Girish Chandra Jana vs Kalipada Barik

Guha Ray, J.—This Rule obtained by the owner of certain plots of land is directed against an order by which a Bhdgchds Board found, the Petitioner''s case that he had advanced a certain quantity of paddy to the bargdddr to be untrue and apportioned the paddy according to law.

Mr. Mullick, on behalf of the Petitioner, argues that the owner produced before the Board a set of accounts, but then he is constrained to admit that the owner does not appear to have taken any steps to prove the accounts. The more production of the accounts is no proof thereof and in the absence of any proof of the accounts, the Board was not. entitled to consider the same. Besides, the Petitioner does not appear to have taken any receipt from the bargdddr when he advanced paddy to him. In the absence of any such receipt the Board was bound to come to the conclusion that this story of the owner that he advanced certain quantity of paddy to the bargdddr was untrue. Thus, on the merits the Board appears to have taken a correct view of the matter and the Appellate Officer also was justified in confirming that view.

Mr. Mullick, however, on behalf of the Petitioner, raises a point of law which is of a somewhat fundamental nature. The order of the Board appears to have been signed by three members thereof and Mr. Mullick''s contention is that this is done under Rule 8, Sub-rule (1) under which the quorum necessary for the meeting of a Board for the transaction of a business shall be three, provided that the presence of the chairman shall be necessary for constituting the quorum of the Board. The Rule itself is, according to Mr. Mullick, ultra vires the Act, for in the first place Section 6 of the West Bengal bargdddrs Act lays down clearly that every Board shall consist of a chairman and four other members and that u/s 7 every dispute shall be decided by a Board. There is, according to Mr. Mallick, nothing in the Act to suggest that the State Government was empowered to frame any rule regarding the formation of a quorum so as to whittle down the provisions of the Act. In order to see whether this contention is correct or not, certain provisions of the Act have to be examined carefully. Section 6, Sub-section (2) provides that every Board shall consist of a Chairman who shall be a person in the service of the Government and four other members, two of whom shall be the representatives of the bargdddrs cultivating lands situated in the local area for which the Board has been established and the other two shall be the representatives of the owners of lands cultivated by such bargdddrs. Clearly, therefore, in the formation of the Board apart from an impartial chairman there are two representatives of the bargdddrs and two representatives of the owners, and these five together constitute a Board under the West Bengal Bargdddr Act, 1950. Of course, Sub-section (4) of Section 6 provides that the State Government may, at any time, 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 and then there is a proviso to this Sub-section under which 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. From these two provisions Mr. Panda, on behalf of the opposite party, argues that the Board, when the appointment of one or more members of the Board has been cancelled by the State Government, could function with a number of members less than five and that it was possible for one man to function as a Board under the proviso to Sub-section (4). Mr. Panda, however, ignores the fact that where under Sub-section (4) the State Government cancels the appointment of one or more members, it would be bound under the requirements of Sub-section (2) which provides, as already stated, that the Board shall consist of five members to fill up the vacancy or vacancies caused by the cancellation of appointment of one or more members, so that although Sub-section (4) itself does not provide for the filling up of such vacancies, the provision for the filling up of such vacancies is inherent in the provision of Sub-section (2) under which the Board is to consist of five members. In the event of the Board being dissolved, the powers of the Board are exercisable by one man in the service of the Government who may be authorised by the State Government. That does not mean that so long as the Board is in existence, it can consist of less than five members. Section 7, Sub-section (1) also provides that every dispute between a bargadar and an owner as regards certain matters specified in the section shall be decided by a Board established for the local area within which such land is situated. So far there is no indication in the Act that the Board can function as a Board with a number of members less than five. The only provision of the Act which is relevant for this purpose is Section 19 which authorises the State Government to make rules. Sub-section (1) of Section 19 entitles the State Government to make rules to carry out the purposes of this Act and then Sub-section (2) provides that in particular, and without prejudice to the generality of the foregoing provisions, such rules may provide for all or any of the following matters enumerated in six clauses out of which we are concerned with only two, namely, (d) and (f):

(d) the procedure to be followed by a Board or an Appellate Officer; (f) any other matter required to be prescribed under this Act.

