Probodh Chandra Samanta v. State of West Bengal — 1981 DIGILAW 177 (CAL)

ORDER This Rule, with the corresponding interim order was obtained on 8th December 1976, challenging the legality, validity or otherwise of the judgement and orders passed by the Sub-divisional Officer, Visnupur, respondent No. 2, in Case No. 5, B.C.A. of 1974 and challenging further, all steps as taken thereunder. 2. It has been stated that lands comprised in Dog No. 5055 in Khatian No. 1869, of Mouza Jomkuri, in the District of Bankura, measuring more or less 2.21 acres (hereinafter referred to as the said lands), belonged to and was possessed in Khas, by one Shri Subal Chandra Chowdhury, son of late Ramsaday Chowdhury. It has been stated by the petitioner that prior thereto, there had never been any person under the said Shri Subal Chandra Chowdhury, who acted or could claim as a bargadar within the meaning of S. 2(2) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act), and it was the further case of the petitioner that in the relevant records, there was never any note or entry in respect of a bargadar. The petitioner had further stated that he, for the first time, in or about the year 1375 B.S., approached the said Shri Subal Chandra Chowdhury, for being engaged as a bargadar, in respect of the said lands and the said Shri Chowdhury having agreed, the petitioner cultivated the said lands as bargadar, for the years 1375 and 1376 B.S., and he delivered the landlord's share to the said shri Chowdhury, against receipts duly granted. It has also been stated that thereafter, on or about 21st March 1970, the petitioner, by registered Deed of Sale, purchased the said lands from said Shri Chowdhury for valuable consideration. He has also claimed himself to be a person of the locality, having personal know ledge about Khas cultivation of the said lands. It was the case of the petitioner that after such purchase, he cultivated the said lands in Khas and was in uninterrupted possession of them. 3. It has been alleged that while in such possession, the petitioner was surprised to receive the notice dated 1st June 1970, as issued from the office of the Junior Land Reforms Officer, Sonamukhi, Bankura, in connection with his right to possess and cultivate the said lands. 3. It has been alleged that while in such possession, the petitioner was surprised to receive the notice dated 1st June 1970, as issued from the office of the Junior Land Reforms Officer, Sonamukhi, Bankura, in connection with his right to possess and cultivate the said lands. By the said notice, the petitioner was inter alia intimated that a hearing would be held on 8th June 1970, and he was directed to be present, with necessary evidence and records, in support of his case. This notice, has been claimed by the petitioner to be illegal, vague void and without jurisdiction, as according to him, under the provisions of the said Act, there was no scope for the issue of such vague and indefinite notice and furthermore as the conditions precedent for adjudicating a dispute under the said Act, had not been followed or complied with. It has also been stated that along with concerned notice, no copy of the application, on the basis whereof the said notice was issued, was served. It has of course, been stated by the petitioner that with great hardship, he could obtain the copy of the concerned application, which was filed by respondents Nos. 6, 7 and 8 and such application, on a reference, would appear to have been addressed to Junior Land Reforms Officer, Sonamukhi, who had no jurisdiction to determine the same. 4. The officer concerned, in his turn, authorised the Circle Inspector concerned, to enquire into the matter and report. The said Circle Inspector, according to the petitioner, held an enquiry and submitted a report, stating that from the evidence adduced, he was on the opinion and he believed that the petitioner was in possession in 1375 and 1376 B.S. and still he was in such possession. It was the case of petitioner that the Junior Land Reforms Officer concerned, after serving notice on both the parties and hearing them, directed that Probodh Chandra Samanta, the petitioner herein, would cultivate the said lands as usual in 1377 B.S. From such determination, one of the adversaries of the petitioner, preferred an appeal before the Sub-Divisional Officer, Sonamukhi, being B.C. Appeal No. 3 of 1970-71 and according to the petitioner, the said Tribunal, on an erroneous view of law and acting with material irregularity, remanded back the case to the Junior Land Reforms Officer concerned, for fresh hearing and action in accordance with law. Such order of rem and in appeal, has also been claimed by the petitioner to be illegal, bad and without jurisdiction and according to the petitioner, the Tribunal concerned, should have summarily rejected the appeal, as being not maintainable. 