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1979 DIGILAW 272 (CAL)

Gobinda Prasad Samanta v. State of West Bengal

1979-07-23

CHITTATOSH MOOKERJEE

body1979
JUDGMENT The petitioners as plaintiffs have instituted Title Suit No. 161 of 1974 against the respondent Nos. 7 to 9 in the Court of the learned Munsif, Second Court, Tamluk for a declaration that they cultivated in khas the plots of land described in the Schedule to the plaint. The defendants had filed their written statements, inter alia, claiming that they were Bargadars of the suit land. Thereafter, the learned Munsif, Second Court, Tamluk passed the impugned Order No. 32 dated 3rd September, 1975. The learned Munsif by his said order under Section 21(3) of the West Bengal Land Reforms Act, 1955 referred to the authority mentioned under sub-section (1) of Section 18 of the said Act for decision of the question whether the defendants in the said suit were Bargadars or not. The said order of the learned Munsif under Section 21(3) of the West Bengal Land Reforms Act, 1955 is the subject-matter of challenge in the present Rule. 2. Mr. Bhunia, appearing on behalf of the petitioners, has submitted that sub-section (3) of Section 21 is ultra-vires because the said provision violates the principles of the 'rule of law' which is one of the basic principles of our Constitution. According to Mr. Bhunia, the officers and authorities mentioned in sub-section (1) of Section 18 of the West Bengal Land Reforms Act do not possess judicial training; they are appointed and are also removable by the State Government; the provisions of Article 235 of the Constitution are inapplicable to the said officers or authorities mentioned in sub-section (1) of Section 18 of the Act; witnesses examined in the proceedings under Section 18 of the Act are not administered oath but nonetheless decision of the officers and authorities under Section 18 of the Act made on the basis of such evidence would be binding upon the Civil Court. According to Mr. Bhunia, such provision is repugnant to the 'rule of law'. 3. Before I proceed to examine these contentions raised on behalf of the petitioners, it may be noted that the West Bengal Land Reforms (Amendment) Act, 1974 (West Bengal Act XXXIII of 1974) had inserted sub-section (3) of Section 21 of the West Bengal Land Reforms Act and also had amended sub-section (2) of Section 18 of the said Act. 3. Before I proceed to examine these contentions raised on behalf of the petitioners, it may be noted that the West Bengal Land Reforms (Amendment) Act, 1974 (West Bengal Act XXXIII of 1974) had inserted sub-section (3) of Section 21 of the West Bengal Land Reforms Act and also had amended sub-section (2) of Section 18 of the said Act. The West Bengal Land Reforms (Amendment) Act, 1974 has been included as Entry No. 183 in the 9th Schedule of the Constitution by the Constitution (Fortieth Amendment) Act, 1976. Therefore, the West Bengal Land Reforms (Amendment) Act, 1974 (West Bengal Act XXXIII of 1974) enjoys immunity under Article 31 B of the Constitution. It is not therefore open to the petitioners to contend that Section 21(3) of the West Bengal Land Reforms Act takes away or abridges any of their rights conferred by Part III of the Constitution. 4. I find no substance in the submission of Mr. Bhunia that Section 21(3) is ultra vires on the ground that the same militates against any of the basic features of the Constitution of India. The 'rule of law' does not require that every cause should be adjudicated in civil court. Mr. Gupta, Additional Advocate General, appearing on behalf of the respondents, correctly submitted that the constitution of special tribunals or quasi-judicial authorities is not per se invalid. The Legislature on intelligible and reasonable basis may differentiate particular classes of cases and provide for their determination in the special forum. Provisions for such special forum undoubtedly must ensure a fair trial by observance of the principles of natural justice. The parties may be given opportunity of being heard. The authority required to decide must proceed objectively, fairly and impartially. Such tribunals or officers are required to pass reasoned orders. Provisions for appeal would be an added safeguard for preserving the ‘rule of law’. 