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Petitioner: YAKUB ALI VS Respondent: ARABJAN BIBI
P L D 1954 Dacca 113
P L D 1954 Dacca 113
Before Muhammad Shahabuddin, C. d. and Akbar, J
YAKUB ALI and another‑Plaintiffs‑Appellants
Versus
ARABJAN BIBI and others‑Respondents
Appeal from Appellate Decree No. 1220 of 1944, decided on 3rd June 1952, against the decree of S. K.,Haldar, District Judge of Zilla, Bakarganj, dated the 25th May 1944, in Title Appeal No. 36 of 1944, reversing the decree of Jotindra Mohan Bir, Munsif, 4th Court, Patuakhali, dated the 31st December 1943.
Bengal Agricultural Debtors Act (VII of 1936), S. 20 Jurisdiction of Board to determine whether there is at all a liability‑Exclusive.
Section 20 as it is now seems to imply the power to decide if there is a liability at all. The power to decide if a liability is a debt involves the power to determine whether there is a liability at all unless it can be held that the intention of the Legislature was that the moment the opposite party raises such a question the jurisdiction of the Board should be ousted. But we cannot reasonably infer that the Legislature had such an. intention. No doubt for the Board to assume jurisdiction there must be a liability but when ail applicant says there is, and the opposite party denies it there is a challenge to the Board's jurisdiction and it is an elementary principle that when the jurisdiction of a Court to t*ke cognizance of a matter brought before it is disputed the Court must adjudicate upon the question.
The Board has jurisdiction to decide if there is a liability at all and this jurisdiction is the Board's exclusively.
Whatever powers the Board has under the Act can be exercised by it alone and in view of the conclusion that it has jurisdiction to decide if there is a liability at all it alone can determine that question and not the Civil Court. The Civil Court can interfere only if the allegation is that fraud was practised on the Board or it was not lawfully constituted or it had no territorial or fiscal jurisdiction or such other questions which affect its jurisdiction arise, but regarding decisions in matters within its jurisdiction a suit does not seem to lie. [Case law discussed.]
N. C. Chakraborty for R. R. Guha (Now Hon'ble), for Appellants.
A. M. Sayem, for Respondent No. 7.
JUDGMENT
SHAHABUDDIN, C. J.--‑This second Appeal arises out of a suit filed by the appellants for a declaration of a kol raiyati right in the lands described in Schedules 1 and 2 and forty confirmation of their possession in those lands. The lands belong to the defendants‑respondents in raiyati jote right, and the ease of the plaintiffs wag as follows : Defendants granted plaintiff No. 2, the lands of the first Schedule on a patta, dated the 11th March 1939, after obtaining a salami of Rs. 300 and the 1ands of the second Schedule to plaintiff No. 1 on receiving a swami of Rs. 200, the patta for it being dated the 23rd December 1939. Plaintiffs being joint in property were entitled to hold the lands of both the lamas in kol raiyati interest. The defendants applied to the Debt Settlement Board at Barguna showing the salami amounts which they had received from the plaintiffs as debts. Their case before the Board was that there was a collateral unregistered agreement for reconveyance of the property on the return of the salami and therefore the salami which they had received should be regarded as debts they had to pay. The Debt Settlement Board accepted this case in respect of the first Schedule lands and treating its salami as a debt directed the defendants to pay it to the plaintiffs in instalments. With regard to the other Schedule lands, they did not believe the agreement alleged by the defendants and dismissed the application in that respect. At the time the suit was filed appeal against the decision of the Board was pending before the Appellate Officer. The suit was for a declaration that this decision of the Board was ultra vires and without juris diction on the ground that there was no debt due from the defendants. As the defendants wanted to disturb the plaintiffs' possession a declaration of their title to the suit lands and confirmation of their possession of those lands were also prayed for. They further prayed for a declaration that consideration money for the pattas was not a debt or liability.
