Calcutta High Court (Appellete Side)
Haradhan Das & Anr vs The State Of West Bengal & Ors on 19 August, 2008
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No.26883 (W) of 2006
Haradhan Das & anr.
....Petitioners
Versus
The State of West Bengal & ors.
....Respondents
Mr. Rabi Shankar Chattopadhyay Mr. Subir Bhattacharya ...for the petitioners Mrs. Abha Roy Mrs. Amrita Sinha ...for the State Mr. Piyush Chaturvedi ...for the respondent no.4 Before the Hon'ble Justice Dipankar Datta Heard on : 26.06.2008 Judgment on : 19.08.2008 It is not in dispute that the respondents 4 to 7 are the owners of the disputed lands. It is further undisputed that the competent authority under the West Bengal Land Reforms Act (hereafter the Act) has recorded the names of the petitioners as bargadars in respect of the same. The grievance of the petitioners is that despite they being bargadars, the police authority is not allowing them to cultivate the disputed lands. Averment in this respect has been made in paragraph 12 of the petition.
It is on record that various proceedings have been initiated before separate fora by the respective parties. It would be worthwhile to take note of a proceeding instituted by the private respondents before the West Bengal Land Reforms and Tenancy Tribunal being O.A. No.202 of 2006 wherein the barga recording, as aforesaid, effected in favour of the petitioners is the subject matter of challenge. Parties are ad idem that the barga recording has not been stayed by the learned Tribunal and the issue is pending consideration before it.
The writ petition was admitted on 12.2.07. While calling for affidavits from the respondents, an interim order had been passed operative only against respondent no.4 (since the other private respondents had not been served). The police was directed to ensure that if there be any interference or obstruction at his instance, no breach of peace takes place and that the petitioners are in a position to cultivate the disputed lands without obstruction.
Since the remaining private respondents had been served later on, the petitioners applied for further interim order on similar line as granted earlier to be operative against them. Such order was granted on 12.6.08 and thereafter the writ petition was finally heard on affidavit filed by the respondent no.4.
Despite opportunity granted to the State respondents, no counter affidavit was filed controverting the allegations contained in the writ petition. Respondents 5 to 7 have also not filed any counter affidavit. Their version is thus not available.
Mrs. Roy, learned Counsel for the State expressed her helplessness in the absence of instruction and submitted that the State respondents would be bound by any order to be passed by this Court upon considering the merit of the writ petition.
None appeared for the respondents 5 to 7 to oppose the petition. Mr. Chattopadhyay, learned Counsel appearing for the petitioners submits that the competent authority under the Act having recorded the names of the petitioners as bargadars, they have absolute right to cultivate the disputed lands till such time contra order is passed by the learned Tribunal. However, the police being instigated by the private respondents are not allowing them to cultivate the disputed lands and thus are acting in excess of power and authority conferred on them by the applicable police laws. He accordingly prayed for relief as claimed in the petition.
Mr. Piyush Chaturvedi, learned Counsel representing the respondent on the other hand submitted that the writ petition is not maintainable. According to him, the Act provides a complete code in relation to a dispute between a land owner and a bargadar and that the petitioners ought to seek relief before the appropriate forum by way of execution of the order passed by the competent authority. Since there is nothing on record to show that the petitioners perceive threats to their lives, a writ petition alleging police inaction, according to him, would not be maintainable. In this connection he relied on the decisions of the Apex Court reported in (2007) 6 SCC 171 : Aleque Padamsee vs. Union of India and (2007) 6 SCC 517 : Moran M. Baselios Marthoma Mathews II vs. State of Kerala and of this Court reported in 2006 (2) CLJ 376 : Monoranjan Ghosh vs. State of West Bengal and 1995(1) CHN 224 : CPA Consultancy Services Pvt. Ltd. Employees' Union vs. CPA Consultancy Services Pvt. Ltd. and urged the Court to dismiss the writ petition.
Having heard learned Counsel for the parties, this Court has no hesitation to reject the contention of the learned Counsel appearing for the respondent no.4 that the writ petition should fail owing to availability of alternative remedy.
The Act has consolidated the rights of a bargadar. The term is defined in Section 2(2). Chapter III of the Act gives protection to the bargadars. While Section 15 provides certain safeguards for holdings cultivated by bargadars, Section 17 of the Act lays down the situations when an order for termination of cultivation by a bargadar may be passed and other incidental matters. Section 18 of the Act provides that a dispute between a bargadar and the person whose land he cultivates in relation to matters mentioned in clauses (a), (aa) and (b) thereof shall be decided by such officer or authority as the State Government may appoint. While clauses (a) and (aa) relate to division or delivery of produce, and recovery of produce under Section 16A thereof respectively, clause (b) relates to termination of cultivation by bargadar. Sub-sections (2) to (6) of Section 18 provide for the manner of giving decision on the dispute(s) by the competent authority. Section 19 of the Act provides for the appellate forum against orders passed by the competent authority under Sections 17, 18 and 21(3) of the Act. Section 20 of the Act provides for the procedure to be followed for execution of orders passed by any officer or authority on the disputes referred to it for adjudication.