Rule 8 to which a reference has been already made is one of the rules framed by the State Government under the rule making powers conferred by Section 19. Rule 8, Sub-rule (1) runs as follows:

The quorum necessary for a meeting of a Board for the transaction of business shall be three:

Provided that the presence of the Chairman shall be necessary for constituting the quorum of the Board.

The effect of this rule is that although the Act itself provides that the Board shall consist of five members and that disputes under the Act shall be decided by the Board, it would be entitled under the rule to transact business and to decide disputes with only three members so long as the chairman in one of them. To this extent, the rule is a clear modification of the provisions of the Act, because, as already stated, the Act provides that a Board consisting of five members shall decide disputes whereas under the rules a Board consisting of only three of its members, one of whom must be the chairman, could decide a dispute. There is nothing in the Act itself to suggest that the State Government was entitled to frame a rule regarding the formation of a quorum for the transaction of business. It is no part of the procedure to be followed by the Board.

Mr. Panda argues on the strength of the preamble to the Act and also on the strength of Sub-section (1) of Section 19 that the State Government was entitled to frame a rule as to what will constitute the quorum. The preamble runs as follows:

Whereas it is expedient and necessary to provide for the regulation of certain rights inter so of bargadars and owners of land and for the establishment of bhagchas Conciliation Boards for the settlement of disputes relating to certain matters between bargadars and owners of land.

This merely lays down what the object of the legislature is. This object is to regulate the rights inter so of bargadars and owners of land and to establish Bhagchas Conciliation Boards for the settlement of disputes relating to certain matters between bargadars and owners of land. This thows no light whatever as to whether the Act did or did not intend that although the Board was to consist of five members, it could function with only three of them so long as the chairman was one of those three. Then, Section 19(1), which, as I have already said, entitles the State Government to make rules for carrying out the purposes of the Act, does not seem to me to entitle the Government to frame a rule which whittles down any provision of the Act itself in the guise of doing something to carry out the purposes of the Act. The purposes of the Act are to see that disputes are decided by the Board, the Board consisting of five members and when Rule 8 provided that a quorum of three of which the chairman must be one could transact business, it obviously means that this quorum of three could also decide disputes as in this case it did decide disputes. That, to my mind, whittles down the value of the provisions of Section 7(1) read with Section 6(2) under which every dispute shall be decided by a Board consisting of five members. There is yet another consideration which cannot altogether be lost sight of. In the constitution of the Board, but for the impartial chairman, there is an even representation of the two parties to the dispute and if in spite of this it was the intention of the legislature to lay down that only three members of the Board, so long as the impartial chairman was one of them, would be entitled to transact the business of the Board including the decision of disputes, one could legitimately expect it to say so in clear terms. There is not even hint of it in any of the provisions of the Act. In these circumstances, this rule, that is, Rule 8(1), must be held to be a rule which is ultra vires the Act. The order in this case was admittedly, as already stated, signed by three members of the Board and if Rule 8(1) of the Rules framed under the Act is ultra vires, as I think it is, this order, although I have said before it cannot be legitimately assailed on the merits, is bad on the ground that it was passed by only three members of the Board. It must accordingly be set aside.

Mr. Panda, on behalf of the opposite party, raised before me the question what would be the effect of this order setting aside the order of the Bhdgchds Board. To my mind, the only effect will be that the matter will be once more at large, that is, the matter will be taken to be pending although the Bhdgchds Board which decided it is no longer in existence. The order of the Board will have to be treated as an order which did not exist at any time because it is an order which three members of the Board could not legally have made. If that is so, the application will be treated as a proceeding pending on the last date when the Board was in existence. In that view, the proceeding must be treated as one pending before the Board at the time when the Board ceased to exist with the expiry of the West Bengal Bargdddrs Act, 1950 and with the coming into force of the West Bengal Land Reforms Act, 1955. The proceedings, therefore, would now stand transferred to the officer or authority having jurisdiction over the area in which the land to which the proceedings relate is situated as set up u/s 21(2) of the West Bengal Land Reforms Act, 1955 and if these proceedings stand transferred to him, he will have the right to hear the matter afresh on evidence produced before him by the parties.

The Rule is accordingly made absolute and the order of the Bhdgchds Board in question is set aside.

I make no order as to costs in view of the circumstances of he case.