P L D 1954 Dacca 113 (PLP)

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 amount of debt was in question. The learned judges with reference to section 18 of the Bengal Agricultural Debtors Act held that the 4natter was entirely within the jurisdiction of the Board, and that even if the award was wrong the remedy prescribed under that Act alone was available and not the remedy by way of a civil suit. As regards the contention based on 44 C W N 709 (supra) Guha, j. who delivered the judgment of the Bench held that that decision of the Judicial Committee did not support that contention. We agree with this view. The words where provisions of the Act have not been complied with, occurring provisions the first of the passages quoted above from that decision, taken out of its context may be said to mean that a Civil Court can scrutinize the decision of the Tribunal to see if it is errone ous or correct; but the two passages quoted above have to be read together and those observations so read indicate that that was not what was meant by their Lordships, for they quote with approval the observations of Willes, J. that where a statute creates a liability not existing at common law and gives also a particular remedy for enforcing it, the party must adopt the form of remedy given by the statute. It is true that the Act which their Lordships were considering in that case was one creating a liability not existent at Common Law while the Act under consideration here is a remedial Act, but that does not seem to us to make a difference. In the passage quoted above from the Lahore decision is a quotation from a decision of the Privy Council in a colonial case according to which Civil Court's jurisdiction over a matter decided by a Quasi Judicial body, is, not on merits but only on the question of jurisdiction. In this connection a reference to Rajah Gobind Lal Roy v. Ramjanam Misser and others (20 I A165.) and Balkishen Das and others v. Simpson (25 I A151) may usefully be made. Both these cases were under the Bengal Revenue Sale Law. In 20 I A 165 (supra) the validity of a Revenue Sale held under Act XI of 1859 was questioned on the ground that certain provision of the Act had been contravened. Under the Act the remedy available to a person aggrieved by the sale is to appear to the Commissioner and failing there to file a suit with prescribed period, with this limitation that no Court will annul the sale except on the ground of its having been made contrary to the provisions of the Act and that too only on proof that the plaintiff has sustained substantial injury by means of the irregularity complained of and that ground had been specified in the appeal to the Commissioner. In that case the ground on which the suit to annul the sale was filed, viz., ‑ that sections 5 and 17 of the Act had been contravened had not been taken in the appeal. The con tention on behalf of the plaintiff was that this requirement relates only to cases of irregularities and, not illegalities and this found favour with the Subordinate Judge and the High Court: But their Lordships of the Judicial Committee did not accept this view as is seen from the following observations occurring at page 174 "Giving, however, full weight to these considerations their Lordships, having regard to the scheme of the Act and the express direction contained in section 33, are of opinion that in every case where a sale for arrears of revenue is impeached as being contrary to the provisions of Act XI of 1859, no grounds of objection are open to the plaintiff which have not been declared and specified in an appeal to the Commissioner. In the opinion of their Lordships, a sale is a sale made under Act XI of 1859 within the meaning of that Act when it is a sale for arrears of Government revenue, held by the Collector or other officer authorised to hold sales under the Act, although it may be contrary to the provisions of the Act, either by reason of some irregularity in. publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened. In the other case 25 I. A 151 (supra) the proprietors had filed a suit to annul a Revenue sale of their share on the ground that there was no arrear due from them. What was due from them was wiped out by an abatement granted by the Board of Revenue but owing to a blunder in the office of the Collector this fact was wrongly noted against another estate; under Act XI of 1859 the remedy for them was to file an appeal to Commissioner and on failing in that appeal, to bring a suit on the very grounds urged in the appeal, but they presented the appeal out of time and filed a suit to annul the sale. The Subordinate Judge annulled the sale holding that failure to present an appeal within time did not exclude the suit as in point of fact there was no arrears; but the High Court dismissed the suit on two grounds‑(1) There had been no adjudication by the Commissioner upon the objections stated to the sale in the suit; and (2) They should have applied for a readjustment of the account. The Lordships of the Judicial Committee set aside the decision o the High Court on both