Surendra Nath Prodhan vs Bepin Behari Majhi

Debabrata Mookerjee, J.—This is an application under Article 227 of the Constitution directed against an order of the Appellate Officer, Tamluk, Midnapore, dated April 27, 1954, purporting to set aside, on appeal, a certain order made by Sutahata Bhagchas Conciliation Board No. 1 on February 25, 1954.

The facts lie in a short compass. The Petitioner applied on November 11, 1953, to the Conciliation Board mentioned above for an order terminating the cultivation of opposite party No. 1 as Bargadar in respect of a plot of land measuring 61 acre which the Petitioner had on July 27, 1953, acquired for a sum of Rs. 1,400. The Petitioner''s case before the Board was that he bona fide required the plot in question in order to be able to cultivate the same himself and raise crops for the benefit of his family. Notices were served by the Board in due course and the matter was fixed for hearing on December 24, 1953, when the opposite party No. 1 defaulted to appear in answer to the notice with the result that the Board proceeded to hear and determine the matter in his absence and eventually made an order terminating the cultivation of opposite party No. 1 as Bargadar in respect of the land. A direction was further given by the Board that the Petitioner would be entitled to possession of the land as from Chaitra 1, 1360 B.S.

On February 25, 1954, the opposite party No. 1 applied to the Board for a review of its order made on December 24, 1953. That application was heard and disposed of on the same day and the Board rejected the application for review.

It appears that the opposite party No. 1 thereafter applied on February 25, for a copy of the Board''s order rejecting his application for review. The copy was made ready for delivery on March 16, 1954. On March 23, 1954, the opposite party preferred an appeal against the order of the Board before the Appellate Officer, Tamluk. The appeal was disposed of on April 27, 1954, whereby the order of the Board made on December 24, 1953, was set aside and the opposite party No. 1 was directed to continue the cultivation of the plot in question.

It may be mentioned that the order of the Board, dated December 24, 1953, was made on the footing that the opposite party had neglected to cultivate the plot properly and reliance was placed upon the admission of a son of opposite party No. 1 who was present at the hearing although the opposite party No. 1 himself had defaulted to appear. The Board further found in effect that the Petitioner''s application for restoration to cultivation was a bona fide one and directed the termination of cultivation of the opposite party No. 1, with effect from Chaitra 1, 1360 B.S.

It is thus quite clear that the Appellate Officer, Tamluk, by his order, dated April 27, 1954, did not confine himself to questions which properly arose out of the review application filed by the opposite party before the Board or its rejection, but dealt with and disposed of the matter on the merits on the footing that the order of the Board originally made on December 24, 1953, was itself under appeal.

Thereafter, the Petitioner applied to this Court under Article 227, of the Constitution and obtained the present Rule which is directed against the order of the Appellate Officer made on April 27, 1954.

Mr. Mullick appearing in support of this application has urged mainly two grounds. His first objection is that instead of an appeal being taken against the decision of the Board the opposite party misconceived his remedy in applying for a review of the Board''s decision; and the contention further is that even if the application of the opposite party for review is to be considered as having been apposite and in order, he must be limited to the question which properly fell to be considered in an application for review and that he could not in any event avail himself of a further remedy by way of an appeal to the Appellate Officer from the Order rejecting the application for review. In the second place, Mr. Mullick has contended that even if the so-called appeal of the opposite party No. 1 before the Appellate Officer be held to be in order, the Appellate Officer has acted in contravention of the rules framed and promulgated u/s 19 of the West Bengal Bargadars Act, 1950, the rule in question being the rule requiring an Appellate Officer to dispose of an appeal within 15 days of the filing of the appeal.

Mr. Chatterjee in opposing this rule has argued that the provisions of the West Bengal Bargadars Act, 1950, do not limit a party aggrieved by an award or order to an appeal straightaway. The argument is that an aggrieved party may seek his remedy in the first instance before the Board itself by way of a review. In the event of his failure to obtain redress on review, it is quite open to him thereafter to take an appeal to the Appellate Officer. Secondly, the period prescribed in the Rules requiring an Appellate Officer to dispose of an appeal within the period of 15 days is not a mandatory provision of the law and noncompliance with it cannot vitiate the order passed on appeal.

