Dharmadas Paul v. Pulin Bihari Halder — 1981 DIGILAW 197 (CAL)

JUDGMENT 1. THIS second appeal arises from the judgment and decree passed by the learned Additional District Judge, 4th Court at Alpore on the 15th June, 1978 in Title Appeal No. 526 of 1974 reversing the judgment and decree passed by the learned munsif, 2nd Court, Diamondharbour in title Suit No. 271 of 1973. 2. THE plaintiff's suit was for declaration of his title to the suit property and for permanent injunction restraining the defendant from interfering with his possession. It is the plaintiff's case that he cultivated the suit property with. the help of laborers and cultivated fish in the tanks of the suit property. The defendants had no interest or possession in the suit property and as the defendants threatened to disturb the plaintiff's possession, hence the suit and the reliefs prayed for as mentioned above. ' The defendant's case was that the had been cultivating the suit land as a bargadar under the plaintiff for 16 years and he had been declared a bargadar in respect of plot No. 2052. He was in possession of 41 cents of land out of 70 cents in plot No. 2139 total being 1. 47 cents by the J. L. R. O concerned on 11. 10. 72 and the relevant records had been directed to be corrected by the order of the J. L. R. O On the ground alone, the suit is liable to be dismissed. The learned Munsif on a consideration of the evidence decreed the suit in favour of the plaintiff. On appeal to the learned District Judge, the learned District Judge was pleased to refer the matter to the J. L. R. O in view of the provisions of section21 (3)of the West Bengal Land Reforms Act. The J. L. R. O report was in favour of the defendant at the time of hearing of the appeal. The learned Advocate for the respondent plaintiff challenged the validity of the report submitted by the j. L. R. O concerned. It was contended on behalf of the respondent (defendant)that the J. L. R. O. had given no notice to the respondent when holding the relevant enquiry u/s21 (3) as directed by the learned Judge. The learned Advocate for the respondent plaintiff challenged the validity of the report submitted by the j. L. R. O concerned. It was contended on behalf of the respondent (defendant)that the J. L. R. O. had given no notice to the respondent when holding the relevant enquiry u/s21 (3) as directed by the learned Judge. Accordingly; the proceedings before the J. L. R. O. is void and the report submitted by the J. L. R. O should not be relied upon as the principles of natural justice had been violated by denying -the plaintiff respondent an opportunity to place his case before the J. L. R. O. it was submitted in the lower Appellate Court that the J. L. R. O. should be asked to submit a second report after hearing the respondent who was vitally interested in the matter. The learned Judge was of the view that he had no power to interfere after j. L. R. O. has submitted his report. Therefore, the report submitted by the j. L. R. O. had to be accepted by the learned Judge. Accordingly, he allowed the appeal of the defendant appellant after setting aside the judgment and decree passed by the learned Munsif, in this second appeal the only ground on which the appeal has been admitted is whether the Civil Court has jurisdiction to direct the J. L. R. O. to submit a second report if it is found that no opportunity had been given to the plaintiff to present his case at the time of the enquiry held by the J. L. R. O. in connection with the enquiry u[s 21 (3) of the Land Reforms Act. In other words, the plaintiff had been denied a hearing at the time of enquiry held by the J. L. R. O. does that empower the civil court to interfere in the matter us 21 (3) of the West Bengal land and Reforms Act ? 3. MR. Bhattacharjee appearing for the respondent has submitted that the learned Judge has no option but to accept the report of the J. L. R. O. made us 21 (3) of the West Bengal Land Reforms Act. 3. MR. Bhattacharjee appearing for the respondent has submitted that the learned Judge has no option but to accept the report of the J. L. R. O. made us 21 (3) of the West Bengal Land Reforms Act. He cannot go behind the report as under the Land Reforms Act if any grievance is made of a report us 21 (3) of the Land Reforms Act the proper remedy is to go up in appeal u/s 19 of the Land Reforms Act, the appellant, not having done so, cannot now challenge the validity of the report under consideration. It may be mentioned in this connection that though at the first hearing of the appeal it was submitted that the appellant had not preferred in appeal us 19 of the West Bengal Land reforms Act but on the adjourned date of hearing of this appeal his client pre feared an appeal though out of time with an application us 5 of the Limitation Act. before the appropriate authority. On that ground, he prayed that the hearing of the present appeal be stayed until the appeal by the appropriate authority under the Land Reforms Act had been disposed of by him. Mr. Bhattacharjee has pointed out that this; appeal was filed only after it was pointed out by him that the remedy of title appellant lay u/s 19 of the Land reforms Act but then the appeal was filed after 7 years delay and there is no knowing whether it will be at all admitted. Moreover, in a second appeal, matters that are not on record cannot be looked into. That may be a ground for review of the judgment which will be passed in this appeal but not for stay of this appeal. 