Judgment:
Ashim Kumar Banerjee, J.
1. One Indra Bhusan Chowdhury was the owner of the subject land. After his death the land devolved upon the heirs of Indra Bhusan Chowdhury, including Tapesh Prasad Chowdhury. On a family arrangement Tapesh became the owner of 1.99 acres of land being the subject matter of the writ petition. The land being Dag No. 352/917 was conveyed in favour of Tapesh by the other heirs pursuant to Registered Deed of Exchange executed on May 25, 1995. Dag No. 354 was conveyed by a Registered Deed of Sale in favour of Tapesh on May 30, 1991 whereas Dag No. 366 was conveyed in his favour by Registered Deed of Sale dated June 1, 1991. The private respondents claimed that their father Nakul Chandra Das was a Bargadar under Indra Bhusan Chowdhury. After the death of Indra Bhusan, sons of Nakul being the respondent Nos. 6 to 9 were in possession of the land in question as Bargadar. There was no dispute between the owner and the Bargadar at any point of time until 1998. However, on perusal of the records, it appears that name of Nakul was never recorded as Bargadar. In January 1998 a series of complaints were lodged by the private respondents with the local police station from time to time to the effect that Tapesh had forcibly harvested the paddy.
2. The private respondents approached the authority for recording their names as Bargadar. The B.L. & L.R.O. issued a notice dated February 16, 1998 to Tapesh asking him to be present along with records in regard to the prayer of the private respondents for recording their names as Bargadar. On March 20, 1998 Tapesh made a representation to the Revenue Inspector to shift the date of hearing. Tapesh filed a writ petition being W.P. No. 8257 (W) of 1998 which was disposed of by the Learned single Judge by judgement and order dated June 9, 1998 directing the authority to dispose of his representation to be submitted by him. The order of the learned single Judge was communicated to the authority on June 11, 1998. The Revenue Officer issued a notice of hearing. Tapesh filed a written objection to the effect that the names of the private respondents had been recorded without following the direction of the learned single Judge. Tapesh filed second writ petition for quashing the order passed in Barga Case No. 3 of 1998. The second writ petition being W.P. No. 12792 (W) of 1998 was transferred to the Land Tribunal and renumbered as T.A. 43 of 2000. During the pendancy of the said writ petition before the Tribunal, Tapesh approached the learned Sub. Divisional Executive Magistrate, Barasat under Section 144(2) of the Criminal Procedure Code. The learned Magistrate directed the Revenue Officer to submit an enquiry report. Revenue Inspector accordingly conducted an enquiry. The Inspector reported that the private respondents cultivated Aman Paddy in 1998 in the land in question which was harvested by Tapesh forcibly. The officer, however, observed that the private respondents did not approach any Court of Law contemporaneously. The Tribunal disposed of the matter vide order dated February 19, 2002 inter alia granting liberty to Tapesh to prefer an appeal from the order of the B. L. & L.R.O. passed in Barga Case No. 3 of 1998. In the mean time, at the instance of the private respondents the authority initiated Bhag Chas Case Nos. 22 of 2002, 23 of 2002, 24 of 2002, 25 of 2002 and 26 of 2002. The private respondents also applied under Section 17(1)(C) of the West Bengal Land Reforms Act, 1955 for deposit of Bhag Chas produce. The private respondents also initiated proceedings under Section 19B of the said Act of 1955 on April 26, 2002, inter alia, praying for steps to be taken for restoration of their right to cultivate the land as Bargadar. It was alleged in the said petition that Tapesh had been resisting them forcibly from cultivating the said land in question. The appellate authority disposed of the appeal on November 27, 2003 by holding that the private respondents were in possession of the said land prior to 1999 as per the enquiry report. The appeal was dismissed. Tapesh approached the Land Tribunal. The Land Tribunal declined to interfere with the determination made by the Revenue Officer so affirmed by the appellate authority by their order passed in Appeal No. 38 of 2002.
3. Being aggrieved Tapesh approached this Court by filing the above writ petition which was heard by us on the above mentioned date after completion of affidavits.