5. Admittedly, on remand, the case was heard by the officer authorised under Ss. 17, 18 and 19-B of the said Act and on due consideration of the evidence and materials on records and as placed, it was observed that the adversary of the petitioner, had miserably failed to prove his case of a bargadar, in respect of the said lands. On such, the said adversary, again preferred an appeal being Case No. 5 B.C.A. of 1974 and during the pendency of the appeal, he died on or about 14th April 1975. On his death, two applications, said to be for substitution, were flied be respondents Nos. 6, 7 and 8 on 9th June 1975 and also by respondents Nos. 9. 10, 11, 12 and 13 on 25th June 1975 respectively. 6. The petitioner has stated that the respondents as mentioned above, in the said two separate applications, claimed to be the heirs and legal representatives of the said adversary viz. deceased Nalinaksha Samanta. It was the case of the petitioner that such applications for substitution were not maintainable in law as the relevant amended provisions of law for continuation of right of cultivation on Bargadar's death were not applicable in that case. It was also claimed by the petitioner that there had also not been any determinations as to who would be the legal heir for the purpose of cultivation, within the prescribed period. 7. The petitioner has claimed that the Tribunal, this time, on an erroneous view of law and on misinterpreting the decisions of this Court, allowed the prayer for substitution and from the order as passed, it would appear that the application for substitution dated 25th June 1975, as filed by respondents Nos. 9-13, was not properly disposed of. It also appeared that the concerned appeal was heard on 11th October 1976. 9-13, was not properly disposed of. It also appeared that the concerned appeal was heard on 11th October 1976. The petitioner has stated that the Tribunal, on a complete misconception of law and mis-appreciation of the materials and evidence as adduced by the parties, came to the conclusion that Nalinaksha Samanta was a bargadar under Subal Chowdhury, till 1976 B.S. and thereafter, under the petitioner till Jaista 1277, when the petitioner tried to oust him. It was also observed that since barga right was a heritable one, the same would be enjoyed by the legal heirs of Nalinaksha Samanta. Such order as made by the Tribunal, has also been claimed by the petitioner to be illegal, bad and without jurisdiction. That apart, the petitioner has claimed the order as made, to have been done on surmises and conjectures, apart from contending that the Tribunal in making such order, acted illegally and without jurisdiction, in not considering the deposition of Subal Chandra Chowdhury, who was a vital witness to the instant case and in ignoring the receipts granted by him, which were duly proved. The petitioner has further stated that the Tribunal, also acted illegally and without jurisdiction, in entertaining and disposing of the substitution applications, as flied by the respondents as mentioned above and the Tribunal, according to the petitioner, should have held that the Barga case, out of which the concerned appeal arose, was not maintainable in law. In fact, the petitioner further claimed and contended that the Tribunal should have held that there was no determination of the lawful heirs of the decreased, within the prescribed period under the said Act. 8. The State respondents, although appeared through Mr. Basu, filed no affidavit-in-opposition, but they produced their records and made submissions on this basis thereof. The only affidavit-in-opposition in the instant case, was filed on behalf of respondents Nos. 6-8 and 12, through Sadhan Chandra Samanta, respondent No. 7. The said affidavit-in-opposition was dated 9th March 1977. It has been stated in the said opposition, that it was not correct to say that Subal Chandra Chowdhury was having Khas cultivation of the said lands and in fact, the father of the answering respondents, cultivated the said lands as bargadar under him, for about 15 years prior to their dispossession of Badal Chandra Sumanta, brother of the petitioner. It has been stated in the said opposition, that it was not correct to say that Subal Chandra Chowdhury was having Khas cultivation of the said lands and in fact, the father of the answering respondents, cultivated the said lands as bargadar under him, for about 15 years prior to their dispossession of Badal Chandra Sumanta, brother of the petitioner. Such dispossession, according to the deponent, took place in Jaista 1377 B.S. It was denied that the