4. I agree with this submission of mr. Bhattacharjee that upon taking hint during hearing of this appeal. Mr. Mukherjee's client, the present appellant, filed an appeal us 19 challenging the report of the learned Junior Land reforms Officer made in the case with an application explaining the long delay in filing the said appeal. That is no ground for staying the hearing of the present appeal. Mr. Bhattacharjee that upon taking hint during hearing of this appeal. Mr. Mukherjee's client, the present appellant, filed an appeal us 19 challenging the report of the learned Junior Land reforms Officer made in the case with an application explaining the long delay in filing the said appeal. That is no ground for staying the hearing of the present appeal. Mr. Mukherjee, however,, has pointed out that the Civil court has every power to interfere if the report made by the J. L. R. O. is vitiated for not giving notice to the appellant at the time, the enquiry was conducted which resulted in the submission of the impugned report to the learned District Judge. The report made by the teamed J. L. R. O. will be deemed to be nonest as it suffers fundamentally for want of notice to the appellant. The principles of natural justice have been set at naught and such a report will he considered as null and void. In this connection, Mr. Mukhetjee has referred to several reported case as, namely, AIR 1966 SC 1738 , AIR sc 84, AIR 1966 SC 893 , AIR 1970 SC 1298 paragraph 9, AIR 1975 SC 22 8 paragraphs 7,8,9 and 23 and 78. CWN page 271. The case reported in AIR 1966 SC p. 1738 is a case under the Sales Tax Act which is a complete Act in respect of revenue assessment and collection, refund of taxes. Which authorises investment of power in a hierarchy for the purpose of making assessment of tax, the authority has power to decide all questions arising before it. The order of the appellate authority is subject to the exercise of revisional jurisdiction u/s 115 which is declared final liability to pay taxes arise under the provisions of the Act and the quantum of the liability may be determined under the said Act. The jurisdiction of the civil court in these matters is therefore impliedly barred by the provisions of the act. But it is laid down that even if the jurisdiction of the Civil Court is excluded by statute whether the provisions of the statute have been complied with or the statutory tribunal has acted in confirmity with the fundamental principles of judicial procedure Or not civil courts have jurisdiction to examine those cases. On this passage Mr. Mukherjee relies. But it is laid down that even if the jurisdiction of the Civil Court is excluded by statute whether the provisions of the statute have been complied with or the statutory tribunal has acted in confirmity with the fundamental principles of judicial procedure Or not civil courts have jurisdiction to examine those cases. On this passage Mr. Mukherjee relies. The other case cited by Mukherjee is reported in AIR 1966 SC 893 (Ram Swamp and other vs. Shikar Chand and another ). The principle laid down therein is similar to that cited cited above. The bar to the jurisdiction of Civil Courts must be expressly stated in the relevant statute but this bar will not operate where the point taken before the Civil Court goes; to the root of the matter and would if upheld lead to the conclusion that the impugned order is a nullity. In the case reported in AIR 1969 SC 88 (Phulabhai vs, the State of Madhya Pradesh and Or.), a case under Madhya Bharat Sales Tax Act, it is laid down therein that the jurisdiction of the civil Courts are excluded under the following principles of:- 'where the statute gives a finality to the orders of the Special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit, Such provisions however do not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether the remedies normally associated with actions in civil courts are prescribed by the said statute or not. Challenge to the provisions of the particular act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. When the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. Question of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. 