AI Structured Summary
Not yet generated for this judgment
Judgment
Sabyasachi Bhattacharyya, J.:
Both the writ petitions are being taken up for hearing together in view of the identity of the issues involved.
The present challenge has been preferred against a common judgment whereby the learned Tribunal affirmed the decision of the Appellate Authority, thereby setting aside orders passed under Section 17 of the West Bengal Land Reforms Act, 1955 terminating the cultivation by the bargadars i.e. the private respondent in each of the matters on the ground that the land was not cultivated by the bargadars personally.
Learned counsel for the petitioners submits that initially an order was obtained under Section 16 of the 1955 Act by the writ petitioners against the private respondent in each of the matters, where the private respondents were directed to deliver their share of produce to the writ petitioners. However, it is submitted that such order was not complied with and execution proceeding has to be initiated in that regard. Subsequently, the writ petitioners took out applications for termination of the private respondent in each of the cases as bargadars on the ground that the possession and right of cultivation in respect of the subject lands were parted by them in favour of third parties; thus, the private respondents no longer cultivated the said lands.
Orders were accordingly passed by the concerned authority terminating the cultivation of the private respondents as bargadars.
Appeals were preferred against the said orders, which were allowed. Being aggrieved thereby, the Tribunal was approached by the writ petitioners by way of two Original Applications, leading to the present impugned common judgment dismissing both the challenges. In the meantime, the writ petitioners had approached the writ court for deleting the names of the private respondents as bargadars, which was disposed of by directing the authorities to consider the representation of the writ petitioners in that regard.
It is contended by learned counsel for the petitioners that the Tribunal as well as the Appellate Authority proceeded on three premises. First, that the proceedings under Section 17 were initiated suo motu. Secondly, no opportunity of hearing was given to the private respondents. Thirdly, there was no execution of the termination orders, thus, the pre-requisite of Section 17 not being satisfied.
Learned counsel places at length the several orders passed by the by the Bhag Chas Officer which indicate that notice was directed to be given to the private respondents. Although one of the private respondents, being Sk. Ali Hossain, did not appear before the authority consistently, his brother Niyamat had been appearing before the Bhag Chas Officer and had been specifically directed to either file a power of attorney on behalf of his brother or to notify the said brother Sk. Ali Hossain to appear personally. Despite such repeated directions, Sk. Ali Hossain never appeared to contest the proceeding. Hence, it is submitted that the ground of lack of opportunity of hearing being given to the private respondents is not supported by the records.
Secondly, the proceedings were not initiated suo motu but on specific applications under Section 17 being filed by the writ petitioners.
Thirdly, the question of execution of the termination orders does not arise, since Section 17 itself contemplates termination of cultivation by bargadars in the event the bargadar is not cultivating the land personally. Thus, the learned Tribunal and the Appellate Authority erred in law in proceeding on such premise.
Learned counsel takes the Court through the orders of the Bhag Chas Officer for the further purpose of showing that initially a field enquiry was held, as per the directive of the Bhag Chas Officer, by the concerned S.D.O. and B.L. & L.R.O. The report filed upon such enquiry being conducted indicated the names of several persons who were in apparently unauthorized occupation of the subject lands. Opportunity was given to those persons to appear before the Bhag Chas Officer, upon which their deposition was taken. At least one of those persons categorically deposed that there was an arrangement entered into upon consideration between the said person and the private respondents for cultivating the lands, which had continued for more than two years. Relying on the same, the Bhag Chas Officer passed an order under Section 17 of the 1955 Act.
It is submitted that much later, the Tribunal proceeded on the premise of subsequent reports apparently, filed by the police authorities as well as the then B.L. & L.R.O., which indicated that the private respondents were forcibly evicted with the help of police and paramilitary forces by the petitioners, taking advantage of their “good office”.
However, it also came out in evidence as recorded by the Tribunal that the petitioner conducting the matter was an employee of the Post and Telegraph Department; thus, he could not have anything to do with any paramilitary force. Moreover, such contention was never raised by the private respondents before the Bhag Chas Officer at the relevant point of time.
