Sri Shyamal Kumar Chatterjee & Ors. vs State Of West Bengal & Ors.

Sabyasachi Bhattacharyya, J.:-

The present writ petition has been preferred against an order whereby the West Bengal Land Reforms and Tenancy Tribunal affirmed orders passed by the Appellate Authority as well as the Bhag Chas Officer directing restoration of possession in favour of the private respondent on the premise that the private respondent is a Bargadar in respect of the subject premises.

Learned counsel for the writ petitioners argues that the foundational fact of delivery of shares of the produce, which is required to be satisfied for the purpose of adjudicating a person to be Bargadar, even apart from the cultivation of the land-in-question, was not satisfied in the present case.

Although the writ petitioners raised the question before all the authorities, the Bhag Chas Officer as well as the Appellate Authority proceeded on the premise that in view of the writ petitioners having raised an objection regarding limitation in filing the application under Section 19B of the West Bengal Land Reforms Act, 1955 (for short “the 1955 Act”), the private respondent was admitted to be a Bargadar.

It is submitted that such premise is contrary to law and perverse.

The learned Tribunal, in the impugned judgment, recorded that a “stock plea” that the Bargadar could not produce any receipt for delivering the share of the produce was raised by the writ petitioners, but failed to adjudicate such objection on merits.

In the absence of such ingredient being satisfied by production of receipts of delivery of share of the produce, it is contended that the learned Tribunal and all the forums below erred in law in adjudicating the private respondent to be a Bargadar.

In support of such contention, learned counsel cites a coordinate Bench judgment of this Court in the matter of Shambhu Nath Ghosh and others vs. the State of West Bengal and others reported at (2014) 4 CHN 146 where it was reiterated that the person claiming to be Bargadar must prove, inter alia, that he shares crops with the land owner, in the proportion provided in the Act, and such factum of sharing of crops must be established by documentary evidence, namely receipt.

The coordinate Bench also considered the provisions of law in case of refusal to accept the share crops which were also to be resorted to by the alleged Bargadar.

Secondly, it is argued that the initial application for recording of the name of the private respondent as Bargadar was filed on May 19, 1992.

Thereafter, alleging dispossession from the subject land and termination of his cultivation on August 23, 1992, the private respondent made another representation before the Bhag Chas Officer on September 8, 1992, alleging such dispossession but seeking recording of his name as a Bargadar simpliciter.

Conspicuously, however, no prayer was made for setting aside such termination and/or recovery of possession, which is an essential ingredient of Section 19B of the 1955 Act.

It is argued that the private respondent is supposed to be aware of the provisions of law since on April 7, 1997, a separate application was made for restoration of possession by the private respondent himself before the appropriate authority, although it was palpably time-barred.

All the forums considered that the pendency of a civil suit at the behest of the writ petitioners in the interregnum was a deterrent to the Bhag Chas Officer deciding such issue and, as such, held that there was no bar of limitation applicable to the application of the private respondent.

However, it is argued that in the absence of any specific prayer for recovery, the application dated September 8, 1992 could not be deemed to be an application under Section 19B of the 1955 Act.

It is further pointed out that although the authorities proceeded on the premise that on the basis of previous documents, it was established that the private respondent is a Bargadar, apparently such “previous records” was an enquiry report which cannot be construed to be a substitute of a share receipt, as reiterated in Shambhu Nath Ghosh (supra).

Learned counsel further points out that the judgment of the coordinate Bench in the said matter was challenged before the Hon’ble Supreme Court. Vide order dated February 24, 2020, the said Special Leave Petition was dismissed on merits by the Hon’ble Supreme Court, by observing that it did not find any ground to interfere with the impugned order of the High Court.

Thus, it is argued that the impugned judgment is vitiated by contravention of law.

Learned Senior Standing Counsel, appearing for the State, submits that the question of limitation does not arise in the present case, particularly taking into account the backdrop that the private respondent is an uneducated cultivator and is not supposed to know the nitty-gritties of law.