5. MR. Mukherjee also relies upon a decision of this Court by Mr. Justice Debi Prasad Pal reported in 78 CWN 271. This case relates to a suit instituted in the civil court challenging the legality of the certificate issued under the public demands recovery Act for realisation of a sum, being the liability under the Bengal Finance Sales tax Act 1941 for the period ending 31st chaitra, 1363 B. S. on the plea that the assessment was illegal and invalid as it was made without any notice upon the petitioner. The suit was decreed ex parte in favour of the petitioner. Thereafter another certificate for the like amount being the sales tax payable for the period was again filed. The matter went up to the Board of revenue where it was held that in view of section 21 of the Act, no assessment can be called into question in any civil court and that the declaration of civil court, that the assessment was illegal was an obiter. There after the petitioner filed a writ petition. It was held that in a suit instituted in the civil Court challenging the legality of the certificate issued under the Public Demands recovery Act on the ground that no notice was served in the assessment proceeding, the civil court has the jurisdiction to decide a question as to whether the assessment has been made in violation of the principles of natural justice. If an appropriate authority has acted in violation of the fundamental principles of judicial procedure that may tend to make the proceeding illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is only in those cases where the defect of the procedure is so fundamental that it goes to the root of the order and makes it invalid in law and void that the civil court can exercise its jurisdiction not with standing a provision to the contrary contained in the Statute. So far as the principles laid down in the case reported in AIR 1975 sc 2238 are concerned. Mr. Bhattacharjee has relied upon paragraphs 7, 8, 9 and 23. The gist of the principles laid down therein is that the civil courts cannot interfere in an industrial matter for enforcement of right or obligation created under the industrial disputes Act. If a dispute is not an industrial dispute or does not relate to enforcement of any other right under the Act, the remedy lies only in the civil Court. If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction' of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is patent to be granted in a particular remedy. If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction' of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is patent to be granted in a particular remedy. In this particular case the suit was filed in relation to the for cement of a right created under the Act. Accordingly, it was held that the remedy in civil court was barred. The only remedy available to the workmen concerned was raising an industrial dispute which in tact was raised illegally after institution of the suit, and the dispute referred to the government by the Industrial Tribunal. 6. CONSIDERING the principles laid down in these cases cited above, I must hold the Civil Court has jurisdiction to interfere as it is challenged that the Junior Land Reforms Officer, when he held an enquiry on the basis of which the report u/s21 (3)of the Land Reforms Act was submitted by him to the learned Additional District Judge in connection with the present case, no notice was served on the present appellant so that he had no opportunity to place he case before the Junior Land Reforms Officer. Accordingly, the report is a void report. The learned District Judge is directed to send back the matter to the junior Land Reforms Officer to submit a report according to law after giving proper opportunity to the appellant/petitioner to be heard in the matter. In the result, I remand the case to the learned Lower Appellate Court with the direction that the Junior Land Reforms Officer be directed to make a fresh enquiry after giving a notice to the appellant and submit his report u/s21 (3) of the Land Reforms Act. The learned Judge after considering that report will dispose of the appeal before him. There will be no order for costs. The Rule which has been heard along with this appeal is in connection with the application made on behalf of the respondent for making an order for furnishing security for the share of the bargadar in the produce of the suit property which will be75. There will be no order for costs. The Rule which has been heard along with this appeal is in connection with the application made on behalf of the respondent for making an order for furnishing security for the share of the bargadar in the produce of the suit property which will be75. 25 that is 25% to the landlord and 75% to the bargadars and considering the quantum of produce and also the previous order made for security and the fact that two years have lapsed since then the appellant is directed to furnish a sum of Rs. 2,000/- in the Lower appellate Court as security for the share of the produce of the bargadar in favour of the respondent in the event of the case is disposed of in favour of the present respondent by the lower appellate court. Cash security be furnished within two months from the date in default this order will be subject to execution. Rule is disposed of accordingly. 7. THE appeal is disposed of as above. 8. THE preparation of formal decree is dispensed with. Let the copy of the judgment be sent at once to the court concerned.