these grounds but only the observation regarding the first ground is relevant for the purposes of this appeal. On this point they observed as follows at page 158: "Section 3 of the Act XI of 1859 provides that, in default of payment of revenue, within the time appointed for each district by the Board of Revenue, the estates in arrear in those districts shall be sold at public auction to the highest bidder. The Act does not sanction, and by plain implica tion forbids, the sale of any estate which is not at the time in arrear of Government revenue. The whole clauses of the Act of 1859, in so far as these relate to sales or to their challenge at the instance of the proprietor as well as the provisions of section 3 of Act VII of 1878 (Bengal), are framed upon the express footing that they are to be applicable to the sale of estates which are in arrear of duty. The enactments of 1859 and of 1868 are obviously intended to apply to cases in which, if the irregularity or illegality of the sale proceedings alleged by the objector be negatived, the sale will remain valid. But the chief and substantial objection upon which the appellants' plaint is based is that, at the time when their 5 annas share of the village Shazadpore Anderkilla was sold, there were no arrears of revenue due by them in respect of it. It does not appear to their Lordships to admit of dispute that the objection is founded in fact. In their opinion a stupid blunder made by the Collector or his staff in his own books cannot deprive the appellants of their right to claim, and have effect given to, the permanent abatement which was allowed by the Board of Revenue in March, 1884. The result is that the whole proceedings of the Collector with a view to the sale of the 5 annas share, were beyond his jurisdiction, and are not entitled to the protection given him by the Act in cases where sale is authorised, although it may be attended with some irregularity or illegality. Their Lordships are accordingly of opinion that it was rightly field by the Subordinate judge that he had jurisdiction to entertain the objection to the sale to which' he gave effect although the point had not been considered and disposed of by Commissioner". From these two decisions it appears to us that the exis tence of the arrear of revenue is the sina qua non of the Collector's jurisdiction to sell and that as long as there is an arrear due the remedy open is that which the Special Act provides, but if there be no arrear the there is no jurisdiction to sell and the Civil Court has jurisdiction to interfere at Common Law. We think that just as the existence of an arrear is necessary for the Collector to sell so also there should be a debt existing for the Board to settle under the Bengal Agriculturist Act. In Hazi Moharam Ali v. Munsar Ali (1) it was held by a Bench of this Court of which one of us was a member that where there is no allegation of the existence of a debt by either party the Board has no jurisdic tion. In that case the debtor had alleged that the transaction was a mortgage by conditional sale and the possession having (1) 55 C.. W. N. D, R. 85‑P, L. R. 1 Dacca 7.21. been with the creditor the debt was wiped out, while the creditor contended that there was no mortgage but that the transaction was a sale out and out. It was held that there was nothing for the Board to decide but that in substance what the applicant wanted was a declaratory relief which the Board could not give. The existence of a debt, it was observed, was the sine qua non of the Board's jurisdiction. In that case 48 C. W. N. 699 (supra) relied on by the respondent in the present case was cited for the position that under section 20 the Board had exclusive jurisdiction to decide if the transaction was a liability. This Court, however, did not decide that question but disagreed with the conclusion in that case as there also the debtor had said that the debt was wiped out while the creditor contended that there never was a debt, and this aspect was not considered by the learned judges who decided 48 C. W. N. 699 (supra). This is clear from the following observation in Hazi Moharam Ali v. Munsar Ali (supra) We have considered the decision in Bazler Rahman's case (supra) and we find ourselves unable to agree with the view expressed iii it. It. may be that the power to decide whether a liability is a debt or not includes the power to decide whether or not there is a liability; but where according to both sides there is no liability in existence, we fail to see what there is for the Board to decide. In our opinion, in Bazler‑Rahman's case the fact that according to both sides there was no liability in existence was not given .the fullest consideration which it seems to us to deserve. In the present case also the respondent who applied to the Board said that what he regarded a debt had been wiped out, and the appellant who was the Apposite party contended that there never was debt. As for section 18 of the Act the Board has, no doubt, power to decide about the existence of a debt; but for that section to apply there must be a doubt or