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2010 Supreme(Cal) 674
IN THE HIGH COURT OF CALCUTTA
PRATAP KUMAR RAY & HARISH TANDON, JJ.
Sibani Giri
Vs.
State of West Bengal
W.P.L.R.T. 44 of 2009
Decided on: 23.06.2010
Advocate Appeared:
For the petitioner: Mr. Biswajit Sahu
For the private respondent no.4.: Mr. Shyama Prasad Purkait
For the State: Mr. Ashok Sarkar Mr. Subrata Banerjee
The right to cultivate as a bargadar under the West Bengal Land Reforms and Tenancy Act, 1955, is extinguished upon the purchase of the land by the recorded bargadar, and a new barga right can only be created by the new owner on the condition of delivering a share of the produce.
Headnote:
WEST BENGAL LAND REFORMS AND TENANCY ACT, 1955 - SECTION 17, 21D, 54 - BARGADAR - RIGHT TO CULTIVATE - TRANSFER OF LAND - RELATIONSHIP BETWEEN BARGADAR AND RAIYAT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The petitioner challenged the orders of the Revenue Officer, Appellate Authority, and West Bengal Land Reforms and Tenancy Tribunal, which recorded the respondent as a bargadar of the subject land. The petitioner's husband, the recorded bargadar, purchased the land from the owner and subsequently sold it to the petitioner. The respondent, the wife of the recorded bargadar, claimed barga rights based on her cultivation of the land during her husband's ownership.
Finding of the Court:
The court held that the respondent's cultivation of the land during her husband's ownership was presumed to be on his behalf and did not create an independent barga right for her. The purchase of the land by the petitioner extinguished the barga right of the recorded bargadar, and the subsequent sale to the petitioner did not revive the barga right. The court further held that the Revenue Officer, Appellate Authority, and Tribunal failed to consider the essential condition of determining whether the respondent was a bargadar under the new owner, namely, whether she was engaged on the condition of delivering a share of the produce.
Issues: 1. Whether the respondent's cultivation of the land during her husband's ownership created an independent barga right for her. 2. Whether the purchase of the land by the petitioner extinguished the barga right of the recorded bargadar. 3. Whether the subsequent sale to the petitioner revived the barga right. 4. Whether the Revenue Officer, Appellate Authority, and Tribunal considered the essential condition of determining whether the respondent was a bargadar under the new owner.
Ratio Decidendi: 1. Cultivation of land by a bargadar with the help of family members is deemed to be personal cultivation, and no independent right accrues to the family members. (Section 17(1)(b), second explanation, West Bengal Land Reforms and Tenancy Act, 1955) 2. The purchase of land by the recorded bargadar extinguishes the barga right, and the land becomes free from any encumbrances, including the barga right. 3. To establish a barga right under a new owner, the person claiming to be a bargadar must prove that they were engaged on the condition of delivering a share of the produce. 4. The Revenue Officer, Appellate Authority, and Tribunal failed to consider the essential condition of determining whether the respondent was a bargadar under the new owner, namely, whether she was engaged on the condition of delivering a share of the produce.
Final Decision: The court set aside and quashed the orders of the Revenue Officer, Appellate Authority, and Tribunal. The matter was remanded back to the Revenue Officer to pass a reasoned order on the pending applications under Section 16(4) and 21D of the West Bengal Land Reforms and Tenancy Act, 1955, after hearing the respective parties. The recording of record of rights showing the respondent as a bargadar was also set aside.
Pratap Kumar Ray, J.
1. Heard the learned Advocates appearing for the parties.
2. Assailing the order dated 17th December, 2008 passed by West Bengal Land Reforms and Tenancy Tribunal, in O.A. No. 3725 of 2005 (LRTT), this writ application under Article 226 of the Constitution of India has been filed.
3. The impugned order reads such:-
“The instant O.A. No. 3527 of 2005 is directed against order dt. 29.06.05 passed by the ADM and DL & LRO at Alipore Dist. 24 Parganas (South) in LR. Appeal no. 71 of 2001 affirming the order dt. 21.07.08 passed by the Revenue Officer, Sagar in Bhag Chas case no. 126 of 1998 u/s 21D read with sec. 17 of the WBLR Act adjudging the respondent no. 4 namely Smt. Bhagabati Bar, as the bargadar in respect of 1.53 acres of land appertaining to plot no. 1772 in mouza Sapkhali hereafter referred to as the subject land.
Fact of the case:
The subject plot i.e. plot no. 1772 measuring 1.53 acres of mouza Sapkhali and other plot no. 2129/2567 measuring 18 acres of mouza Kechuberia originally belonged to Gobardhan Dingal, Sristidhar Dingal and Bipin Behari Dingal under whom one Girish Ch. Bar and after his death, his son Beni Madhab Bar was the recorded bargadar in respect of the aforesaid two plots of land. However, said Beni Madhab Bar purchased both the suit plots by the registered deed no.3368 dt. 14.05.97. The respondent no. 3 i.e. BL & LRO, Chaktuldubi, P.S. Sagar issued a notice for hearing in respect of an application filed by the respondent no.4 (Smt. Bhagabati Bar) for recording her name as bargadar in respect of the subject plot. It appears that Beni Madhab Bar who was the recorded owner and also the husband of respondent no.4. Bhagabati Bar though purchased the subject land by the registered dt. 14.05.97, against sold the subject land being dag no. 1772 measuring 1.53 decimals of mouza Sapkhali on the same day of purchase to the applicant herein namely Smt. Sibani Giri by deed no. 3369 of 1997 said to be in order to meet his loan and to purchase some other land in mouza Kachuberia and said to have purchased the land in the name of his son and son’s wife near his dwelling house. The applicant received the notice dt. 18.07.98 for hearing in case no.126/Barga/98 on the basis of the application of the respondent no. 4 u/s 21D of the WBLR Act.
It is stated that in the said proceeding no. 126/Barga/98 hearing of which was made on 21.07.98, the recorded bargadar Beni Madhab Bar was not a party and said Beni Madhab Bar made a representation dt. 10.07.98 before the said respondent no. 2 laying his claim as a recorded bargadar of the subject land and his afterwards purchase of the same and again sale of the same to the favour of the applicant for the latter’s purchase of other land near his dwelling house in the name of his relatives.
The applicant appeared in the said hearing and submitted that Beni Madhab Bar was the recorded bargadar of both subject plot no.1772 and other plot no. 2129/2567 measuring 1.53 dec. and .18 dec. respectively and remained in cultivating possession by delivery of share thereof. However, said Beni Madhab Bar ceased to be bargadar when he purchased the aforesaid plot of land and as such respondent no. 4 i.e. wife of said Beni Madhab Bar cannot be the bargadar in the subject land. Furthermore, Beni Madhab Bar after purchased sold the subject plot no. 1772 measuring 1.53 dec. of mouza Sapkhali to the applicant when there was to be no bargadar.
It is alleged that the respondent no. 2 recorded the name of the respondent no. 4 as bargadar without considering the representation made by her husband namely Beni Madhab Bar and also without considering the submissions of the applicant. It is further alleged that the order recording the name of the respondent no. 4 as bargadar is without any reason and observation when respondent no. 4 was inducted as a bargadar.
Being aggrieved by and dissatisfied with the barga recording of the name of the respondent no. 4, the applicant herein pref