5. Recently, the Supreme Court in (1) Re The Special Courts Bills, 1978 reported in AIR 1979 SC 478 at pages 502-510, had considered the question of legislative competence of the Parliament to create special courts outside the hierarchy of courts recognised by the Constitution. It was argued before the Supreme Court that the Constitution contained a complete code of judicial system which provided for the Supreme Court at the apex and for the High Courts, the district courts and the subordinate courts next in order of priority. It was argued before the Supreme Court that the Constitution contained a complete code of judicial system which provided for the Supreme Court at the apex and for the High Courts, the district courts and the subordinate courts next in order of priority. The Supreme Court in the said case rejected the said argument that it was impermissible for the Parliament to create a court or a class of courts which does not fall within or fit in that scheme. The Supreme Court also rejected the contention that creation of special courts would be detrimental to the constitutional concept of judicial independence. The Supreme Court in the said case made a brief resume of previous Supreme Court decisions bearing on laws which provided for the creation of special courts. The Supreme Court had concluded where a law postulates a rational basis for classification and the same is not arbitrary or artificial, a law constituting special court would be valid. Judged by the above tests, I am bound to hold that the provisions in Chapter III of the West Bengal Land Reforms Act for constitution of a special forum for adjudication of the disputes mentioned therein are not ultra vires. 6. It is not for the court to consider the wisdom of enacting a statutory provision which bars jurisdiction of civil court to try a particular kind of cases and, at the same time, which provides for adjudication of the said cases before a special tribunal or authority. In fact, Mr. Bhunia, learned advocate for the petitioners, did not question the validity of sub-section (1) of Section 21 of the West Bengal Land Reforms Act. The said provision bars the jurisdiction of the civil court to question any order or other proceeding whatsoever under Chapter III of the West Bengal Land Reforms Act. Secondly, sub-section (1) ousts the civil court's jurisdiction to entertain any suit or proceeding in respect of any matter mentioned in sections 17 and 18 of the Act. 7. The said provision bars the jurisdiction of the civil court to question any order or other proceeding whatsoever under Chapter III of the West Bengal Land Reforms Act. Secondly, sub-section (1) ousts the civil court's jurisdiction to entertain any suit or proceeding in respect of any matter mentioned in sections 17 and 18 of the Act. 7. Sub-section (2) of Section 18 (before the said provision was amended by the West Bengal Act XXXIII of 1974) provided for only incidental determination by the authorities under Section 18(1) of the question as to whether a person is a Bargadar or not (vide decisions of this court in (2) Jadu Nath Roy and others v. Lal Mohan Malik and others, 66 CWN 88; (3) Sarat Chandra Panda and others v. Sk. Amia Ali and others, 66 CWN 229 and (4) Kalipada Naskar and others v. Moni Mohan Naskar 67 CWN 1076). After Section 18(2) of the West Bengal Land Reforms Act was amended by the West Bengal Act XXXIII of 1974 the extent of the jurisdiction of the authorities under Section 18(1) to adjudicate the question whether or not a person was a Bargadar was enlarged. I have considered the scope and effect of the amendment made to sub-section (2) of Section 18 in my judgment in the case of (5) Chapala Bala Adhikary v. Monoranjan Das & Others, 1975 (2) CLJ 447 . In Chapala Bala's case (supra), I have also discussed the scope and effect of the insertion of sub-section (3) of Section 21 of the Act. Under the amended Section 18(2) the officer or the authority concerned may now adjudicate the question as to whether a person is a Bargadar or not only while deciding any dispute referred to in sub-section (1) of Section 18 of the Act but also "otherwise", Thus, independently of a proceeding under Section 18 (1) of the Act the officer or the authority concerned may now determine the question whether a person is a Bargadar or not. 8. I have already referred to Section 21(1) of the West Bengal Land Reforms Act which has expressly excluded civil court's jurisdiction in respect of the matters specified therein. 8. I have already referred to Section 21(1) of the West Bengal Land Reforms Act which has expressly excluded civil court's jurisdiction in respect of the matters specified therein. The officers or authorities under Section 18 (1) of the Act have been conferred exclusive jurisdiction to determine not only disputes specified in sub-section (1) of section 18 but also to adjudicate whether or not a person is a Bargadar. Perhaps the logical consequence of the said ouster of the civil court's jurisdiction was to make provisions in sub-section (3) of Section 21 for reference by a court of the question as to whether a person is or is not a Bargadar to officers or authorities mentioned in sub-section (1) of Section 18 of the Act. Presumably, to avoid the conflict of jurisdiction between the civil or criminal court