The defence was that the Civil Court had no jurisdiction as the question involved had been decided by the Debt Settlement Board under the Bengal Agricultural Debtors Act. The Munsif negatived this contention. He held that the existence of a debt is ‑essential to clothe the Board with jurisdiction in the matter, that it is a recognised rule of law, that the decision of a tribunal of limited jurisdiction is binding on the Court only so long as the limits within which that tribunal is to act have not been over‑stepped, and that wherever those limits are transgressed the Civil Court has jurisdiction to interfere and declare that decision void. For this position, he relied on Lachman Singh v. Natha Singh through Harman Singh and others (A I R 1940 Lah. 401.), District Board of Chittagong and another v. Sasi Bhushan Pal and others (40 C W N 687.), Surendra Nath Roy v. Prosad Chandra Chakraburty and others (41 C W N 356), Sachindra Biswas v. Nagendra Nath Nath (46 C W N 951). He then went into the merits of the case and came to the conclusion that there was no debt created, that the plaintiffs were kol korsha tenants under the defendants, and that the latter could recover the stipulated rents on the basis of the pattas. He observed that the defendants did not care to give any evidence or to challenge any statement made by the plaintiffs on merits and that the defendants' main and only contention was that the Court could not enter into the merits of the case. As his finding was that the Court could go into the question, the learned Munsif accepted the case of the plaintiffs and decreed the suit.
On appeal, the District Judge disagreed with the Munsif. Relying on Masiha Khatun v. Ulatannessa Bibi, widow of Haji Muhammad Yusuf Mia and others (A I R 1941 Cal. 222) and eladu Mandalani v. Sm. Sarojini Chowdhurani and another (47 C W N 888.) he held that the trend of the rulings was that it could not be doubted that the legislature intended to confer a final and exclusive jurisdiction of the Debt Settlement Board. He then referred to three decisions of the Calcutta High Court Shib Dulal Sukul and another v. Kishoreganj Loan Office Co., Ltd. (42 C W N 173.), Nursingdas Tunsookdas v. Chogemull and others (42 C W N 293.), Baijnath Tamakuwalla v. Tormull (42 C W N 481.) and to the decision., in Raja Jagat Kishore Acharjya Choudhury v. Hazrat Ali Beopari and others (A I R 1938 Cal. 447.). With reference to sections 20 and 33 of the Bengal Agricultural Debtors Act and the decisions on Which he relied, he held that the Civil Court had no jurisdiction to entertain the suit in view of the Board's decision with respect to Schedule 1 lands that the amount of salami was a debt. Regarding the Schedule 2 lams, as the Board had held that no debt existed, the learned District judge took the view that the Civil Court could have jurisdiction to entertain the suit, but he did hot interfere as it was submitted on both sides that an appeal against the decision of the Board was pending before the Appellate Officer, and owing to the pendency of that appeal, he was of opinion that section 33 of the Act was a bar to the entertainment of the suit.
The plaintiffs filed this second appeal which came on for hearing before Mr. Justice Ormand. The learned Judge sent up the case for decision by a larger Bench and in his order pointed out the conflict of views on the question involved in this case. After referring to the construction of the Bengal Agricultural Debtors Act in general and The Secretary of State represented by the Collector of South Arcot v. Mask and Co. (44 C W N 709) as regards the jurisdiction of the Civil Court to interfere with matters dealt with by Statutory tribunals, he pointed out that in Bazler Rahman Khandakar v. Amiraddin and others (48. C W N 699.) a Division Bench of the Calcutta High Court had held that the question whether a transaction is a liability has to be decided by the Board and not the Court. He also referred to his own decision which he gave sitting singly‑‑Abinash Chandra Biswas and others v. Mangal Biswas and others (53 C W N I D R 20‑ 2 D L R 60.) ; following 48 C W N 699 (supra) and also to Tasenaddin Sheikh v. Asiraddi Mallick (53 C W N I D R 15 2 D L R 55.) where the former C. J. of this Court sitting singly held that it was settled law that the Civil Court has jurisdiction to go into the question. Reference is made in the order also to Surendra Nath Chakravarty v. Haran Chandra Chakravarty (49 C W. N 592.) where the correctness of the decision in 48 C W N 699 (supra) is doubted. Owing to this conflict of views the learned Judge considered that the matter should be heard by a larger Bench.