Learned counsel places reliance on an unreported judgment of a coordinate Bench of this Court dated April 3, 2025, passed in WPLRT 39 of 2024, where it was held that non-cultivation of the land for two consecutive years by itself is a good ground for eviction of a bargadar under the provisions of Section 17 of the 1955 Act. It was further held that the quantum fixed in the bhag chas case found to be due and payable by the private respondents to the writ petitioner was not paid by the private respondents and non-payment of the share of crop is another ground for eviction of the bargadar.
Learned Senior Standing Counsel appearing for the State points out that before the Appellate Authority and the Tribunal, sufficient materials were produced by way of reports authored by the B.L. & L.R.O. as well as the police authorities to indicate that there was foul play on the part of the writ petitioners in forcibly evicting the private respondents, who were existing bargadars at the relevant point of time, with the help of police and paramilitary forces. It is submitted that such reports ought not to be brushed aside.
Furthermore, the learned Tribunal came to a conclusion on the basis of materials before it that the writ petitioner had concocted a story about the bargadars/private respondents having parted with the property in favour of third parties, by implanting a witness with whom the writ petitioners had an arrangement to sell the subject lands. It is thus submitted that at best, the matter ought to be remanded to the Bhag Chas Officer to consider such subsequent developments and to come to a reasoned conclusion in the light thereof.
Learned Senior Standing Counsel takes the Court at length through the observations of the learned Tribunal in support of his contentions.
It is further submitted by learned Senior Standing Counsel that the ground of non-payment of share of crops cannot stand any more, since it was recorded by the Appellate Authority that the existence of several receipts were admitted by the person conducting the litigation on was sufficient proof of payment of their share of the produce by the private respondents/bargadars.
Upon a careful perusal of the materials before us, we find that the ground of lack of opportunity being given to the private respondents by the Bhag Chas Officer cannot be sustained. From at least seven to eight orders passed by the Bhag Chas Officer, we find that several directions were given to serve notice on the non-appearing private respondent Sk. Ali Hossain. At the same time, his brother Niyamat, who was all along contesting the proceeding, was present and contested the proceeding tooth and nail.
We do not find any objection on the part of the private respondents to the fact that a direction was issued by the Bhag Chas Officer on Niyamat to furnish a power of attorney from his brother Sk. Ali Hossain on the next occasion and/or to ask Sk. Ali Hossain to be personally present. Despite such repeated opportunities, Sk. Ali Hossain, one of the private respondents, did not appear personally. However, his interest was sufficiently represented by Niyamat, his brother, who is the other private respondent and stands on similar footing as Sk. Ali Hussain. It is nobody’s case that the relation between Niyamat and Sk. Ali Hussain, being brothers, was ever strained or that they had different interests in the litigation.
More importantly, the question of the conducting writ petitioner using his office to evict the private respondent with the help of police and paramilitary forces can easily be ruled out in view of the finding of the learned Tribunal itself that the said writ petitioner was an employee of the Post and Telegraph Department. No connection whatsoever between the writ petitioners and the paramilitary forces or the police has been established before any of the forums below.
Secondly, it is a complete third case made out for the first time before the Appellate Authority and the Tribunal. Despite several opportunities and several hearings, such point was never urged by Niyamat or the absentee private respondent Sk. Ali Hussain before the Bhag Chas Officer. Not a whisper of any forcible eviction by the writ petitioners with the help of police and paramilitary forces was ever raised before the Bhag Chas Officer throughout the proceedings, which went on for a considerable period of time, involving several orders. Thus, the private respondents cannot be permitted to raise a third case on such count subsequently.
