Panchanan Bhandari v. Kaliprasad Barman — 1977 DIGILAW 133 (CAL)

JUDGMENT 1. THESE five Rules have been issued against order no. 30 dated 7. 7. 76 passed in connection with Title Suit Nos. 532, 533, 537, 553 and 572 of 1975. The aforesaid suits were filed against the petitioners of the instant Rules by opposite party no. 1 for declaration of title, recovery of possession, mesne profits and injunction. The petitioners set up defence to the effect that they were bargadars and the civil court had no jurisdiction to decide the question. Accordingly applications under section 21 (3) of the West Bengal Land Reforms Act, 1955 were filed. The learned Munsif decided to try the five suits analogously. In view of the defence raised about the jurisdiction of the court a preliminary issue was framed and disposed of by order no. 30 dated 7. 7. 76 which governed all the five suits. By the impugned order the learned Munsif overruled the petitioners' objection and held that the suits were quite maintainable in his court. In doing so the learned Munsif observed : "now we must note first that even after the insertion of the word 'or otherwise' in sub-section (2) of section 18 of the W. B. L. R, Act there has been extension of jurisdiction of the authority mentioned in sub-section (1) only in respect of matters which arise before such authority. Again, such disputes as covered by the expression 'otherwise' must be similar in nature to those already specified in this subsection. And complete ouster of the jurisdiction of the civil court as contemplated in sub-sec. (1) of sec. 21 of this Act relates only to the above disputes. " 2. THE second line of reasoning adopted by the learned Munsif is that there is distinction between a suit and a proceeding and that the word 'proceeding' appearing in sub-section (3)of section 21 of the West Bengal Land reforms Act does not include a suit and as such the civil court dealing with a suit has jurisdiction to decide whether a person is a bargadar or not. The second limb of the learned munsif s reasoning must be put on one aide in view of the decision of this court in Radha Raman Purkayat v. Sadhan Chandra Barik-1977 C. H. N. 76-where Borooah, J. held that the word 'proceeding' in sub-section (3) of section 21 of the Act is wide enough to cover a suit. The second limb of the learned munsif s reasoning must be put on one aide in view of the decision of this court in Radha Raman Purkayat v. Sadhan Chandra Barik-1977 C. H. N. 76-where Borooah, J. held that the word 'proceeding' in sub-section (3) of section 21 of the Act is wide enough to cover a suit. In coming to this conclusion His Lordship observed: "if this was not so, then, if a question whether a person was or was not a bargadar arose in a suit, then the authority constituted under the Act to determine this question, would have no jurisdiction to do. This could not possibly be the intention of the legislature which has created a special authority under the Act to determine the aforesaid question. " 3. THE ratio of this decision is that when a defendant in a suit for declaration of title and injunction instituted in a civil court after the amendment of 1974 claims that he is a bargadar in respect of the suit land, the civil court must refer the matter under section 21 (3) of the Act to the authority constituted therein. In Chapala Bala adhikary v. Monoranjan Das, reported in 1975 (2) C. L. J. 447 the suit was instituted for declaration of title and confirmation of possession before the enactment of the West Bengal Land reforms Amendment Act, 1974. In that case Mukherjee, J. has pointed out that before the insertion of the word 'otherwise' in sub-section (2) of section 18 of the West Bengal Land reforms (as amended) Act, 1974, the jurisdiction of the officer or authority mentioned in sub-section (1) of section 18 to decide the question whether a person was a bargadar or not was conditional or dependent upon existence of a dispute referred to in sub-section (1. The authority or officer in deciding such a dispute under sub-section (1) could incidentally determine under sub-section (2) the question whether a person was a bargadar or not. His Lordship has made it quite clear that the word 'otherwise' has been inserted in section 18 to confer jurisdiction upon the said officer or authority to decide the question whether a person was a bargadar or not or to whom the share of produce is deliverable even in the absence of any dispute referred to in sub-section (1. His Lordship has made it quite clear that the word 'otherwise' has been inserted in section 18 to confer jurisdiction upon the said officer or authority to decide the question whether a person was a bargadar or not or to whom the share of produce is deliverable even in the absence of any dispute referred to in sub-section (1. His Lordship has observed that after the said amendment of sub-section (2) even if such a question arises in any other different way the officer or authority under subsection (1) of section 18 can assume jurisdiction under subsection (2)and determine the question. His Lordship has further observed that section 18 (2) was complementary to section 21 (3) of the Act and that sub-section (3) of section 21 by necessary implication is applicable not only to suits or proceedings which might be commenced after the enactment of the Amending Act of 1974, but also to suits and proceedings pending at the date of the commencement of the said Amending Act. This view was reiterated by His Lordship in prdbir Kumar Pattanayak v. State of West Bengal-1977 C. H. N. 189. 