dispute about the existence of a debt whereas in the present case there is neither a doubt nor a dispute. According to both sides there was no debt on the date of the application. As stated already, there never was, as far as the present appellant is concerned; and with regard to the respondent there was a debt once, but it was wiped out. Therefore in effect what was asked for by the applicant, before the Board was a declaration that the transaction was a mortgage by conditional sale and not a sale out and out. We have not been shown any provision of the Act under which the Board can give such a declaration which does not involve the settlement of a debt. It may be that if the applicant had admitted the subsistence of the debt treating the transaction as a mortgage and the creditor had come forward with the case that it was a sale out and out, the Board in settling the debt could have dealt with the question whether .the transaction was a mortgage or a sale. The observation in the decision of Ispahani and Choudhury JJ. in S.A. 1690!43 relied on by the respondent that that the learned judges in 55 C. W. N. D. R. 85 (supra) agreed with the principle enunciated in Bazler Rahman case (supra) we think, with respect, is not correct, Apparently it was under this impression that the learned judges did not discuss the decision in Bazler Rahman's case (supra) and consequently we have to go deeper into the question before us that what would have been necessary if in the earlier case the present question which was the main point for determina tion there also had been fully considered. The question therefore as already formulated is whether the Board has jurisdiction to decide if there is liability at all, and if so, is that jurisdiction exclusive. On the answer to this question depends the answer to the question whether the suit under appeal was competent. This brings us to a consideration of Bazler, Rahman's case (supra). The facts of that case were similar to those in 55 C. W. N. D. R. 85‑2 D. L. R. 310 (supra). We agree with the view expressed in the latter decision and if the aspect considered there had been dealt with in Bazler Rahman's case (supra) it might not have been considered necessary in that case to go into the present question. But the learned judges did go into the question ignoring that there was nothing before the Board to decide. Their view on the interpretation of section 20 has been explained by Biswas J. as follows : Now, as to the merits, the question is whether the learned Additional District judge was right in holding that the Debt Settlement Board had no jurisdiction to decide whether the transaction between the parties amounted to a mortgage by conditional sale or to an out and out conveyance with a condition for repurchase. The learned judge seemed to think that this involved the determination of a question as to the existence of a liability in the nature of a debt, as distinguished from the question whether a liability was a debt or not, and that under the terms of section 20 of the Act it was only a question of the latter, and not of the former description that‑a Debt Settlement Board was competent to decide. "We do not think the learned judge took a correct view of the matter. In the first place, he made a wrong assump tion that section 20 was exhaustive of the matters which a Board might or might not decide. That is not so. There are various questions besides those specifically mentioned in that section which a Board is not only competent, but is required to decide under the Act. Thus section 18 provides that if there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount: Take, again, the definition of a 'loan' in section 3 (10); which is expressly stated to include any transaction which is, in the opinion of the Board, In substance a loan. This clearly shows that where there is any, question as to whether a transaction is loan or not, it is for the Board to come to a conclusion in the matter upon consideration of all the attendant facts and circumstances. The question in the present case is really one of this kind. Rightly or wrongly, the petitioner here came to the Board wits the case that the sum which his father and his co‑sharers had received from the opposite parties was not the purchase price of a property sold and delivered to the latter but merely a loan advanced to them on the security of that property. That being so, it would certainly be within the competence of the Board, under the definition to form an opinion as to whether this was the real character of the transaction. Secondly, we think the learned judge placed too narrow an interpretation on the terms of section

