Calcutta High Court (Appellete Side)
Shambhunath Nath Ghosh & Ors vs The State Of West Bengal & Ors on 11 April, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Ishan Chandra Das
W.P.L.R.T. 197 of 2013
Shambhunath Nath Ghosh & Ors.
-Vs-
The State of West Bengal & Ors.
For the pwtitioners : Mr. Saptanshu Basu,Adv.
: Ms. Udaynarayan Betal, Adv.
For the State : Mr. Chandi Charan De, Adv.
: Mr. Soumitra Bandoopadhyay, Adv.
For the Respondent
No.7 : Mr. Rajdeep Bhattacharya, Adv.
Heard On : 02.04.2014
Judgment On : 11th April, 2014.
Jyotirmay Bhattahcarya, J.
This writ petition is directed against an order dated 9th July, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A No. 694 of 2012 (LRTT) at the instance of the writ petitioner who is the admitted land owner of the land in dispute.
By the said order, the Learned Tribunal affirmed the order of the Appellate Authority by declaring that the Respondent No.7 herein is the bargadar in respect of the land in dispute under the petitioner herein.
Let us now consider as to how far the Learned Tribunal was justified in declaring the private respondent No.7 as the bargadar in respect of the disputed land under the petitioner in the facts of the instant case. For proper appreciation of the dispute involved in this writ petition we record herein the short background of the case leading to the filing of present writ petition.
Originally one Bishnu Pada De was the admitted owner of the land comprised in L.R Plot Nos.670, 673 and 676 corresponding to R.S Plot Nos.564, 563/1228 and 567 measuring about 0.53, 0.48 and 0.45 decimals respectively within Mouza Mukundapur, J.L No.18 under P.S. Chanditala, Block Chanditala‐1, District Hooghly.
After demise of the said Bishnupada De, his heirs and legal representatives sold the said land to the Respondent Nos. 5 and 6, namely, Ganesh Chandra Karmakar and Kalpana Karmakar respectively, by a registered deed of Kobala being No.333 of 1995. In the said sale deed it was mentioned that the said land was under the physical possession of the said Respondent Nos. 5 and 6 who had been cultivating the said land personally, and at the time of such sale, physical possession thereof was delivered to the said respondent Nos. 5 and 6. Accordingly, L.R record of rights relating to Plot No.137/2 and 75/1 were prepared by the authority showing their actual khas possession over the said land. Subsequently, on or about 23rd December, 2002 the said respondent Nos.5 and 6 sold and/or transferred the said land in favour of the petitioners herein by a registered sale deed dated 23rd December, 2002 and they delivered peaceful khas (vacant) possession of the said land to the petitioners. The petitioners claim that since then they have been cultivating the said land personally. Immediately a few days before of such transfer of the said land to the petitioners by the said respondent Nos. 5 and 6, an application was filed by the respondent No.7 herein for recording him as bargadar in respect of the said land under the respondent Nos. 5 and 6. On such application being filed by the respondent No.7 a miscellaneous case being Misc. Case No.06 of 2009 was started by the concerned BL & LRO as per Section 18 of the West Bengal Land Reforms Act, 1955. Even though the land was transferred by the respondent Nos. 5 and 6 to the writ petitioners herein during the pendency of the said proceeding, the petitioners were never joined as parties in the said proceeding and thus, the said proceeding was in fact, continued and disposed of in the absence of the petitioners and without their knowledge. Curiously enough the respondent Nos. 5 and 6 even after transferring their interest in the said property in favour of the petitioners, participated in the said proceeding without raising any objection as to the maintainability of the said proceeding in the absence of the subsequent transferees. Instead of raising any objection regarding maintainability of the said proceeding they silently appeared in the said proceeding, and adduced evidence therein admitting the respondent No.7 as their Bargadar in respect of the said land.
It was further stated by them that they never granted any receipt acknowledging receipt of their share of the produce of the said land from the respondent No.7 as they had a cordial relationship with the respondent No.7. This part of the evidence of the original owner was taken note of by the concerned BL & LRO and ultimately by relying upon the said evidence of the petitioners' vendor, the said BL & LRO declared the respondent No.7 as the bargadar of the respondent Nos. 5 and 6 in respect of the said land. After coming to know about the said order of the concerned BL & LRO the petitioners herein preferred an appeal before the Sub‐Divisional Land and Land Reforms Officer, Serampore, Hooghly, but they ultimately failed to succeed in the said appeal before the Appellate Forum. The order passed by the said BL & LRO, on 10th January, 2003 was affirmed by the Appellate Authority by its order dated 20th November, 2006. The said order of the Appellate Authority was again challenged by the petitioner before the West Bengal Land Reforms and TenancyTribunal and the said Tribunal Application being O.A No.605 of 2007 (LRTT) was also dismissed on contest on 4th December, 2007.