It is submitted that by making a substantive representation before the Bhag Chas Officer on September 8, 1992, categorically alleging termination of cultivation by the writ petitioners and seeking recording of his name as a Bargadar, the private respondent sufficiently satisfied the requirements of Section 19B of the 1955 Act.

It is submitted that in view of the private respondent coming from a marginalized section of the Society, the application for recording his name as Bargadar, simultaneously alleging dispossession, was sufficient to set the ball rolling under Section 19B of the 1955 Act.

Such application was filed well within the limitation period.

Alternatively, it is argued that, although under possibly an erroneous notion, the Bhag Chas officer, at the first instance, waited for the disposal of a civil suit filed by the writ petitioners, after culmination of which the final order was passed.

Thus, the private respondent was not at fault in any manner in the said application being taken up after the stipulated limitation period.

Proceeding to the merits of the matter, learned Senior Standing Counsel places reliance on different orders passed by the Bhag Chas Officer as well as the Appellate Authority in the earlier rounds of litigation, where it was categorically recorded that on the basis of substantive documents, it was found that the private respondent is a Bargadar in respect of the subject premises.

It is further argued that the objection as to absence of any share receipt was never raised before any forum by the writ petitioners. Accordingly, the said objection cannot be raised for the first time in the present case.

In any event, the order of the Tribunal and/or those of the Appellate Authority and the Bhag Chas Officer cannot be said to be perverse, inasmuch as the documents which were before the said authorities were fully considered.

Before proceeding to adjudicate the matter, it is required to be noted that the term “Bargadar” has been specifically defined in the 1955 Act. Thus, there cannot be any superimposition of other perceptions deviating from such specific definition in construing such expression.

Section 2(2) of the 1955 Act categorically provides that “Bargadar” means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes a person who under the system generally known as kisani or by any other description cultivates the land of another person on condition of receiving a share of the produce of such land from that person.

Thus, two essential ingredients are involved in labelling a person as a Bargadar:

ii) Such cultivation should be on condition of payment of a share of the produce of such land to the land owner.

Thus, the condition of delivering a share of the produce of such land by the Bargadar to the person under whom he is cultivating is a sine qua non for being called a Bargadar.

The said proposition was reiterated by a coordinate Bench in Shambhu Nath Ghosh (supra), where the Court held that the field enquiry which was relied upon by the concerned BL & LRO in the said case while passing the order prior to remand was a “worse piece of evidence inasmuch as such evidence to some extent was hear-say”.

The Court further found that in order to establish that a person is a Bargadar, he must prove that he himself is cultivating land from his own sources; that he shares crops with the land owner, in the proportion provided in the Act, and such factum of sharing of crops must be established by documentary evidence, namely receipt.

In the present case, conspicuously, no such receipt has been produced by the private respondent before any of the authorities at any stage of the litigation.

The forums below proceeded merely on the premise that the private respondent has been cultivating the land, on the basis of field enquiry reports, without taking into account the absence of share produce delivery receipts.

Even if we were to proceed on the premise that no objection as to non-production of share receipts was raised by the writ petitioners at any point of time, the existence or absence of such document, being a foundational premise for declaring a person to be a Bargadar, had to be adverted to by the concerned authorities before declaring that a person is a Bargadar , irrespective of whether any objection is taken or not.

Thus, in the absence of such ingredient being satisfied, we are unable to accept that the private respondent crossed the preliminary threshold for being declared to be a Bargadar.

We take note of the fact that in an earlier round of litigation, a similar exercise was undertaken up to the Appellate Authority and the Tribunal, which reached this Court and a learned Single Judge of this Court, vide order dated May 18, 1999 passed in C.O.3211 of 1998, had remanded the matter with the observation that the orders impugned therein amount to grave dereliction of duty and were passed in flagrant violation of law and if allowed to stand would amount to grave injustice.