More importantly, it could not be a case that the writ petitioners “implanted” witnesses to substantiate their case. We find from the orders of the Bhag Chas Officer that an independent enquiry was directed to be made on the field by the S.D.O. and the B.L. & L.R.O. upon which a report in that regard was filed after such enquiry, from which the specific names of the persons who were in unauthorized occupation of the subject lands were disclosed. Thus, it is not the writ petitioners who had produced the transferees of the private respondents as witnesses, but the names of such transferees came out from an independent field inquiry report authored by the then S.D.O. and B.L. & L.R.O. There is not an iota of allegation against the integrity of the S.D.O. and the B.L. & L.R.O. concerned. The Bhag Chas Officer even went to the extent of directing a notice of such enquiry to be given to Sk. Ali Hussain whereas Niyamat, the other private respondent, was very well in the know of the said order.
It is only on the premise of such report that those third parties/unauthorised occupants were also directed to appear before the Bhag Chas Officer by the Bhag Chas Officer himself, upon which some of those persons physically appeared. Thereafter, at least one of them gave deposition before the Bhag Chas Officer, as recorded in the orders of the Bhag Chas Officer, and categorically admitted a financial arrangement between the private respondents and the said person regarding the subject properties, whereby the private respondents permitted those third parties to cultivate on the lands, thereby ceasing to cultivate the lands themselves.
Throughout the proceedings, the petitioners had nothing to do with the unauthorised occupants and did not bring the witnesses of their own, but the witnesses were named in a report authored by independent authorities and were also directed to appear before the Bhag Chas Officer. They did appear and depose before the Bhag Chas Officer, which was never rebutted by any cogent evidence by the private respondents. Thus, as on the date of passing of the orders under Section 17 by the Bhag Chas Officer, all evidence unerringly pointed to the fact that the private respondents had parted with the cultivation of the subject lands in favour of third parties in an unauthorised manner and therefore came within the mischief of Section 17(1)(b) of the 1955 Act.
Another important aspect of the matter is that the learned Tribunal relied on certain purported reports filed post facto as an afterthought. Such reports were apparently of the year 1996, that is, seven years after the order of the Bhag Chas Officer. It defies logic as to how, seven years after the alleged incident, the police or the then B.L. & L.R.O. could become aware of the fact that there was forcible eviction with the help of police and paramilitary forces seven years back.
Evidently, such reports are not corroborated by the contemporaneous events which happened at the time of passing of the order in the year 1989 by the Bhag Chas Officer and/or even the stand taken by the private respondents at that relevant juncture.
Thus, the orders of the Appellate Authority and the Tribunal are palpably perverse, being based not on any cogent evidence but on conjecture and surmise not borne out by any contemporaneous material which was before the Bhag Chas Officer at the time of passing of the orders under Section 17 of the 1955 Act. Subsequent reports, uncorroborated by any real evidence of forcible dispossession of the private respondents, without even a single application by any of the private respondents under Section 19B of the 1955 Act alleging dispossession and seeking restoration of possession at any point of time, cannot be the substitute of concrete evidence, on the strength of which the Bhag Chas Officer passed the orders under Section 17. Such post facto frivolous reports are not even worth the paper on which they were written and, as such, could not be taken into consideration subsequently to vitiate retrospectively orders passed seven years back by the Bhag Chas Officer. Thus, the entire premise of the impugned judgment and those of the Appellate Authority are based on loose sand.
In such view of the matter, WPLRT 133 of 2013 and WPLRT 116 of 2022 are allowed on contest, thereby setting aside the impugned common judgment dated January 4, 2013 passed by the Fourth Bench of the West Bengal Land Reforms and Tenancy Tribunal in TA No. 23 of 2002 and TA No. 24 of 2002 (LRTT) as well as the common judgment of the Appellate Authority which was affirmed by the Tribunal.
Accordingly, the orders passed under Section 17 of the 1955 Act by the Bhag Chas Officer, terminating the cultivation by the private respondents in the capacity of bargadars in both the matters, are upheld.
Liberty is given to the writ petitioners to take appropriate steps for correction of the Records of Rights in consonance with the orders of the Bhag Chas Officer terminating the cultivation of the private respondents as bargadars. If such steps are taken, the concerned authorities shall decide the same in accordance with law by passing reasoned orders.
There will be no order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be supplied to the parties upon compliance of requisite formalities.