The order of Appellate Authority was thus, affirmed in the said proceeding by the Learned Tribunal.
Being aggrieved by and dissatisfied with the said order of the Learned Tribunal passed on 4th December, 2007, the petitioner herein filed a writ petition being W.P.L.R.T. No.33(W) of 2008 which was allowed by the Division Bench of this Hon'ble Court on 19th December, 2008. The order passed by the Revenue Officer which was affirmed in appeal and was re‐affirmed by the Tribunal, was ultimately set aside by the Division Bench of this Hon'ble Court. The recording of Bargadar in favour of the respondent No.7 which was made by the concerned Revenue Officer was set aside and the said proceeding was remanded back to the concerned BL & LRO with a direction upon him to consider the said miscellaneous case afresh by following the observation made in the said judgment with a caution to him that in case any of the ingredients which is necessary to be proved for becoming a bargadar as mentioned in the said judgment is lacking, he shall pass appropriate order. Status quo as on that date with regard to cultivation which was arranged by an earlier order passed in the said writ petition was directed to be maintained till the disposal of the matter. Since the proceeding was remanded with some observations following which the said miscellaneous case was directed to be considered by the concerned Block land and Land Reforms Officer, we feel it necessary to indicate in short the observations made by Their Lordships in the said remand order. It was held therein that the field enquiry which was relied upon by the concerned BL & LRO, while passing the order prior to remand, was a worse piece of evidence inasmuch as such evidence to some extent was hear‐say evidence. It was further observed therein that though strict proof of evidence is not necessary in such a proceeding but that does not mean that it would not require subjective prove by derivative evidence. Their Lordships held that in order to establish bargadar in the land of another person, the Bargadar must prove the following:‐
1. that he himself is cultivating land from his own sources;
2. that he shares crops with the land owner, in the proportion provided in the Act and such factum of sharing of crops must be established by documentary evidence, namely receipt;
3. that in case of refusal to accept the share crops by the land owner, he must deposit the same to the credit of the land owner with the concerned Block Land and Land Reforms Officer and obtain a receipt;
4. that in case of refusal to grant receipt against tendering of share crops, the bargadar has to lodge a complaint before the Magistrate under Section 19A (2A) of the West Bengal Land Reforms Act.
It was further held therein that lodging of such complaint, prima facie establishes the fact of refusal to grant receipt as Section 19A (2A) of the West Bengal land Reforms Act provides that refusal to grant receipt is a punishable offence and the same is cognizable also. Therefore, the importance of issuance of receipt is well‐understood. With these observations the Original Miscellaneous Case was sent back to the concerned BL & LRO for reconsideration. After remand, supplementary written argument was submitted by the respondent No.7 before the concerned BL & LRO enclosing thereto certain documents such as (i) letter which was given by the respondet No.7 to the present petitioners requesting them to collect their share in the produce and (ii) Notices given by the respondent No.7 to the Pradhan of the concerned Gram Panchyat and also to the concerned BL & LRO by registered post by which they were informed about the petitioners' refusal to collect their share of produce from the said respondent. The postal receipt showing sending of such letter of intimation to the concerned authorities were also filed along with the said supplementary written argument, Cash Memo showing purchase of certain quantity of fertilizer (Urea) from a fertilizer shop was also annexed to the said affidavit. Considering the aforesaid documents filed by the respondent No.7 and also by referring to the original evidence of the petitioners' vendor, the Revenue Officer again held that it was a fact that the said respondent No.7 failed to deliver the petitioners' share of the produce to the petitioners as the respondent No.7 was unaware about the transfer of the said land in favour of the petitioners upto 2005, but immediately after coming to know about the said transfer, he requested the petitioner to collect their share of the produce vide Ext. B and on his refusal to accept their share of the produce from the said respondent No.7, the fact of such refusal was communicated to the concerned BL & LRO by the said respondent No.7. Thus concerned BL & LRO held that the respondent No.7 had succeeded in establishing that he was a bargadar under the land owner in respect of the said land. The said order of the concerned BL & LRO was challenged by the petitioners before the Appellate Authority namely, DL & LRO, Hooghly, in appeal under Section 54 of the West Bengal land Reforms Act, 1955. The said appeal which was registered as L.R Appeal No.765 of 2009 was ultimately dismissed by the Appellate Authority on 3rd January, 2012 by affirming the order of the BL & LRO by holding, inter alia, that the respondent No. 7 is cultivating the suit land from his own source but he is unable to share the produce with the land owners as they were reluctant to receive such share of produce from the respondent No.7 and on such refusal of the landowner, the respondent No.7 tried to deposit the owners' share of produce with the BL & LRO but he could not ultimately succeed in his venture.
