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2011 Supreme(Cal) 645
IN THE HIGH COURT OF CALCUTTA
Prasenjit Mandal, J.
Hiranmoy Dey & anr.
Versus
Dilip Kumar Koner & anr.
C.O. No. 2884 of 2010
Decided On: May 10, 2011
For the petitioners: Ms. Sulekha Mitra.
For the opposite parties: Mr. Arup Banerjee.
The jurisdiction of a civil court is barred under Section 21(3) of the West Bengal Land Reforms Act, 1955, from determining the status of a person as a bargadar, and such determination must be made by the authority mentioned in Section 18(1) of the Act.
Headnote:
WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 21(3) - Mandatory reference to authority - Bargadar status determination - Civil court's jurisdiction barred.
Fact of the Case:
In a suit for declaration of title and eviction, the defendants claimed barga rights over the suit lands. The trial court rejected the defendants' application under Section 21(3) of the West Bengal Land Reforms Act, 1955, holding that the defendants failed to establish prima facie that they were bargadars.
Finding of the Court:
The High Court held that the trial court erred in deciding the issue of whether the defendants were bargadars without referring the matter to the authority mentioned in Section 18(1) of the Act. The court noted that Section 21(3) of the Act mandates such reference and that the word 'shall' used in the provision indicates that the reference is mandatory.
Issues: Whether the trial court erred in deciding the issue of whether the defendants were bargadars without referring the matter to the authority mentioned in Section 18(1) of the West Bengal Land Reforms Act, 1955.
Ratio Decidendi: The High Court relied on the provisions of Section 21(3) of the West Bengal Land Reforms Act, 1955, and the decisions in Harendra Nath Sarkar & ors. v. Dibakar Mondal & ors. and Haradhan Das v. Rakshakar Mukhopadhyay & anr. to hold that the reference to the authority under Section 18(1) of the Act is mandatory when a question arises as to whether a person is or is not a bargadar.
Final Decision: The High Court allowed the revisional application, set aside the impugned order, and directed the trial court to refer the matter to the concerned officer or authority for a decision on whether the defendants were bargadars with respect to the land in suit.
Prasenjit Mandal, J.: This application is directed against the Order No.29 dated July 27, 2010 passed by the learned Civil Judge (Junior Division), Second Court, Burdwan in Title Suit No.185 of 2007 thereby rejecting an application under Section 21(3) of the West Bengal Land Reforms Act, 1955.
2. The plaintiff/opposite party instituted a suit being Title Suit No.185 of 2007 against the petitioners and the opposite party no.2 for a decree of declaration of his right, title and interest in the suit property, eviction, damages, permanent injunction, etc., before the learned Civil Judge (Junior Division), Second Court, Burdwan. The petitioners are contesting the said suit by filing a written statement denying the material allegations made in the application. It is the specific contention of the petitioners that they are the Bargadars in respect of the suit property as described in the schedule of the plaint. At the stage of peremptorty hearing, the petitioners filed an application under Section 21(3) of the W.B.L.R. Act, 1955. The learned Trial Judge has rejected that application by the impugned order. Being aggrieved, this application has been preferred.
3. Now, the point for consideration is whether the impugned order should be sustained.
4. Upon hearing the learned counsel for the parties and on perusal of the materials on record I find that in paragraph no.6 of the written statement filed by the petitioners as appearing as Annexure – ‘A’ to the application, the petitioners have claimed that they have been cultivating the plot no.217 measuring 1 acre 10 decimals of land for a long period and for that reason, the said suit is liable to be dismissed under the provisions of Section 21(3) of the said 1955 Act. The plaintiff has contended that the petitioners were licensees under the father and grandfather of the plaintiff and the license ceased after their death. The petitioners have never been recorded as bargadars under the plaintiff or his predecessor-in-interest at any time and he did not deliver bhag produce to the plaintiff at any point of time. So, the application is liable to be rejected. Thus, I find that one of the main issues involved in the suit is whether the petitioners are bargadars in respect of the suit property. This has to be decided in accordance with law. Now, in order to elucidate matter in dispute, it will be wise and proper to quote the provision of Section 21 of the 1955 Act and the said provision is quoted below:-
Bar of Jurisdiction. – (1) No order or other proceedings whatsoever under this Chapter shall be questioned in any Civil Court and no Civil Court 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 subsection (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 deci
