Debu Prasad Bag vs Nikhil Kundu

Harish Tandon, J—This revisional application is directed against the judgement and order dated 17th April, 2015 passed by the learned Additional District Judge, First Court, Burdwan in Miscellaneous Appeal No. 1 of 2015 affirming the judgment and order dated 3rd May, 2013 passed by the learned Civil Judge (Senior Division), First Court, Burdwan in Preemption Case No. 16 of 2008.

Section 8 of the West Bengal Land Reforms Act, 1955 contemplates three categories of person to apply for preemption if the plot of land is sold, transferred and conveyed to stranger. At the time of promulgation of the said Act, such right was conferred upon the co-sharer of a raiyat and the adjoining owner but subsequently by amending the Act, the right of a bargadar under the aforesaid provision was further recognized.

As of this date, it is a settled law that a proceeding under Section 8 of the said Act is in the nature of the original proceeding though originated on the basis of an application. The Co-ordinate Bench in case of Subir Ranjan Mondal Vs. Sita Nath Mukherjee, AIR 1994 Cal 166 : 98 CWN 544 held:

"82. In view of the discussions made hereinabove, I am of the view that an application for pre-emption under Section 8 of the Act must be deemed to be a plaint filed in a suit. Therefore, Section 5 of the Limitation Act cannot be applied in a proceeding or to an "application" under Section 8 of the Act as Section 5 of the Limitation Act itself omits its application in suits. Accordingly, it is decided that Section 5 of the Limitation Act has no manner of application to Section 8 of the Act."

The identical point cropped up before the Division Bench in case of Serish Maji Vs. Nishit Kumar Dolui, (2000) 2 CALLT 125 because of two conflicting decisions of the equal strength operating in the field. Though in case of Serish Maji (supra), it was held that even if, a proceeding under Section 8 of the said Act originates on an application but because of the procedure for determination under the said provision, it is in effect a plaint and, therefore, the said proceeding is the original proceeding and Section 5 of the Limitation Act does not apply. On the other hand, the judgement rendered in case of Chandra Sekhar Sarkar Vs. Baidyanath Ghosh and Others, AIR 1982 Cal 6 : 86 CWN 111 held that Section 29 Sub-section 2 of the Limitation Acts, 1963 makes the provision of the said Act applicable to a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955 in absence of any express exclusion provision. The Division Bench noticed the definition of an application and suit given under Section 2(b) & Section 2(1) of the Limitation Act and held that those are judicial proceeding not only for a complete remedy but also a part of larger action or original proceeding. Ultimately the Division Bench held that the law declared in case of Minor Subir Ranjan (supra) is a correct proposition of law. Finally the Supreme Court in case of Gopal Sardar Vs. Karuna Sardar, (2004) 3 SCALE 36 : (2004) 4 SCC 252 : (2004) 2 SCR 826 : (2004) AIRSCW 3302 : (2004) AIRSCW 5102 : (2004) AIRSCW 1438 : (2004) 5 Supreme 402 : (2004) 6 Supreme 219 : (2004) 5 Supreme 328 held the proposition as laid down in case of Subir Ranjan & Serish Maji (supra) to be a correct proposition of law in the following:

"12. A Bench of three learned Judges of this Court in CST v. Parson Tools and Plants dealing with the question of limitation in relation to revision filed beyond the time prescribed by Section 10 of the U.P. Sales Tax Act, 1948, in AIR p. 1045, para 17, has observed thus: (SCC p. 29, para 22)

"22[17]. Thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act."

In the same judgment it is expressed that (at SCC p. 29, para 23)

"where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the lawgiver".

The conclusion reached by the Division Bench of the High Court in Serish Maji case that Section 5 of the Limitation Act is not applicable to proceedings under Section 8 of the Act is correct and acceptable.

Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of pre-emption by different categories of people with no provision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being a self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and Parson Tools it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the non-applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate, in the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav case and subsequently followed in Anwari Basavaraj Patil case even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the legislature to apply Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to "express exclusion" of it satisfying the requirement of Section 29(2) of the Limitation Act.