4. THE intention of the legislature for amendment in 1974 was to give exclusive jurisdiction to the authorities or officers concerned and to exclude jurisdiction of the civil and criminal courts to decide whether a person is a bargadar or not. Mr. Mitter appearing for the opposite party has contended that even after amendment of 1974 the authority concerned under the Act has no jurisdiction to decide the question unless there is a dispute referred to in subsection (1) section 18. For this contention Mr. Mitter has pressed in aid the decision of a Division bench of this Court in Sudarsan Ghose v. Janaki Nath Pandit, 1976 (1) C. L. J. 415. Reading between the lines of that decision I cannot for a moment think that their Lordships meant to lay down any such proposition in regard to a case instituted after the amendment of 1974. Janaki Nath Pandit instituted the suit in the court of the munsif at Garbeta before the Amending Act of 1974 came into force against Sudarsan for declaration that the decisions in certain bhag chas cases were illegal, void and without jurisdiction and not binding upon him and for permanent injunction. Janaki Nath Pandit instituted the suit in the court of the munsif at Garbeta before the Amending Act of 1974 came into force against Sudarsan for declaration that the decisions in certain bhag chas cases were illegal, void and without jurisdiction and not binding upon him and for permanent injunction. Their lordships have held that the civil court was competent to entertain a suit involving the determination of the question whether the plaintiff is a bargadar or not and such a suit is not barred by the provision of section 21 of the West Bengal Land Reforms Act if there be no previous determination of the said question by any appropriate officer or authority in any bhag chas proceeding in connection with the decision of any of the matters mentioned in 5. section 18 of the Act. The authority appointed by the State Government has been vested with exclusive jurisdiction to decide matters mentioned in section 18 (1) of the Act and the jurisdiction of the civil court in respect of those matters has been completely ousted. In other words there cannot be any frontal attack on the adjudication as made by the special tribunal in respect of such matters in a civil suit. Their Lordships further observed that section 18 read with section 21 of the Act expressly oust the jurisdiction of the civil court to entertain any suit of proceeding which seeks to question the validity of an order made under section 18 (1) of the Act or any proceeding initiated for decision of any dispute referred to in section 18 (1) of the Act. The observations in Sudarsan's case that the jurisdiction of the Bhag Chas Officer on the question of status under section 18 (2) is only for the purpose of a proceeding under section 18 (1) and the jurisdiction of the civil court to decide the question of status is not ousted must be understood with reference to the question which then fell to be considered with reference to the provisions contained in section 18 and 21 prior to the amendment of 1974. This view of mine finds support from their Lordships' observations that after the amendments of sec. This view of mine finds support from their Lordships' observations that after the amendments of sec. 18 and 21 there is no room for any doubt that the jurisdiction to decide whether a person is a bargadar or not conferred upon the Special Tribunal is exclusive and conclusive and not merely incidental and co-lateral. West Bengal Land Reforms Act is undoubtedly a special Act which confers special jurisdiction upon the authority set up by it to determine question as to the rights which are the creation of the Act. In such circumstances the legitimate conclusion is that the rights are to be determined in the manner prescribed by the act itself to which they owe their existence and the jurisdiction that is conferred on the authority is exclusive: This is clear from the provisions of section 21 (3) which is intended to stay the hands of the civil court when the question whether a person is a bargadar or not is raised. 5. A stock taking of the authoritative pronouncements and due consideration of sections 18 and 21 as amended in 1974 bring one to the inevitable conclusion that when in a suit in a civil court the question is raised as to whether a person is a bargadar or not it must be referred to the authority. In that view of the matter the order passed by the learned Munsif cannot be supported being contrary to the provisions of section 21 of the Act. It is a fit case for interference in exercise of revisional powers. 6. ALL the five Rules succeed and the Rules are made absolute. The order no. 30 dated 7. 7. 76 passed by the learned Munsif, Diamond Harbour is set aside. The learned Munsif will refer to appropriate authority under the west Bengal Land Reforms Act for determination whether the defendants in all the suits are bargadars or not. On receipt of the findings of the competent authority he will proceed with the suits in accordance with law. There will be no order as to costs of these Rules. Rules made absolute.