In the considered view of this Court, the dispute between he petitioners and the land owners is not one which is relatable to matters mentioned in Section 18(1) of the Act. Whether or not the petitioners have been recognised to be bargadars under the Act in accordance with law has to be decided by the Tribunal before whom a proceeding is reportedly pending. Since there is no stay, the recording made by the competent authority shall be binding on the parties and determine their rights and liabilities till such time it is reversed.
Submission of Mr. Chaturvedi that recourse must be taken by the petitioners to Section 20 of the Act appears to be thoroughly misconceived. There is no dispute with regard to division, delivery or recovery of produce, or in relation to termination of cultivation by a bargadar. Here, one party is asserting that he is a bargadar and such assertion is being refuted by the other party. The competent authority having determined that the petitioners are bargadars, execution of an order in this behalf is not comprehended in Section 20 of the Act. The Land Reforms and Tenancy Tribunal Act provides for a forum, viz. the Tribunal to give a decision on whether the order passed by the competent authority is right or wrong. The private respondents have rightly approached the Tribunal. Till such time the order of the competent authority is not disturbed, the petitioners would continue to enjoy the status of bargadars and, therefore, entitled in law to cultivate the disputed lands. Since there is no counter from the State respondents, the allegation regarding police excess as contained in the writ petition must be deemed to have been admitted by them.
That apart, the crux of the dispute raised herein appears to be that the police has acted in excess of powers conferred on it by restraining the petitioners from cultivating the disputed lands. Whether the police has exceeded its powers or not is an issue which cannot be decided by an authority under the Act. It is the Writ Court that may return a finding one way or the other based on the merit of the case. This Court therefore finds little merit in the submissions of Mr. Chaturvedi.
This Court is not oblivious that ordinarily a dispute with regard to enjoyment of right in respect of an immovable property ought not to be canvassed in a writ petition and the civil remedy for enforcement of such right should be resorted to. However, at the same time, a writ petition would be maintainable if the petitioners demonstrate non-discharge of statutory duty by a public authority (see AIR 1993 SC 1225 : Mohan Pandey vs U.R. Rajgharia). There is no reason as to why the ratio shall not be applicable in case of alleged police excess. If the police authorities act malafide or are pro-active in the sense that they act in disregard of authority conferred by the police laws, there is no reason as to why a writ petition in such case would not be maintainable. The objection regarding maintainability of the petition thus stands overruled.
The decision in Aleque Padamsee (supra) has been looked into by this Court. Allegation of the petitioners here is that the police has disallowed them to cultivate the disputed lands. There is no allegation of commission of offence punishable under the penal laws. In such circumstances to relegate the petitioners to the fora available under the Criminal Procedure Code would not arise and the decision in Aleque Padamsee (supra), which is in relation to non- registration of FIR by the police authorities on being approached, would hardly be applicable.
The Apex Court in Moran M. (supra) ruled that the High Court committed manifest error, in exercise of its writ jurisdiction, in going into disputed questions of title when the same were pending consideration before the competent civil courts. In this case although proceedings before the Tribunal is pending, there is no dispute as regards title. Neither have the petitioners disputed the title of the private respondents in respect of the disputed lands nor is the fact that the petitioners are bargadars of such lands disputed at this stage. The cited decision is therefore clearly distinguishable on facts.
In Monoranjan Ghosh (supra), the Court declined to interfere having regard to the nature of pleadings since it was unable to record its satisfaction that any case had been made out by the petitioner for grant of relief. That is not the case here and therefore the said decision would be of no use to the private respondents.
The decision in CPA Consultancy (supra) would also not come to the aid of the private respondents. The Court having regard to the facts and circumstances of the case was satisfied that the order passed by the Magistrate under Section 144 (2) of the Criminal Procedure Code was clearly not in accordance with law. The situation here is entirely different and the ratio of the decision would not be applicable.
For reasons discussed above, the interim orders passed earlier are therefore confirmed. The petitioners, it is held, are entitled to cultivate the disputed lands without any obstruction from the private respondents. The State including the concerned police authorities shall ensure that the private respondents do not obstruct the petitioners in cultivating the disputed lands in any manner whatsoever. However, cultivation of the disputed lands by the petitioners shall necessarily be subject to and abide by the result of O.A. 206 of 2002.
The writ petition stands allowed to the extent mentioned above. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)