petitioner cultivated the said lands as bargadar under the said Subal Chandra Chowdhury and be has further claimed that the documents or receipts as produced by the petitioner, were collusive. The deponent has further stated that the father of the answering respondents, was the possessor of the said lands and was dispossessed in the manner as stated hereinafter and on such, proceedings was duly initiated. The notice as issued by the Junior Land Reforms Officer concerned, was claimed to be legal, due and proper, apart from being the fact that the same was issued with jurisdiction and authority. It was claimed that the facts pleaded in the application, clearly established a case under S. 19B of the said Act and as such, there was no justification in the claim of the petitioner, that there was no scope of issuing any notice. It has been stated that on such dispossession as mentioned above, there was certainly a dispute regarding illegal termination of cultivation of the lands in question, by the father of the answering respondents, who was a bargadar in contravention of the provisions of the said Act. It has also been stated that at the relevant time, the Junior Land Reforms Officer, Sonamukhi, was the only authorised officer under the said Act, to entertain the concerned application and as such, the exception as taken or mentioned by the petitioner, were of no assistance or avail. The order which was obtained or made in favour of the petitioner by Shri L.N. Mondal, has been claimed by the answering respondents, to be a collusive one and according to them the said Shri Mondal being in friendly terms with the petitioner, made such influenced report. The remand order as made in the circumstances as mentioned hereinbefore, was also claimed to be due and with jurisdiction. The remand order as made in the circumstances as mentioned hereinbefore, was also claimed to be due and with jurisdiction. It was also claimed that under Rule 6A(2) of the West Bengal Land Reforms (Bargadars) Rules 1965, the officer concerned, was empowered to transfer the connected case for disposal to any officer, appointed under S. 18 of the said Act. It was also claimed that since, even in spite of the draw-backs, if any, the petitioner had submitted to the jurisdiction of the authority concerned and contested the proceedings, for the purpose of obtaining a chance order, the claims as to the irregular exercise of jurisdiction, by such authority, at this stage, cannot be maintained or allowed to be agitated. It was also claimed that the right of a bargadar was and is a heritable one and in fact, such right has also been made to be so heritable, by S 15A of the said Act. In that view of the availability of heritable right as given to the bargadars under S. 15A of the said Act, it was claimed that the right of continuing the appeal, was not dependent upon the determination of lawful heir, within the prescribed period as mentioned above and in S 15A(1). As mentioned above it was the categorical assertions of the answering respondents that the applications as made, were clearly maintainable under S. 19B of the said Act. The respondents also claimed that the petitioner deliberately suppressed the fact that as per order in a S. 145 proceeding under the Criminal Procedure Code, initiated by the petitioner himself (Misc. Case No. 129 of 1970) the said lands have been attached and the Anchal Prodhan of Jamkuri, is in possession of these lands; as Receiver, appointed by the learned Executive Magistrate. 9. Mr. Case No. 129 of 1970) the said lands have been attached and the Anchal Prodhan of Jamkuri, is in possession of these lands; as Receiver, appointed by the learned Executive Magistrate. 9. Mr. Das, appearing in support of the Rule, after placing the admitted fact, upto the determinations as made contended that since the person, who claimed to be the bargadar, died during the pendency of appeal and there was neither any election made out of the heirs under S. 15A(1) or a nomination thereunder, within the time as permitted in the cases, and the applications for substitutions were filed long after the expiry of such statutory period, without explaining the delay or making any application for condonation of the same, so, the authorities concerned, had acted illegally or with material irregularity and in excess or abuse of their powers, competence and jurisdiction, in entertaining the proceedings. The said S. 15A was inserted by the West Bengal Land Reforms (Amendment) Act, 1970 (Presidents Act 16 of 1970) and then by the West Bengal Land Reforms (Amendment Act, 1972, with retrospective effect from 13th July 1970. Sub-s (2) of S. 15A lays down that the lawful heir of the bargadar, who is determined of nominated for the