20. It seems to us that the power to decide whether a liability is a debt or not, must necessarily include the power to decide whether or not there is a liability. The learned judge may be right in thinking that the two questions are not quite the same, but the first involves the second, and where, therefore, there is any doubt or dispute as to the existence of a liability, this must be first determined before and as a preliminary to the determination of the further question as to the nature of the liability. To give effect to the view of the learned judge would in fact be to render the provisions of the whole Act nugatory for, if he is right, it would be possible in every case to defeat an application by merely asserting that there is no liability, and thereby ousting the jurisdiction of the Board. We do not think there is anything in the language of section 20 which compels us to adopt a construction which involves such a result. The main criticism of this view by the appellant as already indicated is that section 20 wt amended in 1940 to enlarge the powers of the Board as in some cases it was held that the Board had no jurisdiction to decide if a liability is a debt, and that being so, if the Legislature had intended to give the Board jurisdiction to decide if there is liability at all it would have in the amended section put the word transaction where the word liability occurs. True, the amendment could have been to that effect, but the section as it is now seems to us to imply the power to decide if there is a liability at all. As pointed out, by Biswas J. the power to decide if a liability is a debt involves the power to determine whether there is a liability at all unless as suggested on behalf of the appellant 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 an 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 take cognizance of a matter brought before it is disputed the Court must adjudicate upon the question. As observed in 20 C. L. J. 213 at 217 (32) the Court has jurisdic tion to determine that it has no jurisdiction to deal with the matter before it. The, Board is not a Court but there can be on doubt that it is a quasi‑judicial body whose awards are of legal effect, and we think the elementary principle referred to above extends to it also. In the nature of things the Legislature could not have intended to exclude the Board from the application of the elementary principle that a Court has jurisdiction to deal with the objection raised to its jurisdiction. Though; it has not stated so specifically it must have meant this principle to apply. Holding otherwise would lead to this conclusion that the Legislature passed this Act not with a view to make it effective but to have it as a measure without effect, for if it is held that the moment objection is raised that there is no liability the Boards jurisdiction is ousted then as pointed out by Biswas J. a person opposing the application before the Board can render it powerless by merely raising the objection and thus defeat the main object of the Act which is of remedial nature. It does not create a liability but gives the debtor an easier remedy and as has been pointed out by the Supreme Court of India in 1950, Supreme Court Reporter 74, the words of a remedial statute must be construed so far as they reasonably admit so as to secure that the reliefs con templated by the statute shall not be denied to the persons intended to be relieved. That this Act has been passed to relieve the agricultural indebtedness is clear from its preamble and if the appellants' contention is accepted this object of the Act can be defeated by a creditor by raising a groundless objection that there is no liability and therefore the Board has no jurisdiction. Then again as pointed out by Biswas J. the definition of loan clearly indicates that the Board has jurisdiction to determine this question. We therefore consider that the Board has jurisdiction to decide if there is a liability at all and that this jurisdiction is the Board's exclusively. We agree with the following observation in Nur Mia anal another v. Noakhali Nath Bank Ltd. (43 C W N 326) "The Bengal Agricultural Debtors Act is undoubtedly a special Act which confers special jurisdiction upon the Tribunal set up by it to deal with certain specified cases and it lays down new remedies and a new procedure. The jurisdiction that the Debt Settlement Board exercises within the limits of its authority must be deemed to be exclusive end cannot concur recently be exercised by the Civil Court. This is apparent from the whole scheme and structure of the Act and parti cularly from sections 33 to 36 which are intended to stay the hands of the Civil Court or to render its orders and decisions nugatory when they came into conflict with anything which is done by the Board under the provisions of the statute." With the actual decision in that case we express no opinion as that was a case before the amendment of section 20 and the point there related to section