4. Mr. Jiban Ratan Chatterjee, learned Senior Advocate appearing in support of the application contended as follows:
i) The private respondents alleged that their father was a Bargadar under Indra Bhusan whereas no such recording was ever done as would appear from the records.
ii) Assuming Nakul was the Bargadar in respect of the land in question, after his death, his heirs were obliged to nominate one of them and inform the authority accordingly for mutating the nominee under Section 15A of the said Act of 1955. In absence of such nomination either by consent of all the heirs or by the Revenue Authority in case of disagreement, the alleged arrangement of Barga stood extinguished on the death of Nakul and the land became free of Barga.
iii) The Tribunal erred in holding that since Tapesh was not a resident of the locality, he could not cultivate the land personally or through engagement of daily labours.
iv) Assuming the private respondents had cultivated the land in absence of tender of Bhag Chas produce to the extent of owner's share under Section 17(1)(C) such arrangements stood terminated.
v) On the own showing of the private respondents it appears that they had been dispossessed in 1998. Unless they were restored in possession, they could not be mutated in place of their predecessor, hence, the order of recording their names subsequent to their dispossession was bad in law.
5. In support of his contentions Mr. Chatterjee relied on the following decisions:
1. 2000 2 CHC 386 ( Kartick Bagdi and Ors. v. Sri Bidyut Kumar Ray and Ors.)
2. : AIR1997Cal151 (Smt. Sari Mahanti v. Ghauiram Mahata)
3. 90 CW 467 (Fazilatnnessa Bewa and Ors. v. Mezahar Sheik and Ors.)
4. Calcutta Weekly Notes Volume 88, Page 304 ( Hirendra Nath Mondal v. Rajendra Nath Satpathi and Ors.)
6. Opposing the writ petition Mr. Sitaram Bhattacharjee appearing for the private respondents contended as follows:
i) Predecessor of the petitioner allowed the predecessor of the private respondents to cultivate the land as a Bargadar and there had been no dispute with regard to such arrangement. Hence, the parties did not feel it necessary to have proper recording of the name. However, when Tapesh, after becoming the owner of the land in question, forcibly harvested the Aman Paddy in January 1998, the private respondents applied for their mutation. Such mutation was allowed by the authority on the basis of the enquiry report.
ii) Contemporaneous complaints were made from time to time with the local police station. However, the police authority failed to take any steps for redressal of the grievance of the private respondents. Hence, they filed appropriate application under Section 19B for removing the obstruction made by Tapesh in cultivating the land in question.
iii) The Revenue Authority, at all stages, found the private respondents in possession of the land in question as Bargadar. The Land Tribunal, upon considering a series of orders as well as the enquiry report came to a finding that no interference was called for. Such finding of the Land Tribunal could not be upset by this Court.
7. Mr. Ziaul Islam, learned Counsel appearing for the State being led by Mr. A. N. Banerjee, while opposing the application took us to the relevant provisions of the said Act of 1955 and contended that the petitioner could not have claimed to have cultivated the land personally as he had admittedly been residing at a distant place being an employee of a private organization. Hence, the authority was right in recording the name of the private respondents relying on the enquiry report.
8. To deal with the controversy let us first to understand the law on the subject. Under the definition clause contemplated in Section 2 of the said Act of 1955 we find that 'Bargadar' means 'person who cultivates the land of another person on condition of delivering a share of the produce to the owner' and does not include a 'person related to the owner'. Under Section 2(8) 'personal cultivation' means 'cultivation by a person of his own land on his own account either by his own labour or by any member of his family or by servants or labourers on payment of wages either in cash or in kind and not being as a share of the produce'. Proviso to the said Section stipulates that such person or member of his family should reside for greater part of the year in the locality where the land is situated and the principal source of his income is produce of such land. Mr. Chatterjee wanted to give an interpretation of this provision to the extent that 'person' stipulated in proviso would mean the 'labourer' and not the 'owner'. On a composite meaning of the said provision we are unable to accept such contention. The word 'person' was used in the said provision in its earlier part as owner and no one else. The labourers were described as servants or labourers on wages. Hence, there could be no ambiguity in coming to a conclusion that the word 'person' stipulated in the proviso would mean the owner and none else. For our benefit let Section 2(8) be quoted here under:
(8) 'Personal cultivation' means cultivation by a person of his own land on his own account -
(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind not being as a share of the produce or both:
10 [Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is [produce of,] such land.