In order to examine these rival contentions it is necessary to bring the relevant provisions of the West Bengal Bargadars Act under scrutiny. This Act was passed to provide for the regulation of certain rights inter se of bargadars and owners of land, for the establishment of Conciliation Boards and for the settlement of disputes relating to certain specific matters between bargadars and owners of land. By Section 6 the Act provides for the establishment of Conciliation Board which appears to have been given deliberately a representative character capable of acting as guardians of the interest of both bargadars and owners. Section 7 enumerates the different matters which under the terms of the statute are directed to be decided by the Board. Those matters are the exclusive jurisdiction of the Board thus established. A reference to these different subjects of dispute referred to in Section 7 makes it clear that the legislature had the urgency of or immediacy of the situation in mind when providing for settlement of disputes as between owners and bargadars. Sub-section (3) of Section 7 enacts how a decision of the Board shall be given. Where the dispute relates to the division of the produce which is one of the matters enumerated in Section 7(1), the decision of the Board is to be expressed in the form of an award and in all other cases the decision is to take the form of an order. Then follows Section 11 of the Act which provides that an appeal shall lie within the prescribed period to an Appellate Officer to be appointed by the State Government against any award or order of a Board made under the Act except where such order or award was made with the consent of the bargadar and the owner. Thus the section provides for an appeal against any award or order of a Board made under the Act. By Section 19(c) the legislature left it to the rule-making authority, in this instance the State Government, to prescribe the period within which an appeal shall be preferred to the Appellate Officer. The Rules made u/s 19, therefore, prescribe a period of limitation within which an appeal is to be taken to the Appellate Officer and Rule 10 provides that the period of filing an appeal u/s 11 shall be 10 days from the date of the award or order of the Board exclusive of any period taken in obtaining authenticated copy of the order or the award as the case may be.

It is thus clear that the provisions detailed above contemplate the procedure for making an award or order and give the aggrieved party a statutory right of appeal within 10 days from the date of the award or order in question. By the amendment introduced by Bengal Act I of 1953 the legislature gave a new right to a person aggrieved by an award or an order made by a Board. That right is the right of review given by Section 10A of the Act which is in these terms:

A Board or an Appellate Officer may on application by any person aggrieved, made within one month of the date of any award or order, review such award or order:

Provided that no application for review shall lie from any award or order from which an appeal has been preferred.

In this instance the legislature did not leave it to the rulemaking authority, that is to say, the State Government, to prescribe the period of limitation within which an application for review was to be filed before the Board. The new section lays down that an application for review by a person aggrieved has to be made before the Board concerned within a period of one month of the date of the order or the award of which review is sought to be obtained.

The question then arises whether the terms of Section 11 by which the right of appeal is given to an aggrieved person is to receive an extended meaning. In this view an appeal can be taken not only from an award made or order passed originally by the Board but also from an order rejecting or allowing a review of the order or award originally made. Before examining this contention it would be convenient to dispose of the other contention raised by Mr. Mullick that the order of the Appellate Officer in the present case is bad by reason of the fact that the "appeal" was not disposed of within the statutory period of 15 days.

Section 12 of the Act provides that the procedure to be followed by the Board or the Appellate Officer will be the procedure prescribed under the rule-making power reserved to the State Government by Section 19 of the Act. The execution of an order or award made by the Board is similarly provided for in Sub-section (2) of Section 12 and the Collector is authorised to execute orders and awards in a manner to be prescribed by rates in that behalf by the State Government. As I have already indicated, by virtue of the authority given to the State Government u/s 19 of the Act, rules have been prescribed for the conduct of business before the Board as also before the Appellate Officer In the rules thus prescribed, reference has been made to certain rules detailed in schedule 1 of the CPC to indicate the procedure of originating action before the Board or of filing appeals before the Appellate Officer. As regards the form of filing appeals a definite procedure is indicated by incorporating in the rule reference to corresponding provisions in the Code of Civil Procedure. Then follows the rule relating to the manner of disposing of appeals and the relevant provision is set out in Rule 12 which is as follows:

12(1). On the filing of an appeal the Appellate Officer shall call for the records of the case from the Board and after giving the Appellant and the opposite party an opportunity of being heard shall dispose of the appeal summarily.

(2) Every appeal shall be disposed of by the Appellate Officer within fifteen days from the date of filing of the appeal.