Therefore, there is no dispute that though a judicial proceeding commences on an application under Section 8 of the said Act, it is the original proceeding and, therefore, Section 5 of the Limitation Act does not apply.

Though the point agitated before this Court is not whether a proceeding under Section 8 of the said Act is the original proceeding or the other proceeding but the reference becomes necessary as a point is agitated before this Court on the applicability of Section 21(3) of the said Act.

The Chapter 2 of the said Act which contains a broad head "raiyats" and deals with the provisions relating to the raiyat and imbibed within itself, Section 8 which relates to right of preemption in respect of a plot of land if sold and transferred to a third party. Chapter 3 of the said Act contains the provisions relating to bargadars and their rights, duties and safeguards including the jurisdiction. After the West Bengal Land Reforms Amendment Act, 1981 having retrospective effect from 07.08.1969, the right of the bargadar to claim preemption was provided though in order of preference, the right of the bargadar stands on an upper pedestal than the rights of a co-sharer and the adjoining owner.

Admittedly, in the instant case, the preemptor applied under Section 8 of the said Act as a co-sharer of a raiyat of a plot of land sold, transferred and conveyed by the other co-sharer to the petitioner herein. The entire petition is silent on creation of right to cultivate the land as bargadar. In the written statement not only the plea of non-joinder of necessary parties are taken as a defence but it was stated that the petitioner being the pre-emptee was cultivating the land prior to such purchase and used to give the share of crops to the petitioner and his vendors. It is categorically admitted that the petitioner never recorded his name in the record of right as bargadar. From the judgement of the Trial Court, it does not appear that any issue is framed as to whether the petitioner is a bargadar in respect of a suit plot of land or not. The Trial Court ultimately held that the plot of land being unpartitioned and the petitioner being the admitted co-sharer of a raiyat is entitled to claim preemption and allowed the said application. Even before the Appellate Court, nothing could be produced by the petitioner and the said judgement and order was affirmed.

The only point agitated before this Court is that both the Courts below ought to have referred the matter to a prescribed authority under Section 18 of the said Act as there was a question raised in a preemption proceeding as to whether the petitioner is a bargadar or not under Section 21(3) of the said Act. Section 21 which is in Chapter 3 of the said Act relates to a bar of jurisdiction to entertain any suit or proceeding in respect of any matter mentioned in Section 17, 18, 19B & 20B and any question as to whether a person is or is not a bargadar arise in course of a suit, case, appeal or other proceeding before any Civil or Criminal Court, the Court shall refer such dispute to the officer or authority mentioned in Sub-section 1 of Section 18 and after receiving the decision shall dispose of the same in accordance with the decision communicated to it by the said prescribed officer or authority.

There is no quarrel that the bar is not only restricted to a matter mentioned in Section 17, 18, 19B & 20B but because of a subsequent amendment having brought in Sub-section 2 of Section 18, the expression "or otherwise" extended the said provision to a case where the question arises as to whether a person is a bargadar or not.

In case of Chapala Bala Adhikary Vs. Monoranjan Das, (1975) 2 ILR (Cal) 620 , the Bench noticed the amendments brought in Section 18(2) and Section 21 of the Act and held that the expression "or otherwise" certainly sweeps within it ambit the question relating to a status of a person as bargadar. In the said decision, a suit was filed for declaration that initially one Harendra Nath Das was a bargadar under Chapal Bala and had executed and registered Estafanama in her favour and cultivating through the hired labourers and confirmation of possession and permanent injunction against the defendant therein from creating any disturbances in cultivating the said land. The defendant took the plea that he is a bargadar and, in fact, cultivating the land. The Trial Court referred the question to a prescribed authority under Section 21(3) of the said Act which is assailed before the High Court. In the above backdrop, it is held:

