MAHENDRA NATH ROY Vs. DELRADDI CHAKDAR

JUDGEMENT

(1.) The facts out of which this reference to the Full Bench has arisen are briefly as follows: In April, 1953 the plaintiff Mahendra Nath Roy instituted a suit in the court of the learned Second Munsif, Alipore, exercising the powers of a Small Cause Court Judge, under the Provincial Small Cause Courts Act (Act IX of 1888), against the defendants Delraddi Chakdar and Debaraddi Chakdar, being S.C.C. No. 213 of 1953, claiming a sum of Rupees 319-8-0, being the value of the plaintiff's half share of the produce of the land in suit. The plaintiff claimed that the defendants were Bhag Chasis under the plaintiff and that the defendants had neither delivered to the plaintiff his share of the produce for the period Ist Baisakh 1357 B.S. to the end of Chaitra 1359 B.S. nor paid to him the value thereof. The defendants denied the allegations in the plaint. They denied that they were Bhag Chasis under the plaintiff, asserting that they were tenants under him. It appears, however, that the tenancy right of the defendants in the suit land had been negatived in previous proceeding and before the learned Munsif they contested the suit on the ground that the Court had no jurisdiction to entertain the suit in as much as the suit was barred by the provisions of Sections 7(1)(a) and 9(2) of the West Bengal Bargadars Act 1950 (West Bengal Act II of 1950) (hereinafter referred to as the "said Act"). The learned Munsif upheld the contention and ordered that the plaint be returned for being filed in the proper forum. The plaintiff then made an application for revision under Section 25 of the Provincial Small Cause Courts Act 1887, which empowers die High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, to call for the case and pass such order with respect thereto as it thinks fit. The matter came up before Debabrata Mookerjee, J. He referred to certain judgments of this Court including the Division Bench judgment in Md. Ismail Miah v. Tom Munda (1955) 59 Cal WN 658 to which he was himself a party. In that case, the judgment was delivered by K. C. Das Gupta J., who held that if no Board had been established for the local area within which the land was situated, there could not be a decision by a Board, but that did not give the Civil Court a right to entertain a suit relating to matters under Sub-section (1) of Section 7 of the said act, because such matters must be decided by the Board referred to in that Sub-section. The learned Judge felt himself bound by the decision, but was of the opinion that in the matter before him, a distinction could be drawn inasmuch as the dispute related to the division or delivery of the produce, whereas in the Bench decision, it was the question of termination of cultivation as referred to in Clause (c) of Section 7(1) of the said Act, and the question did not fall to be considered as to whether a dispute relating to the division or delivery of the produce included also the money equivalent of such produce, with the result that the jurisdiction of the Civil Court would be ousted even if the claim related to realisation of the price of the bhag share of the produce, The learned Judge referred to an un-reported decision of Das Gupta J. C.R. No, 1415 of 1954 (Cal), Dhirendra Nath Chakraborty v. Ramlal Mandal decided on 7-1-1955 in which the learned Judge was dealing with a claim for the value of half the produce deliverable by a Bargadar and considered the question as settled by the said Division Bench ruling, and held that the suit was barred under Section 9(2) of the said Act. Mookerjee J., did not agree with the decision but, regard being had to the importance of the matter, referred it for disposal by a Division Bench. The Division Bench presided over by Bachawat, J., considered the D. B. case of (1955) 59 Cal WN 658 (supra), but felt that they were unable to agree with the view expressed therein to the effect that the Civil Court had no jurisdiction in regard to the matters specified in Section 7(1) of the said Act, even where no board was established in the local area where the dispute arose or the land was situate. Bechawat J. pointed out that the attention of the learned Judges had not been drawn to the decision of G.N. Das, J. in Bharat Chandra Maiti v. Gour Chandra Adak and to the decision of Sen, J. in Krishna Chandra v. Panchu Gosh, where a contrary view had been expressed. Bachawat, J. was also of the opinion that a suit by an owner claiming the money equivalent of his share of the produce of the land cultivated by Bargadars, raised a dispute with regards to the division and delivery of the produce, within the meaning of Section 7(1) (a) of the said Act.

(2.) The matter was referred for determination by the Full Bench, atter formulating the following question:--

(3.) It is common case that on the date of the institution of the suit, namely the 15th April 1953, no Bhag Chas Conciliation Board was established by the State Government under Sec. 6 of the said Act for the local area in which the land in suit was situate. In order to understand the respective contentions of the parties, it will be necessary to consider certain provisions' of the said Act. The preamble of the said Act shows that the Act was passed to provide for the regulation of certain rights inter se of bargadars and owners of land and for the establishment of Bhag Chas Conciliation Boards for the settlement of disputes relating to certain matters between bargadars and owners of land. Section 2(b) defines the word "bargadar" as meaning a person who under the system generally known as adhi, barga or bhag, cultivates the land of another person on condition of delivering a share of the produce of such land to that other person, but shall not include any such person (i) if he has been expressly admitted to be a tenant by the owner in any document executed by him or executed in his favour and accepted by him, or (ii) if he has been held by a Civil Court to be a tenant; Section 2 (c) of the said Act defines the word "Board as meaning' a Bhag Chas Conciliation Board established under Sub-section (1) of Section 6, and includes an officer authorised under the proviso to Sub-section (4) of that Section. SubSection (g) defines the word "owner" as meaning, in relation to any land cultivated by any person as a bargadar, the person whose land the bargadar so cultivates. Section 3 of the said Act, deals with the division of produce and lays down that the produce of any land cultivated by a bargadar shall be apportioned between the bargadar and the owner of such land in accordance with the principles specified therein. Section 4 lays down that as between a bargadar and the owner whose land he cultivates, the bargadar shall have the prior right to supply plough-cattle, plough, other agricultural implements or manure, or to bear any other expenses of cultivation. Section 5(1) prohibits the cultivation of land by bargadar except of the grounds specified therein, with the proviso that the cultivation of such land by bargadar shall not be terminated on any of the specified grounds except under the orders of a Board. Section 5 (2) provides for the restoration of the bargadar to cultivation, in certain cases, and also makes provision for compensation. Section 6 provides for the establishments of Bhag Chas Conciliation Boards. Sub-section (1) provides that the State Government may, by notification, establish one or more Bhag Chas Conciliation Board for any local area specified in notification. Sub-section (2) provides that every Board shall consist of a Chairman who shall be a person in the service of Government and four other members, two of whom shall be representatives of bargadars cultivating lands situated in the local area for which the Board has been established and the other two shall be representatives of owners of lands cultivated by such bargadars. Sub-section (3) provides that the Chairman and other members of the Board shall be appointed by the State Government and each of them shall hold office for such term not exceeding two years as the State Government may specify at the time of his appointment. Sub-section (4) empowers the State Government, at any time, to cancel by notification, the appointment of the Chairman or of any other member of a Board or dissolve any Board, stating the reasons for such dissolution in the notification. There is a proviso stating that when a Board is dissolved and the State Government does not consider the appointment of another Board to be necessary or desirable, it may authorise any person in the service of Government to exercise all or/ any of the powers of the Board, as it thinks fit. It is necessary to note that under Section 6, it is entirely discretionary for the State Government to establish a Bhag Chas Conciliation Board for any local area. In other words, the power of the State Government to establish Boards for any local area is optional, and the State Government is not bound to establish a Board for each local area. The statute contemplates quite clearly that in spite of the passing of the Act, there may be local areas for which no Board is established by the State Government. Section 7 confers exclusive jurisdiction upon a Bhag Chas Conciliation Board to decide certain disputes. Subsection (1) is important and is set out below:--