34. As regards section 34 we shall make our observation later. We have quoted the above observation to indicate the general policy of the Act. That .the scheme of the Act, indicates what has been observed in the above passage is clear also from the fact that while under section 45 of the Act the Board can determine the point before it unfettered by the law of evidence that is to say without the restriction of section 91 or 92 of the Evidence Act or the rule against hearsay evidence,, the Court at common law does not enjoy that freedom. Therefore whatever powers the Board was under that Act can be exercised by it alone and in view of our 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 matter within its jurisdiction a suit does not seem to lie. As for Sm. Monomohini Chowdhurani v. dabedulla Mia (supra) in respect of which Biswas J. is said to have differed from the view he expressed in 48 C. W. N.669, (supra) objection, to the Boards' jurisdiction was raised on a different footing. Section 20 was not interpreted in that case. One of the objections was that the Board issued the notice under section 34 after it had become functus officio. However even if 51 C. W. N. 927 (supra) had expressed a different view we would have preferred the decision in 48 C. W. N. 699 (supra)., The correctness of this decision was doubted in 49 C. W. N. 592 (supra) but beyond a mere expression of doubt there is no argument in that decision on this point. In 53 C. W. N. D. R. 15 (supra) the former C. J. of this Court no doubt observed, "it appears to me that it is now well settled that the jurisdiction of the Civil Court as to the question whether a transaction is a liability or not is not barred under the provisions of the Bengal Agricultural Debtors Act "But no reference is made in that judgment to any decision holding such a view, nor is any reason given in support of it. It does not appear to us the learned Chief Justice found it necessary to deal with this question fully for, he has observed that the fact that the Civil Court has jurisdiction cannot be of much assistance to the appellant before him. The other decisions of this Court referred to above are not in conflict with the view in 48 C. W. N. 699. (supra) with which we have for reasons stated already expressed our agreement. The other decisions of the Calcutta High Court to which reference has been made above related to the ques tions whether a Civil Court can examine the validity of a notice issued under section 34 of the Act. On this point, a Bench of this Court of which one of us was a member held in L. P. Appeal 7/45 agreeing with the view expressed in 49 C. W. N. 151 (supra) that a Civil Court has authority to determine whether a notice is valid or not and to ignore if it is a nullity unless the validity of the notice is chal lenged on a ground which is within the exclusive competence of the Board to decide. In view of this decision with which we agree it is not necessary to discuss those decisions. As regards the merits of the present case, Ormond J. in his order of reference after citing the proviso to section 58 (c) of the Transfer of Property Act, under which no transaction shall be deemed to be a 'mortgage unless the condition is embodied in the document which purports to effect a sale, points out that the Bengal Agricultural Debtors Act does not exclude the applicability of the Transfer of Property Act to cases before the Board and that its decision in this case offends against 58 (c) of that Act; but in our opinion if the decision is wrong on facts or in law the remedy open to the aggrieved party is that provided for by the Special Act. This is clear from the observations we have quoted from 20 I. A. 165 (supra) arid 25 I. A. 151 (supra). The appellant could therefore pursue the only remedy provided in the Act and not file a suit. As stated already in this case there were two transactions and the Board had decided in favour of the debtor in one of them and against him in the other. The first Court observed that the appeals in respect of both the decisions were pending at the time the suit was filed, but the judgment of the first appellate Court refers to the pendency of the appeal only with regard to the transaction in respect of which the Board dismissed the application of the debtor: As regards the first transaction, the District judge held that the suit did not lie as the question involved was one for the Board to determine and the decision of the Board on that point could riot be questioned at common law. As regards the second transaction, the District judge considered that the suit was incompetent because of section 33 of the Act udder which no Civil or Revenue Court shall entertain a suit or an application in respect of any debt included in an application under section

8. Neither of the Advocates before us is in a position to tell us if the appeal is still pending. In the view we have expressed with regard a powers of the Board under section 20, the decision of the District judge is correct and has to be upheld. As. regards the first transac tion which the Board has held to be a liability amounting to a debt we consider that decision is final subject to the result of an appeal that has been filed against that decision, and that a Civil suit at common law does not lie. As regards the second transaction, the suit was obviously barred at the 'time it was filed as the matter was then in appeal under the Special Act. We, therefore, affirm the decision of the lower appellate Court and dismiss this appeal, but we do not make any order as to costs. AKBAR, J.‑I agree. A. H. Appeal dismissed.