Calcutta High Court (Appellete Side)
Tapan Kumar Ghosh & Anr vs State Of West Bengal & Ors on 27 June, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
27.6.2011. W.P.L.R.T. No. 107 of 2011
Tapan Kumar Ghosh & Anr.
-vs-
State of West Bengal & Ors.
Mr. Z. Islam
.. for the petitioners.
Mr. Chandi Charan De
Mr. Sk. Md. Galib
.. for the State.
Mr. Atarup Banerjee
Ms. Paromita Jati
.. for the private respondent.
________
Pratap Kumar Ray, J.
Heard learned Advocates appearing for the parties.
Assailing the order dated 31st January, 2011 passed in O.A. No. 899 of 2009 (LRTT) by the West Bengal Land Reforms and Tenancy Tribunal, First Bench, this writ application has been filed.
The impugned order reads such:-
"31.01.11. The matter is taken up for hearing. We have heard Ld. Counsel for the petitioners, Private Respondent No. 7-12 and Ld. Government Representative.
The present petitioners challenged the order passed by the appellate authority on 25.08.2008 in connection with Appeal Case No. 55 of 2007. That was one under section 54 of WBLR Act.
In this case 3 plots are involved namely .76 decimal of plot no. 96, 51 decimal in plot no. 97/473 and 9 satak in plot no. 98.
It is to be mentioned here that the present petitioners claimed bargadar under Gour Chandra Koley & Ors. It is their case that they were possessing 2 the said plots as bargadar under the said persons for a long period i.e. from 1989. It is the further case that they used to deliver share of the crop as well as fish to the owners for which receipts were granted which are in the form of "Sikarukti" and "Angikarpatra". Those are annexed and are at page 15 and 16.
The lands in question were transferred in favour of the Private Respondent in the year 1007 and thereafter they filed application before the B.L. & L.R.O., Purbasthali-II, District-Burdwan, for recording their names.
The B.L. & L.R.O. disposed of the application by passing order to the effect that name of the present petitioners be recorded with respect to 45 decimal of land in Dug No. 96. The other prayer was denied.
Against the order passed the B.L. & L.R.O., one appeal was preferred whose no. has been mentioned earlier.
The Appeal was transferred to the S.D.L. & L.R.O., who by order impugned i.e., 25.08. 2008 affirmed the order passed by B.L & L.R.O. By the said order the S.D.L. & L.R.O., directed the B.L. & L.R.O. to pass order with respect to another application wherein prayer was made by the present petitioner to record their names as "permissive possessor".
At the time of hearing Ld. Counsel for the petitioners drew our attention to at page 15 & 16 of the application and on the basis of the same it was contended that the previous owners admitted the present petitioners as bargadar for which those documents were executed. It is the further plea of the present petitioners that as that was nothing but admission by the previous owner the present petitioners will be bound to accept the same as after their purchase they have stepped into the shoes of the previous owner. It was the further prayer of the present 3 petitioners that the B.L. & L.R.O., in his order mentioned the word fit for "Boro cultivation". Accordingly it was contended that it is without jurisdiction of the B.L. & L.R.O. to mention those words as bargadar means and includes the name of persons who cultivate land.
The said pleas were strongly opposed by Ld. Private Respondent contended before us that the present petitioners also approached the Civil Court at Kalna by filing once case which is number as T.A. 17 of 2010 and the prayer of the present petitioners for interim injunction was rejected.
During hearing it was revealed that the present petitioners failed to get any order of injunction and the said application was disposed of. Ld. Government Representative raised objection regarding admissibility of the "Angikarpatra" and "Sikarukti" which are appearing at page 16 & 15. It goes without saying that under the WBLR Act the owner shall give receipt on getting the share of the crop and it is to be granted for every year. There is no provision in the L.R. Act for providing a single receipt for a period of more than 10 years.
The said two documents, under the WBLR Act can never be accepted as receipt showing delivery of share of the produce to by the petitioners.
The apprehension in the mind of this Tribunal that those were concocted or manufactured only or the purpose of the said cannot be brushed aside. At the time hearing the attention of this bench was drawn to the case reported in (2009) 5 ACC specially to paragraph 49.
We have gone though the said para meticulously.
In our humble opinion the act of the said case is totally different from the instant one and the 4 principle as laid down in that case is not attracted in the instant case.
It is to be mentioned that at the time of hearing the order impugned was also challenged by the petitioners on the ground that the S.D. & L.R.O., being the appellate authority have no jurisdiction to direct the B.L. & L.R.O. to dispose of the prayer for permissive possession filed by the appellant before him.