The case was accordingly placed before this Bench and after hearing the arguments we heard three other appeals in which question allied with the one under consideration here have to be dealt with. Owing to the general importance of the question concerned in this case we invited the learned Advocates in those three appeals also to address us and we express our appreciation of the assistance we have received from the learned Advocates in these four cases.
The main question for determination in this appeal is "Has the Board jurisdiction to decide if a transaction is a liability and if so whether that jurisdiction is exclusively the Board's or the Civil Court also can exercise it in cases where the Board has already decided the question." The argument for the appellant may be summarized thus : Section 18 relates only to the question whether the debt is still subsisting or not and if it subsists what is its amount. The question whether the liability is a debt comes under section 20 after the amend ment of 1940 and since then the Board alone has jurisdiction to deal with it. But if the question is whether the transaction is a liability at all section 20 does not apply. Prior to the amendment the section referred only to the question whether a person is a debtor or not. As in some cases Civil Courts assumed jurisdiction to decide if the liability amounted to a debt within the meaning of the Act the amendment was made. If at that time the intention was that the Board alone should decide whether there is a liability at all the words added would have been or whether the transaction is a liability amounting to a debt or not' or something to that effect. Since the amendment has not gone to that extent the Civil Court's jurisdiction on the question whether a transaction is a liability at all is not excluded: 48 C W N 699 (supra) no doubt expresses the opposite view but the same learned Judge in a later decision Sm. Monomohini Chowdhurani v. Jabedulla Mia (51 C W N 927.) took up a position consistent with the Civil Court having jurisdiction. 48 C W N 699 (supra) should not be followed as its correctness was doubted in 49 C W N 592 (supra). As for the Court's jurisdiction reference was made to 44 C W N 709 (supra), Pran Krishna Naskor v. Bhagawan Chandra Midday (47 C W N 796.) and Abinash Chandra Biswas v. Nakul Ruhidas (47 C W N 891.), Bibhuti Bhusan Roy v. Bholanath Sinha Roy (49CWN151.), Mohesh Chandra Saha and others v. Abdul Gafur Chowdhury (49CWN319.), and Haji Rahimuddin Sheikh and another v. Nasimaddi Sheikh (53 C W N D R 62.).
The argument for the respondent was to the following effect.
In determining the question whether a liability is a debt or not the Board has to decide if there is liability at all when ever such a point is raised. The Board has jurisdiction to deal with this matter and under section 45 of the Act it can act unfettered by the Evidence Act and C. P. C., while the Civil Court has no such powers. That being the case the Civil Court can have no jurisdiction to deal with the question. Its jurisdiction is confined only to the question whether the Board was lawfully constituted, or there was fraud and such other matters. Reliance was placed mainly on 48 C W N 699 (supra) and on the decisions of Ibrahim, J. given sitting singly in Abdur Rashid and others v. Jbiat Hossain and others (P L R I Dacca 149‑3 D L R 390.), Charu Bhuiya and another v. Hadi Bhuiya and others (3 D L R 34) and the decision of Ormond, J. sitting singly‑Abinash Chandra Biswas and others v. Mangal Biswas and others (supra) already referred to. A Bench of this Court has in S. A. 1690/43 followed 48 C W N 699 (supra) and this decision also was relied upon.
Of the decisions mentioned above, A I R 1940 Lah. 401 (supra), 40 C W N 687 (supra) and 41 C W N 356 (supra) relied on by the Munsif, and 44 C W N 709 (supra) referred to by Ormand, J. may conveniently be considered first as they are relevant to the question of jurisdiction of a Civil Court in matters governed by special Acts under which special tribunals are empowered to deal with those matters.