Accordingly, the impugned orders were quashed and the matter was remanded back to the authorities concerned with a direction to make “fresh enquiry” and to pass fresh orders in accordance with law.

Thus, the remand by the learned Single Judge of this Court contemplated a fresh enquiry on all aspects of the matter which go on to establish that the private respondent is or is not a Bargadar.

In the teeth of said specific direction, it cannot be contended now that the writ petitioners did not raise the objection of absence of share receipts, since such ingredient was necessarily to be considered in consonance with the direction of the fresh enquiry passed by this court, irrespective of such objection.

Even otherwise, from the impugned order itself, we find that the writ petitioners had actually raised the question of absence of share produce, which was brushed aside by the learned Tribunal on the flimsy pretext that it was a “stock plea”, without entering into the question at all and/or considering that no such share produce receipt was ever furnished before any of the authorities.

A field enquiry report, as held in Shambhu Nath Ghosh (supra), is in the nature of hearsay evidence and the product of an enquiry by a third person and cannot substitute the existence or non-existence of a share receipt actually proving that delivery of the share, that too in terms of the conditions imposed by the agreement between the Bargadar and the person under whom he is cultivating, is produced.

Such essential ingredient having been overlooked, the impugned judgment of the learned Tribunal was perverse on such ground alone.

On the question of limitation, we find that the proceeding under Section 19B was not initiated on the basis of the second representation given to the Bhag Chas Officer by the private respondent on September 8, 1992, where the alleged termination of his cultivation was alleged.

The said proceeding was initiated only on the basis of an application made by the private respondent on April 7, 1997, after expiry of the limitation period of two years from dispossession.

The second proviso to Section 19B of the 1955 Act categorically provides that an application under Sub-Section (1) of the said Section has to be made within two years from the date of termination of cultivation by the Bargadar.

Sub-Section (1) contemplates an application for restoration of the cultivated land to the Bargadar in the event he has been dispossessed therefrom without due process of law.

Read in conjunction, sub-Section (1) and the second proviso of Section 19B clearly indicate that an application for restoration has to be made within two years from the date of termination.

In the present case, thus, the application dated April 7, 1997, which prompted initiation by the authorities of the proceeding under Section 19B, was palpably time-barred.

It cannot now be said that the second representation dated September 8, 1992 was substantially an application under Section 19B for two reasons.

First, the proceeding under the said provision was not initiated on the basis of the said representation but on a subsequent time-barred application where the prayer for recovery of possession was specifically made.

Secondly, even the private respondent proceeded on the premise that the second representation of 1992 was not one under Section 19B, by filing a subsequent representation on April 7, 1997, specifically seeking restoration of possession and not merely reviving his prayer on the strength of the 1992 representation.

As such, the said issue cannot but be decided in favour of the writ petitioners as well.

Even otherwise, since we have categorically held above that the private respondent has miserably failed to prove the sine qua non of declaration of Bargadarship, that is, delivery of share of the produce, by receipts, the authorities below as well as the learned Tribunal acted de hors the law in declaring that the private respondent is a Bargadar and directing restoration of possession to him.

Mere cultivation, sans delivery of share produce, does not render a cultivator a Bargadar under the paradigm of the 1955 Act.

In such view of the matter, the impugned judgment of the learned Tribunal cannot be sustained.

Accordingly, WPLRT 655 of 2003 is allowed on contest against the State and ex parte against the private respondent, thereby setting aside the impugned judgment of the Tribunal dated June 13, 2003 passed by the First Bench (Third Bench in-Charge) of the West Bengal Land Reforms and Tenancy Tribunal in O.A. No.3512 of 2002, as well as the orders passed by the Appellate Authority and the Bhag Chas Officer which were affirmed by the said judgment.

Any action, if taken pursuant to the said judgment and/or orders, stands hereby revoked and annulled and shall be reversed if necessary.

There will be no order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.