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1964 Supreme(Cal) 33
HIGH COURT OF CALCUTTA
Banerjee, D. Basu
KANSAR ALI - Appellant
Versus
SAUKAT ALI - Respondent
. Of .
Decided On : February 11, 1964
CHANDRA NATH MUKHERJI, SATYA CHARAN PAIN
The remedies of eviction and recovery of share of produce under the West Bengal Land Reforms Act, 1955, are not inconsistent with each other and are not alternative or exclusive remedies. The doctrine of election does not apply in cases where the two remedies are not mutually exclusive.
Headnote:
BARGADAR - LAND REFORMS ACT - SECTIONS 2(2), 16, 17(1)(C), 18(1)(A) - SHARE OF PRODUCE - EVICTION - ELECTION OF REMEDIES - DOCTRINE OF ELECTION - INCONSISTENT REMEDIES - ALTERNATIVE REMEDIES - CUMULATIVE REMEDIES - INTERPRETATION OF STATUTES - NEGATIVE WORDS - IMPLIED REPEAL - COMMON LAW REMEDIES - STATUTORY REMEDIES - ESTOPPEL IN PAIS - ALTERATION IN SITUATION - ASSURANCE IMPLIED IN EARLIER COURSE OF ACTION - CONDITIONS AND LIMITATIONS FOR APPLICATION OF DOCTRINE OF ELECTION.
Fact of the Case:
The petitioner, a Bargadar, was ordered to be evicted from the land he cultivated by the Bhag Chas Officer and the learned Munsif on the ground that he had contravened the provisions of the West Bengal Land Reforms Act, 1955, by failing to deliver the share of the produce to the landlords opposite party. The petitioner filed a Rule under Article 227 of the Constitution, contending that the landlords were not entitled to claim eviction and also claim share of the produce, which the Bargadar had defaulted to deliver, and that having had elected to claim share of the produce, the landlords must be deemed to have waived the claim for eviction.
Finding of the Court:
The Court held that the two remedies, namely, eviction and recovery of share of produce, were not inconsistent with each other and were not alternative or exclusive remedies. The Court further held that the doctrine of election did not apply in the present case as the two remedies were not mutually exclusive.
Issues: Whether the landlords were entitled to claim eviction and also claim share of the produce, which the Bargadar had defaulted to deliver.
Ratio Decidendi: The Court held that the two remedies, namely, eviction and recovery of share of produce, were not inconsistent with each other and were not alternative or exclusive remedies. The Court further held that the doctrine of election did not apply in the present case as the two remedies were not mutually exclusive. The Court observed that the West Bengal Land Reforms Act, 1955, provided two remedies for default in delivering the share of produce, namely, eviction under Section 17(1)(c) and recovery of share of produce under Section 18(1)(a). The Court held that these two remedies were not inconsistent with each other and that the landlords were entitled to pursue both remedies simultaneously. The Court further held that the doctrine of election did not apply in the present case as the two remedies were not mutually exclusive. The Court observed that the doctrine of election applies only when two remedies are inconsistent with each other and that in the present case, the two remedies were not inconsistent with each other.
Final Decision: The Court discharged the Rule.
( 1 ) A single point was urged in support of this Rule, namely, that opposite party, landlords or the Bargadar petitioner were not entitled to claim eviction of the Bargadar petitioner on the ground that he had failed to deliver share of the produce to landlords opposite party and also claim share of the produce, which the Bargadar had defaulted to deliver and that having had elected to claim share of the produce, the landlords must be deemed to have waived the claim for eviction.
( 2 ) THE circumstances under which this Rule was issued are hereinafter recounted in brief. The opposite party landlords filed B. C. Case No. 242k of 1959, before the Bhag Chas Officer, Keshpur, claiming share of Bhag Produce, for the years 1360 and 1365 B. S. , from the petitioner. They also filed B. C. Case No. 66k of 1959, before the same Bhag Chas Officer, claiming eviction of the petitioner from the land cultivated by him, on the threefold ground of (i) default in delivering share of produce (ii) negligence in cultivation and (iii) bonafide requirement for bringing the land under their personal cultivation. The Bhag Chas Officer heard both the cases analogously and awarded share of produce to the landlords opposite party for the years 1363 to 1365 B. S. only, holding that the rest of the claim was barred by limitation. He also passed an order for eviction of the petitioner from the land on the ground that he had contravened the provisions of the West Bengal Land Reforms Act, by his failure to deliver the share of the produce to the landlords opposite party. Against the award made by the Bhag Chas Officer in the two cases, the petitioner Bargader filed two appeals before the learned Munsif at Garbeta. The landlord opposite party also filed an appeal before the same learned Munsif against so much of their claim as was dismissed by the Bhag Chas Officer. The learned Munsif heard the appeals analogously and by his judgment, dated July 18, 1961, dismissed both the appeals preferred by the Bargadar but partly allowed the appeal preferred by the landlords opposite party, holding, inter alia, that the claim for share of produce for the year 1362 B. S. was not barred by limitation.
( 3 ) THE petitioner Bargadar moved this Court, under Article 227 of the Constitution, against the dismissal of his appeals and obtained this Rule.
( 4 ) MR. Guruprasad Ghosh, learned Advocate for the petitioner, strongly relied on an unreported judgment by P. N. Mookerjee, J. dated November 15, 1960, in Krishnadas Garai v. Ban Behari Pal (Civil Rule No. 3043 of 1958), in which his Lordship observed as follows:-"the petitioner's allegation was that the O, P had made himself liable to eviction under Clause (c) by contravening certain orders of the Board regarding delivery of produce. This, however, strictly speaking, is not by itself a ground for eviction under the new Act, Section 17 (1) (c), although this was one of the grounds of eviction under the older law. Under the present Clause (c), it is necessary to prove contravention of any of the provisions of the Act for purposes of eviction. It is true that the order for delivery of the produce is made by the Board only when there has been a contravention of Section 16 (3) but for that contravention the statute appears to provide two remedies, namely, (i) order of the Board for delivery of the produce and (ii) order of eviction under Clause (c) of Section 17 (1) and when the jotedar has chosen one of the remedies he must be held to have made his election and cannot thereafter fall back upon the other remedy. In this context, when the jotedar has already recovered an order as in the present case, for recovery of produce on account of non-delivery of the same by the Bargadar as contemplated under Section 16, he can no longer urge it as a ground of eviction under Section 17 (1) (c) and in the circumstances this will not be treated as contravention of a provision of the Act for the purposes of that clause.
( 5 ) H
