A barga right is an 'incumbrance' within the meaning of Section 2(h) of the West Bengal Estates Acquisition Act, 1953, and therefore, the vesting of the land is free from this 'incumbrance'.

Sarkar Prasad Mitra, C.J.

This Rule has been referred to a larger Bench by Mr. Justice M.N. Roy on the 5th April, 1977.

2. The petitioner in an application under Article 226 of the Constitution has sought to impeach the attempt of the respondent, Junior Land Reforms Officer, Kukrahati, Midnapur, to distribute 37 acres of land out of lands held by the petitioner to other settlees who are respondents nos. 4 and 5.

3. The petitioner's case is that at all material times he was, and still is, a bargadar in respect of 74 acres of land, situate at Mouza Iswardaha. The petitioner and his brother have cultivated the said land in equal half share under the erstwhile landlord, Bhabani Charan Mitra. The landlord, admittedly, held lands above the ceiling fixed by the West Bengal Estates Acquisition Act, 1953.

4. The respondents in their affidavits-in-opposition have admitted that the petitioner was a bargadar. They have also admitted that the petitioner was recorded as a bargadar before the vesting of the land. They have admitted further that the petitioner deposited necessary fees, like others, for obtaining licence in respect of the land but the fees were received subject to the approval of the authurities concerned.

5. The petitioner has stated that he has pail rents upto 1968 for which the necessary dakhilas have been granted. The petitioner's allegation is that on the 8th Shravan, 1371 B.S., while he was cultivating the land, the respondents nos. 4 and 5 entered upon the land and obstructed his cultivation. The respondents Nos. 4 and 5 intimated the petitioner that they had obtained necessary licences from the appropriate authorities for cultivating the land.

6. The petitioner thereupon went to the office of the Junior Land Reforms Officer and came to know that after the vesting, agricultural lands, mentioned in the petition, have been distributed to the respondents nos. 4 and 5. According to the petitioner, such settlement or distribution is wholly unauthorised, irregular and illegal and is without jurisdiction.

7. The point that arises for our consideration is, whether a barga right is an 'incumbrance' within the meaning of S. 2(h) of the West Bengal Estates Acquisition Act, 1953. If we hold that it is an 'incumbrance', then the vesting was free from this 'incumbrance' and the State of West Bengal was at liberty to distribute the land in question to other cultivators.

8. Various decisions were relied on before Mr. Justice M.N. Roy. There is an unreported judgment of Justice Mr. P.K. Banerjee in C.R. 601(W) of 1973 (Mohd. Kalu Molla v. State of West Bengal) delivered on the 10th March, 1975. The petitioner in that case was in possession of lands for which he held rent receipts. An attempt was made to evict the petitioner. A Rule was obtained. Mr. Justice Banerjee held that the Rule must succeed to the extent that the petitioner's land could not be setteled to any other person until the petitioner was evicted in due course of law or by any other legislative process.

9. There is another unreported decision of Mr. Justice Amiya Kumar Mookerji in C.R. 2183(W) of 1972 (Bhusan Chandra Giri v. State of West Bengal & ors). Here the petitioner's case was that he was a bargadar and his name had been recorded as such in the record of rights but the respondents were trying to evict him without any legal process. Learned advocate for the petitioner contended that barga right was not 'incumbrance'. Considering the facts and circumstances of the case, Mr. Justice Amiya Kumar Mookerji directed the respondents not to evict the petitioner without taking recourse to law.

10. In Sasadhar Gayan & ors. v. Junior Land Reforms Officer, Casaba & ors. reported in 1974(1) CHN 44, Mr. Justice M.M. Dutt had to deal with the points raised before us more specifically. His Lordship has held that the interests of bargadars are 'incumbrances' within the meaning of the term as defined in S. 2(h) of the West Bengal Estates Acquisition Act, 1953, and along with the vestin