cultivation of the land, shall cultivate the land, subject to such terms and condition as may be prescribed. Mr. Das, in fact contended that the applications as filed, were not applications under S 15A of the said Act. To establish the period, provided for making the determination or nomination of a lawful heir and procedure in respect thereof. Mr. Das also refereed to and relied on Rule 2A of the West Bengal Land Reforms (Bargadars) Rules, 1965, and on such reference, further claimed the application, as filed, to be out of time. In fact, Mr. Das claimed that the requirements of Rule 2A were not followed. It was on the basis of such claims and on reliance to the determinations in the case of Nirmal Chandra Dutta v. JLRO Sonamukhi, 1980 (2) CLJ 282. Mr. Das wanted to supplement his arguments as mentioned above and to establish that the applications were barred by limitation. Mr. Das, as mentioned above, also submitted on the irregularities committed by the tribunal below, in making the order or remand. 10. The subsequent arguments of Mr. Mr. Das wanted to supplement his arguments as mentioned above and to establish that the applications were barred by limitation. Mr. Das, as mentioned above, also submitted on the irregularities committed by the tribunal below, in making the order or remand. 10. The subsequent arguments of Mr. Das, in view of the provisions of S 57 of the said Act, appear to be without any basis or substance. 11. Thus, we shall have to find out, how far Mr. Das was justified in his other submissions. While on such point, Mr. Basu referred to the objection petition as filed by the petitioner in the proceeding and before the Court of the Sub-Divisional Officer, Bishnupur. Such application was dated 2nd July 1973 and it was duly pointed by Mr. Basu that strangely enough, in that application, there was no statement about cultivation by the petitioner. In such circumstances and in facts of the case and along with the determinations in the case of Nilmoni Pakira & Anr. v. Kirti Bhusan Banerjee & Ors, 1978 CHN 298 , Mr. Basu contended that the determinations in the case of Nirmal Chandra Dutta v. JLRO Sonamukhi (supra), were not applicable in this case, rather the same was distinguishable. In fact Mr. Basu contended that the applications for substitution, as made, were maintainable, possible and permissible. Such submissions were of course denied and disputed by Mr. Das who also wanted to distinguish the determinations in the case of Nilmoni Pakira & Anr v. Kirti Bhusan Banerjee & Ors (supra), on facts, while on the question of S. 15A, it should be noted the certified copy of an (order?) dated 16th February 1977, was produced by the respondents other than the State, disclosing that after the disposal of the appeal, an application, nominating Shri Madan Mohan Samanta, as bargadar, in place of the deceased bargadar, has been made. This was done in case No. 59(p) of 1977. It was stated by Mr. Das that he has no instructions in the matter or on that aspect, and nomination, as has been made, was ex parte. 12. On the basis of the provisions of the said Act, there is no doubt that the heirs of a bargadar. This was done in case No. 59(p) of 1977. It was stated by Mr. Das that he has no instructions in the matter or on that aspect, and nomination, as has been made, was ex parte. 12. On the basis of the provisions of the said Act, there is no doubt that the heirs of a bargadar. may continue with the cultivation, when the bargadar dies during cultivation and when such a bargadar has filed a suit for declaration of his right and dies during the pendency of the proceeding, his legal heirs may be substituted, in terms of the determinations in the case of Nilmoni Pakira v. Kirti Bhusan Banerjee & Ors (supra), notwithstanding the fact that the deceased was not cultivating the land at the time of his death. Such determination, in my view as appeared to have been made, support the terms of Order XXII of the Code of Civil Procedure. 13. The bargadar claimant Nalinakhsha Samanta, admittedly died on 14th April 1975 and the application for substitution was filed on 25th June, 1975 i.e. within the time as prescribed or required under the Code. The objection to such application was filed on 2nd July 1975. In the said objection, the contentions as raised were practically that, under the said Act there was no provision for such substitution, as was asked for. The order dated 16th February 1977, in Case No. 59(p) of 1977 was made on the basis of an application dated 9th November 1976. It should also be noted that in the objection as filed the petitioner had not taken the points regarding limitation as raised now, specifically or definitely and even obliquely. A. barga right has been observed in