Birendra Nath Gayen vs Kali Charan Mondal

S.K. Bhattacharyya, J.—This Rule was obtained by the Plaintiff u/s 115 of the CPC against an order passed by the Subordinate Judge, Eighth Court, Alipore, in T.S. No. 28 of 1974 directing that a reference be made to the local J.L.R.O. for a decision on the question whether the Defendants in the suit were bargadars in respect of the suit property.

Facts of the case shortly are as follows:

The Plaintiffs-Petitioners claim to have purchased 3.39 acres pf land appertaining to plots Nos. 29, 30 and 34 of mouza Chhoto-Saheb-Khali, P.S. Hingalgunge, district 24-Parganas, on the basis of four registered deeds of conveyance purported to have been executed by the previous owners Banachari Gayen and his co-sharers sometime in June 1973. There were some bargadars in these lands who were alleged to have surrendered the lands in favour of the previous owner under a registered istafanama on June 22, 1971. The owners then held the lands in khas for some time and thereafter, transferred the same to the Plaintiff in June 1973. The Defendants, who are stated to have unsuccessfully attempted to purchase the property, thereafter set up a claim of Barga right in the suit property and initiated certain proceedings u/s 144 of the Code of Criminal Procedure in the Basirhat Criminal Court. The Plaintiffs were, accordingly, compelled to institute the suit for a declaration of their title to the property on the allegation that the Defendants were not bargadars in respect of the suit property and for a permanent injunction for restraining the Defendants from interfering with v their possession. After the filing of the suit, the Plaintiffs applied for and obtained an ex parte order of temporary injunction on July 16, 1974. The order was subsequently re-opened by the learned Judge at the instance of the opposite parties and was taken up for consideration. The Defendants raised a contention that in view of the amendment of the West Bengal Land Reforms Act in June 1974 (hereinafter referred to as the ''Act'') the learned Subordinate Judge was not competent to decide the question as to whether the Defendants were bargadars in respect of the property and the matter was required to be referred to the J.L.R.O. concerned in view of the introduction of Sub-section (3) to Section 21 of the Act by West Bengal Land Reforms (Amendment) Act, 1974 (to be hereinafter referred to as the amending Act). The learned Subordinate Judge upheld the contention of the Defendants and referred the matter to the J.L.R.O. Against this order the Plaintiffs obtained the instant Rule. This Rule is not opposed by the Defendants opposite parties.

Mr. Banerjee appearing on behalf of the Petitioners has contended before us that apart from the fact that the learned Judge was competent to make an interlocutory order in the instant case, Sub-section (3) of Section 21 did not have any application to the facts of this case, as the said provision was not retrospective in operation. The amending Act came into force on June 21, 1974 and the suit was instituted on June 11, 1974. Section 21(3) of the West Bengal Land Reforms Act as introduced by the amending Act are in these terms:

(3) If any question as to whether a person is or is not a bargadar arises in the course of any 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.

Mr. Banerjee contends that the right to obtain relief before a civil and criminal Court by a party is a substantive right, which has not been taken away by the introduction of the said sub-section inasmuch as it did not have any retrospective effect. The instant suit was instituted on June 11, 1974 and the question whether the Defendants were or were not bargadars arose as soon as the plaint was held before the Court. Consequently, the issue before the civil Court was already there when the amending Act came into force with effect from June 21, 1974.

The question, therefore, arises whether by introduction of Sub-section (3) of Section 21 subsequent to the filing of the instant suit the substantive right of the Plaintiff could be said to have taken away.

It is well-settled that a Legislature is competent to make the provisions of an Act retrospective and a provision

is to be deemed to be retrospective which takes away or impairs any vested right acquired under the existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.

The said Rule, however, is subject to certain limitation. As pointed out by Lindley L.J. in Lauri v. Renad (1892) 5 Ch. 402 (421) that it was a fundamental rule of English law that no Statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective effect than its language renders necessary.

In the absence of anything in an Act to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed and the general rule has thus been expressed in Craies on Statute Law (1971 ed., 401):

when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments unless in express terms they apply to pending actions do not affect that. But there is an exception in this rule, namely, where enactments merely affect procedure and do not extend to rights of action.

Undoubtedly, right to obtain relief before a civil and criminal Court is a substantive right of the party, which can only be taken away by express provision in the law or by necessary implications. In the instant case, the amending Act provides no indication, either expressly or by necessary implication, that Sub-section (3) of Section 21 is to have retrospective operation. The question whether the Defendants were or were not bargadars arose in this suit as soon as the plaint was filed. Such a question, of course, may arise in a suit subsequent to the filing of the plaint, for the Defendants may raise the issue before the Court that he was a bargadar in respect of the property although the plaint may provide no clue to that issue. In the instant case, it was not necessary for us to enter into the question as to whether subsequent raising of such a question in a suit after Sub-section (3) of Section 21 was introduced by the amending Act would be hit by it or not and we leave that question open. We accept the contention of Mr. Banerjee and hold that the learned Subordinate Judge was not justified interfering the question to the J.L.R.O. concerned for a decision inasmuch as Sub-section (3) of Section 21 did not have any application in the instant case. The order of the learned Subordinate Judge is, accordingly, liable to be set aside.

We have carefully considered the order passed by the learned Subordinate Judge on July 16, 1974, whereby he granted the temporary injunction prayed for by the Plaintiffs ex parte. The opposite parties did not come forward to oppose this Rule. We, accordingly, restore the said order of temporary injunction of the learned Subordinate Judge and set aside the order passed by his successor on February, 1975. The Rule, accordingly, succeeds and is made absolute. There will be no order as to costs.

Janah, J.

I agree.