Explanation - The term 'family' shall have the same meaning as in Clause (c) of Section 14K];
9. The land is situated in 24 Parganas (North) whereas Tapesh was a resident of 24 Parganas (South). He had been working for Bata India Limited at Maheshtala in the said District. His present address would appear from the Cause Title itself. This would automatically deny his claim that he had been a resident of the locality where the land was situated. Hence Tapesh was not entitled to claim the benefit of 'personal cultivation' under Section 2(8).
10. Lot of emphasis was put by Mr. Chatterjee on Section 15A. 15A starts with of a non-obstanti clause to the effect that when a Bargadar dies in harness such cultivation may be continued by his lawful heirs. It also provides that when there are more than one lawful heirs, the heirs may nominate one of them to be mutated as Bargadar. In case of disagreement the Revenue Authority would determine under Section 18(1) who could be the fittest person to be substituted in the place of the deceased Bargadar as his nominee. Mr. Chatterjee claimed since there was no such contemporaneous application on the death of Nakul under Section 15A, the arrangement stood terminated on the death of Nakul. We are unable to accept such contention on reading the Proviso to Section 15A where a duty is cast upon the authority to nominate one of the lawful heirs who is in a position to cultivate the land personally to continue cultivation. In this regard we may take the help of Section 17. Section 17(1), inter alia provides that no person shall be entitled to terminate the cultivation of his land by a Bargadar except in execution of an order passed by the appropriate authority. Such order could only be passed in any of the following eventualities:
i) Bargadar has without reasonable cause failed to cultivate the land or used it for other purpose.
ii) The Bargadar was not cultivating the land personally.
iii) The Bargadar failed to tender deposit of the produce as required under Section 16.
11. In the instant case it was the definite case of the private respondents that the entire paddy was forcefully harvested by the owner being the petitioner herein. Such allegation was proved to be correct on an enquiry made by the appropriate authority in terms of the direction of the learned Magistrate. Hence, the owner had already got not only his share of produce but also the share belonging to Bargadar which he was obliged to return to the Bargadar. Hence, the contention that since they did not deposit the Bhag Chas Produce they were not entitled to be substituted, was without any force of law. We, however, find that the private respondents already applied for deposit of produce before the authority.
12. The problem can be viewed from another angle. The petitioner claimed that he was the owner of the land. It was always cultivated by him as he had been ordinarily residing at the locality after his retirement from Bata India Limited. If that be the situation the petitioner could have tendered evidence to support his contention by producing his voter identity card or ration card or any other documents of the like. He miserably failed to do so. In such view we can safely conclude that he was not a resident of the said locality. Moreover, he was not dependent upon the income out of such cultivation which would entitle him to cultivate his land personally. If we have to accept the contention of Mr. Chatterjee on the interpretation of Section 2(8) and Section 15A we have to hold that being an employee of a private organization like Bata India Limited, he was entitled to cultivate the land personally being a raiyat under the State. We are afraid, that was not the policy of the Government for which the said Act of 1955 was enacted. The land admittedly belongs to the State. The petitioner being a raiyat had the permissive right to own the said land in question subject to the conditions stipulated in the said Act of 1955. The said Act of 1955 does not permit a person to own an agricultural land without harvesting it personally by way of personal cultivation within the meaning of Section 2(8) of the said Act of 1955 or through a Bargadar under the arrangement in terms of the other provisions of the said Act of 1955. The State is entitled to call back the agricultural land in question if it is not cultivated. Cultivation is only possible either personally or through Bargadar. We have already held that the petitioner was not entitled to cultivate the land personally. Hence, he is not entitled to resist Barga recording. The private respondents claimed that they were cultivating the land as Bargadar. The Revenue Officers found on enquiry that their claims were justified and as such mutated their name as Bargadar. The Tribunal declined to interfere with such recording. We also do not find any scope of interference.
13. The writ petition fails and is, hereby, dismissed.
14. There would be no order as to costs.
15. Urgent Xerox certified copy of this order, if applied for, may be given to the parties.