Sub-section (3) is not necessary for the present purpose and is therefore left out of consideration. It is thus clear that the rule governing disposal of after giving opportunity to the opposite party to be heard and the Rule advises that the appeal should be disposed of summarily. This to my mind is no language of precision; the rule merely directs that an appeal has to be disposed of not in an elaborate manner but in a summary way. That seems to be the only content of Sub-section (1) of Rule 12. Sub-section (2) provides that every such appeal shall be disposed of within 15 days from the date of the filing of the appeal. Question arises as to whether this latter provision is mandatory or is merely a recommendation the spirit of which has to be observed by Appellate Officers in disposing of appeals pending before them. If it is to be held that it is a command or inflexible rule of law that an appeal must be disposed of within 15 days, then one would normally expect that there should be some provision in the event of failure to dispose of an appeal within the time allowed, governing a breach or infraction of the rule requiring the disposal of appeal within the time allowed. But the consequences of such breach are not even contemplated. It is impossible to hold in these circumstances that this rule requiring disposal of an appeal within the prescribed period is mandatory in character. Although the language employed in Sub-section (2) is indicative of a command, it is somewhat surprising that there should be no provision whatever as respects the consequences of failure to comply with this provision. It is impossible to say whether the failure to dispose of an appeal within 15 days will result in the appeal lapsing which would mean the loss of a valuable right to the person who took the appeal for no fault of his own. In any event, it would not be in consonance with the accepted cannons of construction to regard Sub-section (2) as being mandatory. I hold, therefore, that the failure on the part of the Appellate Officer to dispose of the appeal within a space of 15 days cannot possibly render that decision a nullity. The Rule must, therefore, be taken to be merely directory and not mandatory in character. This disposes of Mr. Mullick''s second objection.

A more fundamental question is raised by Mr. Mullick''s first objection, viz., that the order of the Appellate Officer complained of is not an order which could have been passed in law. Section 11 of the Act has, in clear terms, provided for an appeal against an award or an order of a Board made under the Act. Section 10A provides for review of a decision rendered by a Board or an Appellate Officer. The application for review has to be filed within one month of the date of the order, or award sought to be reviewed. There is one exception provided and that is in the case where an appeal has already been taken against an award or an order to the appellate Officer no application for review will lie.

It is thus clear that the statute intended to give two kinds of rights to persons aggrieved by an award made or an order passed by the Board. Ordinarily the right of appeal is and has to be an unqualified right whereas the right of review is a restricted one and is limited only to such cases where the Board''s award or decision is not already under attack before the Appellate Officer. The scheme of the Act suggests that the legislature never intended the two kinds of rights, the right of appeal and the right by way of review, to be used interchangeably. They are distinct rights to be availed of, not indiscriminately, but with due consideration of the appropriateness of the remedy sought for. To my mind, the right of appeal is a right which is much wider than a mere right of review. When an order or award is appealed from that means and implies that the whole issue between the parties is in the melting pot once again. Whereas when a review is sought the party aggrieved has to limit himself to restricted grounds which are too well-known to require reiteration. The discovery of a new and important matter or evidence which in spite of due diligence could not be produced when the decision sought to be reviewed was rendered is a good ground for review. Mistake apparent on the face of the record is another such ground. As the Privy Council pointed out in the case of Chhajju Ram v. Neki (1922) 26 C.W.N. 697 that Rule 1 of Order XLVII is to be read as in itself definition of the limits within which review is permitted.

Question then arises as to whether it would be right to import into a consideration of the Bargadars Act, concepts of review and appeal which are familiar in ordinary civil jurisprudence. It may be argued that the Bargadars Act is intended to be a complex Code in itself and the Act has to be interpreted by reference to its own provisions contained in the body of the Act itself and in the statutory rules. I have not the slightest doubt that so far as the Act goes and contains provisions express in themselves, the Act must prevail; but where the Act is silent and borrows well-recognised notions of the Civil Code and adopts language to designate familiar forms of relief without any restrictive qualification that language will have to be given its ordinary and accepted meaning. In other words, when the words "review" and "appeal" are used in the Bargadars Act they must be taken as having been used in the sense in which they are ordinarily understood in the Civil Code of the country. They are not to be taken in an esoteric or popular sense which would destroy the very foundation of those well-defined concepts which have stood the test of time. As far as I can see, there has been reference in the Rules under the Bargadars Act which are a part of the statute, to rules of procedure contained in the CPC in so far as they are applicable to the exigency of a temporary legislation. Concepts of review and of appeal with all their familiar implication have, therefore, usually in my view, to be understood in their ordinary, usually accepted since when they are incorporated in the Bargadars Act.