"16. Thus the applicability or otherwise of section 21(3) would depend upon the frame of the suit, the relief prayed and the issues involved Section 21(3) is attracted only when the question of barga right directly arises and not merely by implication. There may be also cases where the officers or authorities under Section 18(1) had already finally adjudicated the question whether a person was a bargadar or not. In that event any question within the meaning of section 21(3) cannot again arise in a subsequently instituted suit or proceeding in civil or criminal court, between the same parties or their successors. I have already mentioned that in the context of section 21(3) the expression ''question arises'' means when parties join issue, i.e.; question in controversy and this expression ''question'' under section 21(2) bears nearly the same meaning as ''issue'' within the meaning of Order 14, Rule (1) of the Civil Procedure Code. Therefore, when the question of applicability of sub-section (3) is raised the court should examine the pleadings and consider the issues which arises for decision in the suit. Thus it would be convenient to frame issues and then to consider whether any question as contemplated under section 21(3) arise for determination or decision. In case the answer is in the affirmative the court should refer the said question to the authority or officer mentioned in sub-section (1) of section 18. The Court would adjourn the suit or proceeding or try the remaining issues as may be appropriate and convenient in the facts and circumstances of a particular case or proceeding. Even if the question contemplated by sub-section (3) of section 21 arises in a suit or proceeding, the Court is not powerless to grant interlocutory orders in such suit or proceeding. The sub-section (3) requires that the authority or officer mentioned in sub-section (1) shall decide the question whether the person concerned is a bargadar or not even when the said ''question arises'' in any suit or proceeding before any civil or criminal court. Chapter III of the West Bengal Land Reforms Act, 1956 however, does not empower the officer and authorities mentioned in section 18(1) to pass interlocutory orders. Secondly we have already mentioned that under sub-section (3) of section 21 only decision of an issue is to be referred to the officer or authority under section 18(1). Therefore, the Court retains jurisdiction to try the remaining issues in the suit and to exercise all powers of a civil court in relation to such a suit except the determination of the issue or question whether a person is a bargadar or not."

The same Hon''ble Judge in case of Gobinda Prasad Samanta -v-State of West Bengal reported in 1979 (2) CLJ 319 held:

"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, appealable 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)."

There is no quarrel to the proposition that in a suit, case or other proceeding instituted before the Civil or Criminal Court, any question as to whether a person is a bargadar or not arises, it is imperative and mandatory to refer the said question to a prescribed officer or authority under Sub-section 1 & Section 18 of the said Act. Section 8 which is included in Chapter 2 of the some act uses the expression "Munsif" and Section 9 includes the word "District Judge" to entertain the proceeding under the aforesaid section and not the word "Court". The Special Bench in case of Pashupati Adhikary Vs. Pradyut Kumar alias Tarapada Adhikary, (2003) 2 CALLT 538 : 108 CWN 72 held that the Munsif or the District Judge mentioned in the aforesaid provision are not a persona designata but essentially having a trapping of a Court in these words:

"18. On the basis of the aforesaid ratio laid down by the earlier decision of the Apex Court their Lordships observed that the District Judge under section 18 of the Act deciding the matter is not persona designata and he is a person who is adjudicating the matter as "District Judge". It was observed by their Lordships as under:

"When the aforesaid well settled tests for deciding whether an authority is a Court or not are applied to the powers and functions of the appellate authority constituted under section 18 of the Rent Act, it becomes obvious that all the aforesaid essential trappings to constitute such an authority as a Court are found to be present. In fact, Mr. Narimal learned counsel for the respondent also fairly stated that these appellate authorities would be Courts and would not be persona designata."

Same is the position here in the present case that when the District Judge decides the matter as appellate authority against the order passed by the Munsif he is not persona designata, he decides the matter as a Court, though not strictly complying with the provisions of the Civil Procedure Code as specific procedure has been prescribed for disposal of the pre-emption matter under section 9 of the Act of 1955. But, nonetheless, the fact remains that both the officers are essentially judicial officers and their orders cannot be made subject to review by the administrative Tribunal."