The petitioners were not satisfied with the said judgment and order of the appellate Authority. Hence they challenged the same before the West Bengal Land Reforms and Tenancy Tribunal by filing an application being O.A No.694 of 2012 (LRTT) which was also dismissed on contest and the order of the Appellate Authority was affirmed therein. While affirming the said order of the Appellate Authority, the Learned Tribunal did not consider as to whether the concerned Revenue Officer and/or Appellate Authority at all followed the directions passed by the Division Bench of this Hon'ble Court in the remand order, while disposing of the said miscellaneous case and/or the appeal arising therefrom. Instead of examining the judgment passed by the Learned Tribunal in the light of the directions passed by earlier Division Bench of this Hon'ble Court, in the remand order, the Learned Tribunal practically dismissed the said appeal by relying upon the evidence of the petitioners' vendor which was recorded in the said proceeding prior to remand and after taking note of their admission made by them in their evidence regarding the status of the respondent No.7 as bargadar under them in respect of the said land, dismissed the said Tribunal Application by affirming the order of the Appellate Authority.
The legality and/or propriety of the said order of the Tribunal is under challenge before us in this application.
Let us now consider as to whether the respondent No.7 was able to establish his claim as bargadar in the said land under the land owners in the light of the observations made by the earlier Division Bench of this Hon'ble Court in its remand order.
At the very outset it may be mentioned herein that even after remand no further evidence was given by the respondent No.7 to establish his claim of bargadarship in the said land despite observation was made by the earlier Division Bench of this Hon'ble Court in the remand order that though laws of evidence is not strictly applied in such proceeding but the basic facts regarding cultivation of the petitioners' land by the respondent No.7 and sharing of produce between them in the same proportion as mentioned in the said Act are required to be proved by substantive evidence. Respondent No.7 being the applicant in the said miscellaneous proceeding, was thus, required to prove the basic facts by substantive oral evidence to establish his claim of bargadarship in the said land. This is lacking in the present case.
However, after remand he produced certain documents by way of supplementary affidavit to show that he purchased fertilizer (Urea) from a fertilizer shop. This document was annexed to the said affidavit to show that he cultivated the said land by spending his own money. We have meticulously examined the said receipt. The said receipt does not bear the signature of the respondent No.7 in the signature column of the purchaser. Even assuming that the respondent No.7 purchased the said quantity of fertilizer from the said shop, but there is no evidence on record to show that the said fertilizer was used in the disputed land for cultivation of the same by the respondent No.7. As such the said receipt cannot be co‐related to the claim of the respondent No.7 that he purchased the said fertilizer and utilized the same for cultivating the disputed land.
No doubt he wrote a letter requesting the petitioners to receive their share of produce from him and since the petitioners refused to accept the same by granting receipt, the respondent No.7 intimated the same to the concerned Pradhan and the BL & LRO.
Let us now consider the impact of those documents on which the respondent No.7 has relied upon in the said proceeding. Fact remains that though the petitioners purchased the said land in the year of 2002 but no such request was ever made to the petitioners before the order was passed by the Appellate Authority. It is only when the respondent No.7 was declared as bargadar by the Bl & LRO and such declaration was approved by the Appellate Authority, the said respondent No.7 wrote the said letter to the petitioners by requesting them to collect their share of the produce. We decline to rely upon such post proceeding documents as we do not feel it safe to declare the respondent No.7 as bargadar in respect of the said land by relying upon those incredible documents. We further hold that in the absence of any reliable documents issued by the landowners, the respondent No.7, cannot be declared as bargadar in respect of the said land. That apart, intimation given to the Pradhan about the refusal to accept the share of the produce by the petitioner, cannot be regarded as due compliance of the provision contained in Section 18 of the West Bengal Land Reforms Act, 1955. Of course, some documents have also been produced to show that on the petitioners' refusal to accept such share of produce by them, the said fact was also intimated to the concerned BL & LRO who is the authority under the said Act in this regard. But still then we hold that giving such intimation to the BL & LRO itself cannot be held to be due discharge of the obligation cast upon a person claiming to be a bargadar regarding sharing of produce with the landowner as per Section 18 of the West Bengal Land Reforms Act 1955. Section 18 of the said Act provides that in case of refusal to accept such produce by the land owner, the person claiming to be the bargadar is required to deposit the owner's share of crops with the Revenue Officer and on such deposit being made, notice will be sent to the land owner by the said Revenue Officer for receiving his share of crops from the office of the BL & LRO and in the event a land owner, even after receipt of such notice fails to receive his share of produce within prescribed period from the concerned BL & LRO, the share of produce may be sold by the BL & LRO and the sale price will be given to the land owner as per the provision of the said Act.