In the view, therefore, that I take, it is clear that when the Legislature gives a party aggrieved by an award or an order the right to ask for review, what is intended to be given is, that the award or the order as the case may be, can be brought before the Board or the Appellate Officer concerned only upon grounds which are recognised grounds of review and the party who makes such application must necessarily be limited to those grounds. It must, therefore, be held that the cases in which in the Bargadar''s Act, review is permitted the grounds are limited to those of new material overlooked by ''excusable misfortune'', mistake or error apparent on the face of the record or any one other sufficient reason-the sufficiency of the reason being of a kind analogous to the two already specified.

Consequently upon an application for review the Court cannot proceed to deal with the case on its merits as if it were an appeal.

In the present case the opposite party felt aggrieved by the award which was made by the Board. He had, according to Mr. Chatterjee, two remedies open to him and it was a matter of his choice either to apply for review before the Board or to take an appeal. He chose the former and when the application for review was rejected, the right of appeal, according to Mr. Chatterjee, still remained, and when the appeal was taken to the Appellate Officer that Officer was well within his rights to entertain it and to dispose it of on the merits. It will be recalled that the Appellate Officer did not confine himself to matters appropriate to questions pertinent in a review. He dealt with it and disposed it of on the footing of an appeal as if the whole matter was at large. I am afraid this the Appellate Officer was not entitled to do.

Mr. Chatterjee''s contention is that Section 11 is wide enough to permit an appeal being taken not only against the award or an order originally made but also against the order of rejection of an application for review of the original award or order as the case may be. Reliance is placed upon the wide words used in Section 11. I am afraid this argument involves the fallacy that the remedies available to a person aggrieved by an order or award can indiscriminately be availed of. In the second place, it overlooks the objection to which it is open, that it gives to the aggrieved party an extended right of appeal. It has already been seen that a specified time limit is prescribed for the purpose of taking an appeal to the Appellate Officer. Assuming for a moment that it is open to the party aggrieved by an order or award to seek either remedy, of appeal or of review, if the party seeks review in the first instance for which limitation of 30 days is prescribed a period different from the period prescribed for an appeal-and thereafter on being unsuccessful he takes an appeal from the order rejecting the application for review, taking the order of rejection as a substantive award or substantive order made by the Board, the party gives himself a right which the legislature has not given him. Nothing would have been easier for the legislature than to say that a person has a right of appeal direct from an order or award of the Board and a further right of appeal or in any event an alternative right of appeal from the order of rejecting the application for review. This is not to my mind the scheme of the Act. As far as I can see, this introduces a complicated procedure of a rather protracted litigation involving delay in the settlement of disputes and thereby defeating the very purpose of a Remedial Act. The entire scheme of the Act seems to favour speedy settlement of disputes; but Mr. Chatterjee''s argument overlooks the main purpose, apart from what I consider to be the fundamentally unsound character of the contention for which no warrant can be found in the plain words of the statute itself.

I, therefore, hold that the opposite party could not in law take an appeal from the order rejecting the application for review made by the Board. No appeal lies from such an order of rejection. I do not agree that it is open to a party aggrieved to enlarge the time of filing an appeal by adopting the device of an intermediate application for review.

The result, therefore, is that the order of the Appellate Officer must be set aside as having been made without jurisdiction.

I am not unmindful of the fact that this is an application under Article 227 of the Constitution. The order I feel called upon to set aside is not an order made by a Court. It is an order which a tribunal has made in pursuance of the provisions of an Act of which the central idea seems to be speedy disposal of disputes between bargadars and owners. But at the same time it seems to me that in the purported exercise of his jurisdiction the Appellate Officer has made an order which is not merely erroneous but is clearly without jurisdiction. Under Article 227 of the Constitution this Court has been held to have powers of superintendence which powers it should exercise in appropriate cases. I consider this to be an appropriate ease in which such powers should be exercised. As was pointed out by Harries, C.J., in the case of Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, , that the power of superintendence conferred by Article 227 of the Constitution has to be exercised sparingly and only in appropriate cases in order to keep tribunals within the bounds of their authority and not for the purpose of correcting errors merely. This decision was approvingly referred to by the Supreme Court in the case of Waryam, Singh v. Amarnath, (1954) S.C.A. 334. Thus it has been held that in appropriate cases this Court will exercise its powers under Article 227 and I consider the present case a fit one where these powers should be exercised. The Appellate Officer whose order is being challenged before me did not commit a mere error of procedure but he clearly went beyond his jurisdiction and acted beyond the bounds of his authority by entertaining the appeal and making the order he did.

The result, therefore, is that this petition succeeds and the order of the Appellate Officer is set aside. The Rule is, accordingly, made absolute. There will be no order for costs.