In the Lahore decision, which is of a Full Bench, the jurisdiction of the Debt Settlement Board under the Punjab Relief of Indebtedness Act came up for consideration with reference to the decision of a board that a usufructuary mortgage was a debt within the meaning of the Act. The question referred to the Full Bench were, (1) whether a usufructuary mortgage was a debt within the meaning of that Act, and (2) whether where a Board had declared that a particular debt shall be deemed to have been discharged the Civil Court was competent to decide that the transaction in question did not create a debt. The Full Bench answered the first question in the negative on a consideration of the provisions of the Act. As regards the second question, the mortgagor in that case relied on the last paragraph of section 7 (2) and section 21 of the said Act. The last paragraph of section 7 (2) laid down that "If any question arises in proceedings under this part of the Act, whether a person is a debtor or not, the decision of a Debt Conciliation Board shall be final." Section 21 debarred Civil Courts from entertaining suits, (a) to question the validity of any proce dure or the legality of any agreement made under this Act, or (b) to recover any debt in respect of which an agreement has been recorded in section 17, or (c) to recover any debt which has been deemed to have been duly discharged under subsection (2) of section 13. The Full Bench with regard to the first provision‑of law relied on by the mortgagor before them held that what that provision provides for is that if the Board decides whether or not the person concerned earns his livelihood in one of the manners mentioned in the subsection, or whether or not he has lost his status for any of the reason given in the "explanation", that decision cannot be questioned in a Civil Court. But section 21 was held inapplicable to suits relating to transactions like a usufructuary mortgage which the Bench held did not create a debt as defined in the Act. This decision based on the Punjab Act cannot be directly applied to the case before us as that Act appears to be differ ent from the Bengal Act which we have to consider in this case.
For instance, section 20 of the Bengal Act gives the Board greater powers than section 7 (2) of the Punjab Act. Under the Bengal Act if any question arises in connection with proceedings before a Board under the Act whether a person is a debtor oar not, or whether a liability is a debt or not, the Board shall decide the matter. Then again the Bengal Act contains provisions to the effect that no Civil Court shall entertain a suit, application or proceeding against a debtor in respect of any debt which is included in an application pending before the Board and that any decree of a Civil Court passed in regard to a debt after the date of the application before the Board if inconsistent with any order passed by the Board shall be treated as a nullity. Further under section 45 of the Bengal Act the Board in dealing with any proceedings before it is not fettered by the law of evidence or C. P. C., except to the extent provided in the Act; and as regards questions such as whether there is a debt existing or whether the liability is a debt or whether the appli cant is a debtor the Act does not make any of the provisions of the Evidence Act applicable. These provisions clearly show that the jurisdiction of the Court is excluded under the Bengal Act. The Punjab Act is not before us but there is no reference in the judgment of the Full Bench of Lahore High Court to provisions similar to section 20 or section 45 of the Bengal Act. On the other hand it appears from the observation on page 406 of A I R 1940 Lah. 401 (supra) that the Bengal Act gives a Board wider powers than does the Punjab Act. Referring to the definition of debt in the U. P. Agricultural Debtors Act which is to the effect that a debt is an advance to an agriculturist of money or in kind and includes any transaction which is in substance a loan, the learned Judges of the Lahore High Court observe that that definition is much wider than the definition of debt in the Punjab Act as it then stood. On the other hand in the Bengal Act the definition of loan is still wider. It is "a loan whether of money or in kind and includes any transaction which is in the opinion of the Board in substance a loan". The last clause of the definition is of significance on the ques tion before us. However in 44 C W N 709 (supra) to which reference in some detail will be made hereafter the Judicial Committee has observed that the Courts dealing with the questions of jurisdiction of Special Tribunals should rest their conclusions on the terms of the particular statute under consideration and that decisions on question of jurisdiction with regard to other special Acts are not of material assistance except in so far as general principles of construction are laid down. Therefore the Lahore decision has to be considered only to see the principle on which the learned Judges of the Lahore High Court answered the second ques tion before them, and that principle is stated by them as follows: "It is well settled that the powers of a Tribunal of special jurisdiction are circumscribed by the statute under which it was constituted. Such a Tribunal must act within its powers and so long as it does so its orders whether right or wrong cannot be challenged except in the manner and to the extent prescribed in the statute and Courts of ordinary jurisdiction cannot question them. But where and in so far as its actions are in excess or, in contravention of the powers they are ultra vices and of no legal effect and obviously cannot have the same immunity. As pointed out by their Lordships of the Privy Council in the leading case (1874) L R 5 P C 417 ; where an order of quasi‑judicial body is objected to before a Court, it is to be seen whether the objection relates to a defect of jurisdiction founded on the character and constitution of the Tribunal; the nature of the subject matter of the enquiry, or the absence of some preliminary proceeding which was necessary to give jurisdiction to it. If any of these things is established the order is coram non judice and of no effect whatsoever." If however 'the objection rests solely on the ground that the Tribunal has erroneously found a fact which it was competent to, try, the objection cannot be entertained. This principle is in our opinion applicable to the Act under consideration, the Bengal Agricultural Debtors Act.