Considering the aforesaid provisions of the West Bengal Land Reforms Act, 1955 the earlier Division Bench of this Hon'ble Court, while passing the remand order, categorically mentioned that while reconsidering the said miscellaneous case, the concerned BL & LRO was required to consider the said miscellaneous case in the light of the said provision contained of the West Bengal Land Reforms Act. We do not find that this part of the requirement as provided under Section 18 of the said Act, could be satisfied by the respondent No.7 in the said proceeding. The respondent No. 7 has also failed to establish that he ever lodged any complaint before the concerned authority for initiating a criminal proceeding against the land owner as per the provision contained in Section 19A (2A) of the said Act. This was one of the conditions which was directed to be considered by the Revenue Officer in the remand order but the Revenue Officer did not consider the effect of not lodging any such complaint by the respondent No.7 as per the provision contained in Section 19A (2A) of the said Act. Thus, we have no hesitation to hold that the order which was passed by the Revenue Officer and which was affirmed in appeal by the Appellate Authority and was re‐affirmed by the Tribunal in the impugned order was passed without following the observations made by the other Division Bench of this Hon'ble Court in the remand order. On the contrary the authorities concerned and particularly the Tribunal declared the respondent No.7 as bargadar by relying upon the admission made by the petitioners' vendor regarding their relationship with the respondent No.7 as bargadar under them in respect of the said land even though the Division Bench, while passing the remand order held that the respondent No.7 cannot be declared as bargadar by relying upon such admission of the erstwhile landlowners. The Learned Tribunal held that the deposition given by the petitioners' vendor before the Revenue Officer having not been set aside by the Division Bench of this Hon'ble Court, while passing the remand order, cannot be discarded all together. Thus, relying upon the admission made by the petitioners' vendor about their relationship with the respondent No.7 as their bargadar in respect of the said land, the Learned Tribunal concluded by holding that it was established by the respondent No.7 that he remained in possession and cultivated the said land and delivered the share of crops to the raiyat and thus, the necessary conditions for establishing his Bargadari Right were fulfilled in the instant case. The Learned Tribunal held that production of receipt become secondary in the facts of the instant case. Holding as such the learned Tribunal affirmed the said order of the Appellate Authority. In our view this part of the findings of the Learned Tribunal is absolutely illegal and contrary to the observations made by the other Division Bench in its remand order. Fact remains that the Division Bench of this Hon'ble Court, while passing the order of remand, declined to declare the respondent No.7 as bargadar in respect of the said land by relying upon such admission made by the petitioners' vendor. As such, this part of the evidence without being further strengthen by substantive evidence, by the respondent No.7 to support of his claim for bargadarship in the said land, cannot by itself be held to be sufficient to declare the respondent No.7 as Bargadar in respect of the said land.
Thus we hold that the respondent No.7 failed to establish his Bargadarship Right in respect of the said land. Had there been any bona fide on his part, the respondent No.7 in our view, at least would have deposited the owner's share of produce with the concern BL & LRO immediately after the petitioner alleged to have refused to accept their share of produce from the said respondent. This was not done by the respondent No.7 as he was still under doubt as to whether he will finally be declared as bargadar in the said land or not and as such he did not take the risk even for depositing the same. In our view, the claim of the respondent No.7 is nothing but a speculative one and he filed the said application for recording him as bargadar in respect of the said land in collusion with the vendor of the petitioners. Had the respondent No.7 been really a bargadar under the petitioners' vendors, then they should have disclosed the fact regarding cultivation of the said land by the said bargadar to the petitioners at the time of sale. They never mentioned that the respondent No.7 was their bargadar in the said land in the sale deed executed by them in favour of the petitioner.
The evidence given by the vendors of the petitioners silently in the said proceeding without disclosing the factum of their sale of the said land in favour of the petitioners in the said proceeding, raises serious suspicion in the mind of the Court which the private respondent No.7 failed to dispel. That apart the affidavit filed by the petitioners' vendor before the Tribunal stating therein that the respondent No.7 never cultivated the said land under them and they delivered vacant physical possession of the said land to the petitioners at the time of sale, cannot be lost sight of. Had the respondent No.7 really been a bargadar in respect of the said land under the petitioners' vendor, then why the fact of such cultivation of the said land by the respondent No.7 as bargadar under them was not recorded in the earlier record of rights.
Taking all these facts under consideration we hold that the concerned BL & LRO was not justified in declaring the respondent No.7 as bargadar under the petitioner in the said land. Similarly, we hold that the Appellate Authority and the Tribunal were also not justified in affirming the order of said BL & LRO. The writ petition is thus, allowed.
The order of the BL & LRO which was affirmed in appeal and was re‐ affirmed by the Learned Tribunal for remand, is set aside. It is thus declared that the respondent No. 7 is not the bargadar under the petitioners in respect of the said land. The concerned BL & LRO is directed to correct the record of rights accordingly.
The writ petition is thus, disposed of.
The urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Ishan Chandra Das, J.)