and the said officers or authorities specified in sub-section (1) of Section 18 of the Act, the Legislature has made such provisions for reference by the civil court of the question specified therein to the said officers or authorities. Section 21 (3) has resulted only in partial exclusion of civil court's jurisdiction. The civil court under Section 21(1) of the Act is barred from adjudicating the matters mentioned in Sections 17 and 18 of the Act. In case, one of the several issues raised in a civil court relates to the question as to whether a person is or is not a Bargadar then the civil court under section 21(3) is required to refer only the issue as to whether a person is or is not a Bargadar to the officers and authorities specified in sub-section 18 (1). In Chapala Bala Adhikary's case (supra). I have already pointed out that Section 18(2) is complementary to Section 21(3) of the West Bengal Land Reforms Act. Therefore, the civil court under Section 21(3) can only refer those questions which come within the ambit of Section 18(2) of the Act. The civil court retains its jurisdiction to try the remaining issues framed in a suit and not concerning the question whether a person is a Bargadar. These issues are to be adjudicated by the civil court itself and not by the officers or authorities specified under Section 18(1) of the Act. The civil court retains its jurisdiction to try the remaining issues framed in a suit and not concerning the question whether a person is a Bargadar. These issues are to be adjudicated by the civil court itself and not by the officers or authorities specified under Section 18(1) of the Act. Similarly, when the said question whether a person is a Bargader or not has been already decided on the competent forum the civil court in a subsequently filed suit need not make a reference under Section 21(3) of the Act. 9. The fact that the determination under Section 21 (3) read with Section 18(2) of the Act cannot be challenged before the court which made such reference does not make the said law ultra vires. The civil court's jurisdiction to question the correctness of such determination under Section 21(3) read with Section 18(2) of the Act has been excluded expressly by section 21(1) of the Act. A person aggrieved by such determination under Section 18(2), however is not without any remedy under Chapter III of the West Bengal Land Reforms Act. Section 19(1) provides for appeal against any order made under Sections 17 and 18 except where such order was made with the consent of the parties to the dispute. A determination under Section 18(2) read with Section 21(3) would be therefore, appeal-able under Section 19(1) of the Act. The appellate order itself may be also challenged by filing a writ petition or by invoking this court's power of superintendence and control (in view of the 44th Amendment of the Constitution). 10. No person has any vested right to have his case tried by officers judicially trained. A decision rendered by an officer or authority under Section 18(1) cannot be per se bad in law merely because the said officer had no formal judicial training. But in case, the said decision is mala fide, erroneous or otherwise incorrect a person aggrieved has his remedy both under the West Bengal Land Reforms Act and also dehors the Act. Mere fact that these officers are appointed and removeable by the State Government does not necessarily mean that the said officers who are judicial authorities cannot act fairly, objectively and in consonance with the principles of natural justice. The prescribed procedure for adjudication of disputes under Chapter III has not been challenged before me. Mere fact that these officers are appointed and removeable by the State Government does not necessarily mean that the said officers who are judicial authorities cannot act fairly, objectively and in consonance with the principles of natural justice. The prescribed procedure for adjudication of disputes under Chapter III has not been challenged before me. Therefore, nothing turns on the fact that the witnesses examined in the proceedings under Sections 17 and 18 of the Act are not administered oath. 11. For the foregoing reasons I conclude that the provisions of Section 21(3) are not opposed to the basic features of Constitution of India and, therefore, the challenge to the vires of Section 11(3) of the Act must fail. Before I conclude this judgment, it may be mentioned that a Special Bench of this Court in (6) Raich Ali Khan v. Hazi Sadak Ali Sk. & Ors., 1977 (2) CLJ 1 had approved the decision in Chapala Bala Adhikary's case (supra). In the Special Bench, however, the point of constitutional validity of Section 21(3) was neither raised nor decided. For the foregoing reasons, the Rule is discharged without any order as to costs.