The expressions "Civil or the Criminal Court" is not defined in any act except the hierarchical system under Section 3 of the Code of Civil Procedure where the District Judge is subordinate to High Court and every Civil Court of a great inferior to that of a District Court and every Court of Small Causes is subordinate to High Court and the District Court. Section 9 of the Code clearly provides that the Court shall have jurisdiction to try all suits of a civil nature except the suits of which the cognizance is either expressly or impliedly barred. Section 15 of the Code says that every suit shall be instituted in the Court of a lowest grade competent to try it. Section 16 to 21A of the Code contains provision relating to pecuniary and other limitations of the Code in entertaining a suit pertaining to the subject matter specified therein. Therefore, the Civil Court have jurisdiction to decide the rights of the parties subject, however, to the place of suing. The Civil Court is competent to adjudicate and decide finally the civil disputes unless the jurisdiction has been completely ousted either expressly or by necessary implication. Though the Munsif or the District Judge are not persona designata as held in Pasupati (supra) and have a trapping of the Court but such jurisdiction is exercised under the Special Act and is not as wide as the Civil Court. The legislature never uses the expression unnecessarily or without any purposes. Section 21(3) of the Act though include the proceedings but such proceeding must be initiated either before the Civil or the Criminal Court. The power under Section 8 of the said Act is to be exercised within the circumference of the said section and not beyond it.

For example, the learned Munsif having territorial jurisdiction can instantly go in to the question whether the deed on the basis whereof the preemption is claimed under the said provision is valid and legal or not but does not enjoin the power when the challenge is made to a title of the predecessor-in-title of the vendor of the said deed to declaration that the deed on the basis of which the right is asserted by the said predecessor-in-title is void being fraudulent one. It is, therefore, a limited jurisdiction which the Munsif or the District Judge exercised within the periphery of Chapter 2 of the said Act and not as a Civil Court in general sense. Though the proceeding under Section 8 is of civil nature but the authorities mentioned therein are exercising the power in Limited sense having trapping of Court.

The object and purpose behind incorporation of Section 21(3) of the said Act is to give primacy to an officer or the prescribed authority appointed under the said Act to adjudicate the disputes which impliedly takes away the jurisdiction of the Civil Court when a suit or the proceeding is instituted for declaration of right as bargadar.

This Court must also record that it would be a premium to an unscrupulous litigant if the Court refers the dispute to a prescribed officer or authority simply on the basis of a stray averment that the defendant is a bargadar. Unless there is a pleading, which if ultimately proved, is sufficient to declare such status, the Court should not mechanically refer such dispute to a prescribed officer or authority under Section 21(3) of the said Act.

In the instant case, the petitioner admits the status of the opposite party as co-sharer in a plot of land but asserts that he was cultivating the said land and were handing over the share of produce to them. There was no attempt on the part of the petitioner to invite the attention of the Court to Section 21(3) of the said Act nor an objection was put forth when the Court framed the issues in presence of the parties. The petitioner also did not apply for an additional issue from where it can be deciphered that the said question, in fact, did arise in the matter. Both the Courts recorded the evidence adduced by the respective parties and the petitioner in his evidence categorically admitted that before the purchase, he along with other co-sharer used to look after those properties. If he was not exclusively cultivating the land of the other and admitted to have cultivated along with the raiyat, both the Courts, in my view, have not committed error in disbelieving the alleged statements of the petitioner. The Shorter Oxford Dictionary defines the word "question" as a verb to mean "to examine judicially" and the same arises when an issue is presented before the Court as held in Chapala Bala (supra) in these words:

"15. The Shorter Oxford Dictionary also notes that the term ''question'' as a verb also means ''to examine judicially''. Thus section 21(3) would be applicable only when for disposal of a suit or proceeding it would be necessary to decide the question whether a person is a bargadar or not. When an issue in this behalf is presented before or comes up for decision in a civil or criminal proceeding, the Court is required to refer it to the officer or authority mentioned in section 18(1).

This Court, therefore, finds that the petitioner have miserably failed to satisfy this Court that both the Courts below have acted illegally and with material irregularities in allowing an application under Section 8 of the said Act.

The revisional application fails.

However, there shall be no order as to costs.