1. This application is directed against the Order No.24 dated June 9, 2009 passed by the learned Civil Judge (Junior Division), Ghatal, Paschim Medinipur in Title Suit No.80 of 2007 thereby rejecting an application dated March 13, 2009 filed by the defendant for reference.
2. The short fact necessary for the purpose of disposal of this application is that the opposite party nos.1 to 14 filed the instant suit being Title Suit No.80 of 2007 for declaration of title, injunction and other reliefs against the defendant no.1 and other proforma defendants before the learned Civil Judge (Junior Division), Ghatal.
3. The defendant / petitioner herein entered appearance in the said suit and he is contesting the suit by filing a written statement controverting all the material allegations raised by the plaintiffs in their suit. It is the specific contention of the defendant that he was an Agricultural Labourer under Late Anil Sannasi and for his act of labour, the said Annil Sannasi, when alive, constructed a chhitabera hut and conferred the said hut with the land to the defendant for stay thereat for livelihood. This happened in the year 1381 B.S. Since then, the defendant is in possession of the said land. The record of rights in L.R. record had been made in his name with knowledge to the plaintiff.
4. The defendant filed an application for referring the matter to the Collector under Section 9 of the West Bengal Acquisition of Homestead Land for Agricultural Labours, Artisans and Fishermen Act, 1975 (henceforth shall be called as “the said Act”). The plaintiffs raised objection against that application. The learned Trial Judge rejected the said application upon hearing both the sides. Being aggrieved, this application has been preferred. Now, the question is whether the learned Trial Judge is justified in rejecting the said application.
5. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I find that the petitioner prayed for referring the matter under Section 9 of the said Act. Whenever any claim is made by any person in the suit that he is copying any portion of the land under Section 4 of the said Act, such question shall be referred to the concerned Collector for decision thereon. For convenience, the Section 9 of the said Act is quoted below: - Settlement of disputes.-
(1) If there is any dispute on the question as to whether land has vested in an occupier under the provisions of section 4, the matter shall be referred to the Collector, whose decision thereon shall be final.
(2) The manner in which the Collector shall decide the dispute shall be such as may be prescribed. In order to decide the jurisdiction on the said question, it will be better if the Section 12 of the said Act is taken into consideration.
The said Section is, therefore, quoted below for convenience:-
Bar to jurisdiction of civil courts.-
No court shall entertain any suit, application or proceeding in relation to any land or any part thereof which has vested in an occupier under section 4 and no occupier shall be liable to be evicted or dispossessed from such land notwithstanding any judgment, decree or order of any court for such eviction or dispossession. Thus, from the provisions of Sections 9 and 12 of the said Act, it is evident that the concerned Collector is the appropriate authority to decide the question and whenever any issue in this regard comes forward before a Civil Court, the Civil Court has no other alternative to refer the matter to the concerned Collector. By the word “shall” it indicates that the reference to the Collector is mandatory and not optional for further clarification.
6. It has been clarified in Section 12 of the said Act that no Court shall entitle any suit, application or proceeding in relation to any land or any part thereof and no occupier shall be liable to be evicted or disposed from such land notwithstanding any judgment, decree or order of the Court for such eviction or disposition. The Section 13 of the said Act further clarifies that the provision of the said Act shall have the effect, notwithstanding, anything to the contrary contained in any other law or in any contract, express or implied, or in any instrument and not withstanding any usage or custom to the contrary.
7. Therefore, the Trial Judge was bound to refer the matter to the Collector. In that view of the matter, I am of the opinion that the learned Trial Judge has committed errors of law in deciding the matter impugned on the basis of application and its objection. The impugned order cannot be supported. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside.
8. The learned Trial Judge is directed to refer the matter to the concerned Collector with indication to submit a report within a specified time as fixed by him. Thereafter, on receiving the report, he shall proceed with the matter in accordance with law.
9. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.