that extent. But this rule must be taken subject to the limitation that the special tribunal might be invested by the Legislature with exclusive jurisdiction to determine its own authority in certain matters, and where it is so invested, the jurisdiction of the civil Court must be deemed to have been taken away to that extent. Now, the Court of appeal below has in the present case negatived almost all the grounds on which the order of the District Judge made under S. 40A, Bengal Agricultural Debtors Act was challenged by the plaintiff as being ultra vires and without jurisdiction, and he has held, and, in our opinion, quite rightly, that S. 40A, Bengal Agricultural Debtors Act, enables a District Judge to revise any order made by the appellate officer, and that the section is not confined merely to orders made by the appellate officer on appeal. He has also held rightly that although the District Judge set aside not merely the order of the appellate officer but that of the Debt Settlement Board as well, he cannot be said to have acted without jurisdiction even if his order be not in conformity with the provisions of S. 40A (5), Bengal Agricultural Debtors Act. 5. The learned Additional District Judge has held, however, that the petition presented to the appellate officer by Atul Behari De on 1st May 1941 cannot be treated as a memorandum of appeal complaining of abuse of powers by the Debt Settlement Board as contemplated by S. 40 (1) (d), Bengal Agricultural Debtors Act. The application purported to be one for review of the order of the Debt Settlement Board, and under S. 44 (b), Bengal Agricultural Debtors Act, the appellate officer was not competent to entertain such an application at all as the appellate officer had no jurisdiction to entertain it, and as his order was without jurisdiction, the order of the District Judge on the basis of that proceeding must also be deemed to be ultra vires and without jurisdiction. Despite the very able and careful judgment of the learned Additional District Judge, we regret to say that we cannot agree with this last portion of his judgment. Despite the very able and careful judgment of the learned Additional District Judge, we regret to say that we cannot agree with this last portion of his judgment. It seems to us, in the first place, that though the petition of Atul Behari De was not in the form of a memorandum of appeal filed under S. 40, Bengal Agricultural Debtors Act, it was in substance an appeal to the appellate officer complaining of the failure on the part of the Board to perform its functions under the Act. As under the law, an appeal would lie to the appellate officer in such circumstances, the appellate officer, in our opinion, should be presumed to have acted within his jurisdiction and not in excess of it. But even if we assume that the appellate officer had no jurisdiction to make any order on that petition, that by itself would not oust the jurisdiction of the District Judge under S. 40A, Bengal Agricultural Debtors Act. As the learned Additional District Judge has himself pointed out, S. 40A, Bengal Agricultural Debtors Act, is not confined to orders made by the appellate officer on appeal. It applies to all orders made by the appellate officer, be they right or wrong, and within or without jurisdiction. It is a settled principle of law that when the order of an inferior tribunal is revisable by a superior authority, the authority of the revising Court is not confined to orders made by the Subordinate Court within the limits of its own jurisdiction. If an order of the inferior Court is without jurisdiction, it is capable of being revised in the same way as an order made with jurisdiction. 6. The result, therefore, is that, in our opinion, the plaintiff is not entitled to a declaration that the order of the District Judge was without jurisdiction and hence null and void. We agree with Mr. 6. The result, therefore, is that, in our opinion, the plaintiff is not entitled to a declaration that the order of the District Judge was without jurisdiction and hence null and void. We agree with Mr. Das that the order of the District Judge under S. 40A, Bengal Agricultural Debtors Act might not have been made in strict conformity with the provisions of that section, and instead of setting aside the decision of the Debt Settlement Board himself, the proper procedure ought to have been to send the case back for rehearing with proper instructions to the appellate officer, but these are matters which do not affect the jurisdiction of the District Judge, and hence a civil Court is not competent to pronounce the order of the District Judge to be a nullity on that ground. The result, therefore, is that this appeal is allowed. The judgment of the lower appellate Court is set aside and that of the Court of First instance restored and affirmed. The defendants will have their costs in the Courts below. We make no order as to costs in this Court. Ellis, J. 7. I agree.