the case of Rajani Kanta Jana v. J.L.R.O etc. & ors. (1978) 2 CLJ 30 (: 1978 CHN 264 ), to be encumbrance. Such right also, in terms of the provisions of the said Act, appear to be heritable, When the right as mentioned above is heritable, the same must be in accordance with the statute viz the said Act and the right must be established and claimed under the same. Neither the said Act nor the Rules as framed thereunder, has made provisions for in the words of P.B. Muhherji J, in the case of Sudhindra Kumar Aich & ors. v. Mangal Chandra Maity & ors. Neither the said Act nor the Rules as framed thereunder, has made provisions for in the words of P.B. Muhherji J, in the case of Sudhindra Kumar Aich & ors. v. Mangal Chandra Maity & ors. 69 CWN 908 the provisions of the Code of Civil Procedure universally applicable mutatis mutandis. In some Rules under the said Act reference is made to certain particular provisions of the Code of Civil Procedure and his Lordship has recorded them in his determinations. It has also been observed in that case, that the whole purpose of the said Act, is to see that disputes relating to bargadars and jotdars about termination of cultivation by the bargadar or division or delivery of the produce or place of storing or threshing of the produce, should be decided expeditiously and not with all the complications of a full fledged Civil Suit under the Civil Procedure Code. It has been further observed in that case, that the whole intention of the said Act, is that they should be decided under S. 18 and except and appeal as provided in S. 19, should finally compose the differences and should not be questioned in a Civil Court. Sections 18 and 19, according to the learned Judge, should form a complete code for disposal of matters mentioned in Ss. 17 and 18 of the said Act. Thus, it would not be in keeping with the intention of the said Act to find out the remnants of jurisdiction in Civil Court in respect of those very matters covered by Ss. 17 and 18. 14. The tribunals or authorities under the said Act, are creatures of that Act and as such they cannot go behind or act beyond the powers as conferred. When there are specific mentioning of the application of the specific provisions of the Code of Civil Procedure, it can be deduced that the provisions which are not so specifically mentioned, would have no application. Thus, the application for substitution or the provisions of Order XXII of the Code of Civil Procedure, would not ordinarily apply. When there are specific mentioning of the application of the specific provisions of the Code of Civil Procedure, it can be deduced that the provisions which are not so specifically mentioned, would have no application. Thus, the application for substitution or the provisions of Order XXII of the Code of Civil Procedure, would not ordinarily apply. In any event, even if such provisions are applied for ends of justice and for effective determination of the proceedings, the person or persons so substituted, cannot be declared or given the right or status of a bargadar, in such proceeding, as there are specific and adequate provisions for such declaration through or under S. 15A of the said Act. Section 15A and the Rules as mentioned hereinbefore, do lay down a time for making the selection or nomination, but those provisions are silent on the point whether the provisions for condonation of delay in making the nomination, would be available. Since the right of a bargadar is heritable, the same, in my view, cannot or should not be frustrated, if the application for nomination, is not filed or cannot be filed in time, for just and sufficient reasons and cause. In fact, such an application, as mentioned hereinbefore, was made, and the same has been allowed. The Order allowing such application has of course been claimed to have been done ex perte. When an order allowing such an application after the statutory period, is allowed, the same should not have been passed ex parte, as by such order, a valuable right, as accrued to another party, is taken away or interfered with. 15. In view of the above, even though I find that the order as impeached was not proper, but the subsequent order as made, would not be said to be with jurisdiction, if the same was passed with notice to the petitioner. 16. As such, I make the Rule absolute, set aside the order as impeached and direct that this order would not prejudice the respondent authorities now, to reconsider the subsequent application for nomination and pass necessary orders, if just and sufficient cause, appears to have hen made out, on condonation of delay. The said application must be dealt with and disposed of with notice and opportunities to the petitioner. Rule made absolute.