Haradhan Das vs Rakshakar Mukhopadhyay and Another

Biswanath Somadder, J.—Affidavit of service filed in Court be kept on record.

Heard the learned advocates appearing on behalf of the parties.

This is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 53 dated 15th, March, 2007 passed by the learned Civil Judge (Junior Division), Dubrajpur at Birbhum in Title Suit No. 62 of 2004.

The petitioner herein is the defendant in the suit pending in the learned Court below.

By the order impugned, the learned Court below rejected the defendant''s application u/s 21 (3) of the West Bengal Land Reforms Act, 1955, for referring the issue as to whether the defendant No.1 (Haradhan Das) was the bargadar under the plaintiffs/opposite parties or not, to the statutory officer as prescribed u/s 18 of the West Bengal Land Reforms Act, 1955.

Initially, the matter was heard on 21st August, 2008. On that day this Court directed the learned advocate of the petitioner to pay cost of 500 G.Ms., which has since been complied with.

Let the letter dated 25th August, 2008 written by Sabyasachi Mondal, Advocate to Thirtha Pati Acharyaya, Advocate, to this effect be kept on record.

In so far as merit of the instant application is concerned, after hearing the learned advocates for the parties and upon perusing the instant application and the order impugned, I am of the opinion that in the facts and circumstances of the instant case, the learned Court below ought to have taken note of the express bar in the statue, with regard to jurisdiction of the Civil Court in determining whether a person is or is not a bargadar, which is evident from section 21 of the West Bengal Land Reforms Act, 1955. The said section, in its entirety, is quoted hereinbelow:

"Section 21. Bar of Jurisdiction. - (1) No order or other proceedings whatsoever under this Chapter 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 sub-section (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 u/s 19."

On a bare reading of the aforementioned provision of law, I am of the view that the expression, ''shall'', as appearing in sub-section 3 of section 21 of the West Bengal Land Reforms 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.

In the proper course, the learned Court below ought to have taken note of the dispute and made a reference under sub-section 3 of section 21 of the West Bengal Land Reforms Act, 1955, to the competent officer or authority u/s 18 of the West Bengal Land Reforms Act, 1955, who has jurisdiction to adjudicate upon such disputes.

In that view of the matter, the impugned order is liable to be set aside and is hereby set aside. The learned Court below is directed to make immediate order of reference under the provision of sub-section 3 of section 21 of the West Bengal Land Reforms Act, 1955. The competent officer or authority u/s 18 of the West Bengal Land Reforms Act, 1955, shall, on a reference made before him, proceed and arrive at a decision in terms of sub-section 4 of section 21 of the West Bengal Land Reforms Act, 1955, as expeditiously as possible, preferably within a period of four months but not later than six months from date of receipt of the order of the learned Court below.

I, however, make it clear that the concerned authority shall decide the issue on its own merit, without being influenced in any manner by any observation made herein or by the learned Court below. The instant application stands disposed of in terms of directions given hereinabove.

Urgent xerox certified copy of this order, if applied for, be given to the parties.