In 40 C W N 687 (supra) a resolution of the District Board recommending the acquisition of a plot of land was questioned in the Civil Court as ultra vires and injunction restraining the carrying out of the resolution was asked for on the ground that the resolution was unreasonable in character and vitiated by want of good faith and due regard for the interests of the owner. Referring to West minister Corporation v. L. dz Lid. L. Rly. Co. (1905 A C 130) it was observed by the learned Judges of the Calcutta High Court that even if a public body was acting within its jurisdiction the Courts might and would interfere if it was shown that the discretion given by the law had not been exercised bona fide. This proposition need not be discussed in the present case as here the decision of the Board has not been dealt with by the Courts below on the ground that it was obtained by fraud or that there was lack of bona fide.
In 41 C W N 356 (supra) the maintainability in a Civil Court of two suits came up for consideration; one of the suits was a suit challenging the validity of the election of a member of a Union Board on the ground that he had not the necessary qualification, and the other was a suit challenging the validity of an appointment by a District Magistrate of a person to be a member under section 6 (3) of the sane Act on the same ground. It was held that the first suit was not maintainable in a Civil Court, whereas the second was, although the decision meant that on the ground of disquali fication in the case of an elected member a civil suit cannot lie, while if the member was nominated it would lie. With regard to the suit in respect of a nominated member the learned judge himself expressed certain doubts. It is, however, not necessary for the purpose of this appeal to enter into the details of this case. Reference to this decision is useful only in this that in dealing with the first suit the following observation was made, "where the right or liability has been created by statute the remedy provided for in the statute is exclusive."
But in 54 C W N 709 (supra), case under the Sea Customs Act, which creates a liability not existing at Common Law, their Lordships of the Privy Council observed as follows: "It is settled law that the exclusion of the juris diction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. Many of the cases referred to in the judgments below are of this nature and are not relevant to the present case in which there are no allegations of that nature." After examining the provisions of the Act, their Lordships came to the conclusion that the jurisdiction of the Civil Courts was excluded by that Act. They then made the following observations: "Their Lordships are of opinion that in this case the jurisdiction of the Civil Courts is excluded by the order of the Collector of Customs on the appeal under section 188, and it is unnecessary to consider whether, prior to taking such appeal under section 188 the respondents would have been entitled to resort to the Civil Courts, or whether they would have been confined to the right of appeal under section 188."
"The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as the general principle of construction are laid down. The main principles to be observed n the present case are to be found in the well known judgment of Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford ((1859) 6 C B (N S) 336 (357).) which was approved of in the House of Lords in Neville v. London Express Newspaper Ltd. (L R 1919 A C 368). The question is whether the present case falls under the third class stated by Willes J. viz., where the statute creates a liability not existing at Common Law, and gives also a particular remedy for enforcing it with respect to that class it has always been held that the party must adopt the form of remedy given by the statute."
As already indicated while discussing the Full Bench decision of Lahore High Court there are provision in the Bengal Agricultural Debtors Act specifically excluding the jurisdiction of the Civil Court. This is not disputed by the appellant. The question therefore is to what extent the Court's inherent jurisdiction can be exercised in respect of cases coming under this Act. In this connection it was contended that their Lordships of the Judicial Committee held in the above decision that in matters coming under a special Act the Civil Court, even if its jurisdiction is excluded by that Act, has nevertheless' power to see if the provisions of the special Act had in any way been contravened. A similar contention was raised in a P L R 1 Dacca 415 where the question before Akbar and Guha JJ. of this Court was whether the Civil Court had jurisdiction to entertain a suit for a declaration in respect of an award of the Debt. Settlement Board in a case where the…
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