It was the contention of Ld. Counsel for the petitioners that the application was already disposed of and by passing the said direction, the appellate authority exceeded its jurisdiction which will violate the natural justice.
We cannot accept the said plea. The order passed in connection with Misc. Case No. 30 of 2008 is at page 35 which goes to show that the order was passed on 20.10.2008 on the basis of order passed by the appellate authority in connection with Appeal Case No. 55 of 2009. We therefore hold that the said direction was justified which was subsequently complied by the concerned B.L. & L.R.O. In view of the said position and also considering the materials on record w are of clear opinion that the instant application has no merit and the same is dismissed on contest."
A very short question involved as to whether in one plot there may be more than one person as bargadar. The Bhagchas Officer recorded names of present petitioners being two in number as bargadars in respect of certain portion of land.
Assailing such barga recording which was for certain portion, the bargadars, the present writ petitioners moved 5 the Appellate Authority claiming barga right in respect of entire plot measuring 0.76 decimal, unsuccessfully.
Challenging the decision of Appellate Authority, application before learned Tribunal below was moved which stood dismissed.
Against the order of learned Tribunal below, this writ application.
As per definition of bargadar under Section 2 (2) of West Bengal Land Reforms Act, 1955, only one person is entitled to cultivate land under the system barga or bhag and is entitled to have recording his name as bargadar.
Section 2(2) reads such:-
"2......
(2) "bargadar" means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person; [and includes a person who under the system generally known as kisani [or by an other description] cultivates the land of another person on condition of receiving a share of the produce of such land from that person;] [but does not include a person who is related to the owner of the land as-
(a) wife, or
(b) husband, or
(c) child, or
(d) grandchild, or
(e) parent, or
(f) grandparent, or
(g) brother, or 6
(h) sister, or
(i) brother's son or brother's daughter, or
(j) sister's son or sister's daughter, or
(k) daughter's husband, or
(l) son's wife, or
(m) wife's brother or wife's sister, or
(n) brother's wife,], and..."
The barga right is a heritable right but if there is more than one legal heir and dispute raised on cultivation issue by exercising barga right, Section15A is the relevant provision by which the issue to be decided by Revenue Officer determining/adjudicating the name of one legal heir as bargadar in respect of concerned plot. Section 15A reads such:-
"15A. Constitution of right of cultivation on bargadar's death.- (1) Notwithstanding anything contained in any law for the time being in force or in any contract to the contrary, where a bargadar, cultivating any land, dies at a time when cultivation of such land by the bargadar was continuing, the cultivation of such land may be continued by the lawful heir of the bargadar or where there are more than one lawful heir, by such lawful heir of the bargadar as all the lawful heirs of the bargadar may determine within the prescribed period :
Provided that where the lawful heirs of the bargadar omit or fail to make a determination as required by this sub-section, the officer or authority appointed under sub-section (1) of section 18 may nominate one of the lawful heirs of the bargadar, who is in position to cultivate the land personally, to continue the cultivation thereof.7
(2) The lawful heir of the bargadar who is determined or nominated for the cultivation of the land shall cultivate the land subject to such terms and conditions as may be prescribed.
(3) Where-
(a) no lawful heir of the bargadar is in a position to cultivate the land personally, or
(b) the lawful heirs of the bargadar fail to determine, within the prescribed period, the heir by whom the cultivation of the land will be continued and the officer or authority appointed under sub-section (1) of section 18 also omits or fails to nominate, within the prescribed period, any lawful heir of the deceased bargadar for the continuation of the cultivation of the land, or
(c) the person determined or nominated under sub-section (1) omits or fails to take any steps, within the prescribed period, for the continuation of the cultivation of the land, cultivation of the land may be continued by such person, whether an heir of the deceased bargadar or not, as may be nominated by the person whose land was cultivated by the deceased bargadar."
Hence, it appears that in a particular specific plot there cannot be bargadar more than one person and there is no concept of exercise of joint barga right under the four corners of the West Bengal Land Reforms Act, 1955.
8Having regard to such, the impugned decision of Revenue Officer whereby writ petitioners have been declared jointly as bargadars in respect of plot no. 97 with reference to area 0.45 decimal out of total 0.76 decimal, is illegal. Hence, the order of learned Tribunal below, order of Appellate Authority and Revenue Officer concerned, all are set aside and quashed. This judgement, however, will not debar the Revenue Officer to adjudicate right of any one person as bargadar in respect of one plot of land.
The writ application is disposed of accordingly.
Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) I agree.
(Md. Abdul Ghani, J.) sks.
sks.
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