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2011 DIGILAW 650 (CAL)

Hiranmoy Dey v. Dilip Kumar Koner

2011-05-10

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal, J.: This application is directed against the Order No.29 dated July 27, 2010 passed by the learned Civil Judge (Junior Division), Second Court, Burdwan in Title Suit No.185 of 2007 thereby rejecting an application under Section 21(3) of the West Bengal Land Reforms Act, 1955. 2. The plaintiff/opposite party instituted a suit being Title Suit No.185 of 2007 against the petitioners and the opposite party no.2 for a decree of declaration of his right, title and interest in the suit property, eviction, damages, permanent injunction, etc., before the learned Civil Judge (Junior Division), Second Court, Burdwan. The petitioners are contesting the said suit by filing a written statement denying the material allegations made in the application. It is the specific contention of the petitioners that they are the Bargadars in respect of the suit property as described in the schedule of the plaint. At the stage of peremptorty hearing, the petitioners filed an application under Section 21(3) of the W.B.L.R. Act, 1955. The learned Trial Judge has rejected that application by the impugned order. Being aggrieved, this application has been preferred. 3. Now, the point for consideration is whether the impugned order should be sustained. 4. Upon hearing the learned counsel for the parties and on perusal of the materials on record I find that in paragraph no.6 of the written statement filed by the petitioners as appearing as Annexure – ‘A’ to the application, the petitioners have claimed that they have been cultivating the plot no.217 measuring 1 acre 10 decimals of land for a long period and for that reason, the said suit is liable to be dismissed under the provisions of Section 21(3) of the said 1955 Act. The plaintiff has contended that the petitioners were licensees under the father and grandfather of the plaintiff and the license ceased after their death. The petitioners have never been recorded as bargadars under the plaintiff or his predecessor-in-interest at any time and he did not deliver bhag produce to the plaintiff at any point of time. So, the application is liable to be rejected. Thus, I find that one of the main issues involved in the suit is whether the petitioners are bargadars in respect of the suit property. This has to be decided in accordance with law. So, the application is liable to be rejected. Thus, I find that one of the main issues involved in the suit is whether the petitioners are bargadars in respect of the suit property. This has to be decided in accordance with law. Now, in order to elucidate matter in dispute, it will be wise and proper to quote the provision of Section 21 of the 1955 Act and the said provision is quoted below:- Bar of Jurisdiction. – (1) No order or other proceedings whatsoever under this Chapter shall be questioned in any Civil Court and no Civil Court shall entertain any suit or proceeding in respect of any matter mentioned in [sections 17, 18, 19B and 20B]. (2) On the appointment of officers or authorities under this Chapter all proceedings pending before any Bhagchas Conciliation Board established under the West Bengal Bargadars Act, 1950, shall stand transferred to the officer or authority having jurisdiction over the area in which the land, to which the proceedings relate, is situated. (3) If any question as to whether a person is or is not a bargadar arises in the course of any [suit, case, appeal or other] proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of section 18 [for decision and such Court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in sub-section (1) of section 18 to whom the question was referred]. (4) On a reference being made under sub-section (3) of this section to the officer or authority mentioned in subsection (1) of section 18 for decision, such officer or authority shall personally make such enquiry as may be prescribed, shall arrive at a decision after giving all the parties to the suit, case, appeal or other proceedings an opportunity of being heard and shall communicate his or its decision in the prescribed manner to the Court which made the reference. After communication of his or its decision to the referring Court such decision shall not be altered or revised except in an appeal under section 19. 5. After communication of his or its decision to the referring Court such decision shall not be altered or revised except in an appeal under section 19. 5. Thus, in view of the pleadings of the parties the question whether the defendant is a bargadar or not, is a vital question in determining the lis between the parties in the said suit. The determination of such lis is entrusted to the authority mentioned in Section 21(3) of the said 1955 Act and appointed under Sub-Section (1) of Section 18 of the said Act. The court is empowered to decide other issues to be framed in the suit. But so far as the question of determination whether the defendant is a bargadar remains to be decided by the authority mentioned in the said Section. In that case, the Court shall refer the matter to the concerned officer for decision and there is no other way or determining the said question by the Court itself. But the learned Trial Judge has gone further in observing in the following manner:- The defendant did not file a single scrap of paper to show that even prima facie, he cultivated the property as a bargadar or that he used to give bhag produce to the land owner. The burden lies upon the petitioner to establish prima facie that he is a bargadar. So, the prayer is rejected. 6. The court cannot depend on the production of the receipt of bhag produce by the defendant to determine whether he is a bargadar or not. This is the exclusive jurisdiction of the officer or authority mentioned under Section 18(1) of the said 1955 Act. The Court has no option but to refer the matter to the officer or the authority mentioned in the said sub-section. 7. In this regard, Ms. Mitra has referred to the decision of Harendra Nath Sarkar & ors. v. Dibakar Mondal & ors. reported in 2001 (1) CLJ 431 wherein this Hon’ble Court has held that reference to the statutory authority mentioned in Section 18(1) of the Act is mandatory. In that case, the plaintiff filed a suit for declaration of title and permanent injunction against the defendants. The defendants took the plea of barga rights over the suit lands. The suit was decreed in favour of the plaintiff. In that case, the plaintiff filed a suit for declaration of title and permanent injunction against the defendants. The defendants took the plea of barga rights over the suit lands. The suit was decreed in favour of the plaintiff. At the time of disposal of the second appeal, this Hon’ble Court set aside the orders of the learned Trial Court as well as the Lower Appellate Court and directed that the Courts below acted illegally in deciding the issue as to whether the defendants were bargadars or not under the plaintiff by not having referred the same to the appropriate authority under Section 18 of the 1955 Act. This Hon’ble Court has also held that the word ‘shall’ used in Section 21(3) of the Act indicates that the reference to the authority is mandatory. 8. Similarly, Ms. Mitra has also referred to the decision of Haradhan Das v. Rakshakar Mukhopadhyay & anr. reported in 2009(1) CLJ (Cal) 148 wherein it has also been observed that the expression ‘shall’ appearing in sub-section (3) of Section 21 of the W.B.L.R. Act, 1955 mandatorily bars the jurisdiction of the Civil Court, the moment a question arises for consideration as to whether a person is or is not a bargadar. 9. The ratio of two decisions, I hold, is very much relevant in the instant case. 10. Thus, in view of the above observations, the provisions of Section 21(3) of the said Act and the decisions referred to, I am of the opinion that the findings and observations of the learned Trial Judge cannot be supported. He has failed to exercise the jurisdiction properly. Thus, he has committed errors of law in disposing the said application under Section 21(3) of the said Act. The impugned order cannot be supported. 11. The revisional application is, therefore, allowed. The impugned order is hereby set aside. The learned Trial Judge shall refer the matter to the concerned officer or authority for decision whether the defendant is a bargadar or not with respect to the land in suit. He shall indicate the time bound within which the concerned officer or authority has to submit report keeping in view that the matter is pending for a long time and thereafter on receiving the report from the concerned officer or authority, he shall proceed with the suit in accordance with law. 12. He shall indicate the time bound within which the concerned officer or authority has to submit report keeping in view that the matter is pending for a long time and thereafter on receiving the report from the concerned officer or authority, he shall proceed with the suit in accordance with law. 12. Considering the circumstances, there will be no order as to costs.