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1999 DIGILAW 458 (CAL)

Anarul Haque Middya v. State of West Bengal

1999-08-20

ALTAMAS KABIR, PRODYOT KUMAR SEN

body1999
JUDGMENT Altamas Kabir, J. 1. This appeal directed against the order of the learned Single Judge dated 5th February, 1999, dismissing the appellant's writ application (W.P. No. 1540(W) of 1999) at the very threshold, posses a question of some interest. 2. Claiming to be bargadars under their step-mother, Hassina Bewa, the respondent No.5 in the appeal, in respect of certain lands which had been gifted to her and to her daughter, Sufia Khatoon, the respondent No.6 in the appeal, by their father, the appellants applied to the Revenue Officer concerned to record their names as such bargadars under Hassina Bewa, Since the Revenue Officer refused to record their names as bargadars, the appellants preferred an appeal before the Appellate Authority under section 54 of the West Bengal Land Reforms Act, 1955, being R.A. No. 20 of 1992-93. As the said appeal was being adjourned from time to time and the Appellate Authority appeared to be disinclined to hear the appeal, the appellants herein moved a writ petition, being W.P. No. 2025 (W) of 1997, and the same was disposed of on 11th February, 1997, with a direction upon the Appellate Authority to' dispose of the appeal on merits. The Appellate Authority disposed of the appeal on 28th November, 1997, by observing that he was not convinced that the appellants came within the definition of "bargadar” under the West Bengal Land Reforms Act, 1955. 3. Being aggrieved by the order of the Appellate Authority, the appellants moved an application under Article 227 of the Constitution, being C.O. No. 236 of 1998, before this Court, but the same was withdrawn and the appellants filed a fresh writ application challenging the order of the Appellate Authority, being W.P. No. 1540 (W) of 1999, and the same was dismissed in limine by the learned Single Judge on 5th February, 1999. As indicated hereinabove, this appeal has been preferred against the said order of the learned Single Judge. 4. Appearing in support of the appeal, Mr. Achintya Banerjee submitted that in or about the month of August, 1987, the appellant's father, Mahad Middya, gifted the lands in question to Hassina Bewa and Sufia Khatoon. Mr. Banerjee submitted that prior to the making of such gift, the appellants had been cultivating the said lands under their father and had delivered share of the produce to their father. Achintya Banerjee submitted that in or about the month of August, 1987, the appellant's father, Mahad Middya, gifted the lands in question to Hassina Bewa and Sufia Khatoon. Mr. Banerjee submitted that prior to the making of such gift, the appellants had been cultivating the said lands under their father and had delivered share of the produce to their father. After their father's death in October, 1987, they began to deliver the share of the produce to their step-mother, the said Hassina Bewa. 5. Mr. Banerjee submitted that under Mohammedan Law, on Hassina Bewa's death, the lands in question would pass to her son by her earlier husband as the appellants as her step-children would not be recognised as her heirs. In such circumstances, the petitioners could not be said to be members of Hassina Bewa's family and' would not, therefore, come within the definition of the expression "family" within the meaning of section 14K(c) of the West Bengal Land Reforms Act, 1955, and be excluded from the definition of "bargadar' on account of their proximity to Hassina Bewa as had been observed by the Appellate Authority in R.A. No. 20 of 1992-93. 6. Mr. Banerjee submitted that the cultivation of the lands in question by the petitioners could not also be said to be by way of personal cultivation as defined in section 2(8) of the above Act, since the appellants stand outside the term family as defined in section 14K(c) thereof. 7. Mr. BaneJjee submitted that the learned Single Judge had failed to appreciate the legal position relating to inheritance under the Mohammedan Law where step-children are concerned and erred in dismissing the writ petition in limine. 8. Mr. Banerjee urged that the appellants fulfilled all the conditions for being recognised as bargadars, since they were cultivating the lands of another and delivering the owner's share of the produce from the said lands to the owners. Mr. Banerjee submitted that the expression "bargadar”, has been given a very wide meaning under section 2(2) of the above Act and as the appellant came squarely within the said definition, the Appellate Authority under section 54 of the Act erred in law in holding that the appellants were not bargadars under the respondent No.5 and the learned Single Judge also committed the same error in dismissing the writ petition in limine. 9. Mr. 9. Mr. Banerjee submitted that the writ petition was liable to be allowed and the order of the Appellate Authority was liable to be quashed with a direction upon the concerned respondents to record the names of the appellants as bargadars of the lands in question. 10. Appearing for the State and the State respondents, Mr. Durgadas Roy submitted that the appeal was misconceived since the appellants claimed to be cultivating the lands in question and giving the owner's share of the produce firstly to their father and then to their step-mother to whom the lands had been gifted by their father. Mr. Roy urged that having regard to the provisions of section 21B of the West Bengal Land Reforms Act, 1955, the appellants could not in any view of the matter claim to be bargadars of the lands in question. 11. Mr. Roy submitted that the Appellate Authority under section 54 of the, above Act had rightly held that the appellants did not come under the definition of "bargizdar” as set out in section 2(2) thereof. 12. Mr. Roy urged that no, interference was called for with the order' passed by the learned Single Judge which merely confirmed the order of the Appellate Authority. " 13. Since we are primarily concerned with the claim of the petitioners to be bargadars of the lands in question and Mr. Banerjee has laid a good deal of stress on the definition of bargadar under section 2(2) of the West Bengal Land Reforms Act, 1955, the same is reproduced hereinbelow for reference's sake :- "2(2) '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; Explanation.-A bargadar shall continue to be a bargadar until cultivation by him is lawfully terminated under this Act." 14. Although, the above definition is very wide in its scope and ambit, nonetheless it has to be read with section 21B of the above Act which provides as follows :- "21B. Although, the above definition is very wide in its scope and ambit, nonetheless it has to be read with section 21B of the above Act which provides as follows :- "21B. Person cultivating land of another person presumed to be a bargadar in certain cases- A person lawfully cultivating any land belonging to another person shall be presumed to be a bargadar in respect of such land if such person is not a member of the family of the other person whose land he cultivates and the burden of proving that such person is not a bargadar or that the land is in his personal cultivation shall, notwithstanding anything to the contrary contained in any other law for the time being in force, lie on the person who alleges that the person cultivating the land is not a bargadar in respect of such land." 15. From the above it will be clear that a family member of the raiyat cannot be said to be a bargadar notwithstanding the fact that such person lawfully cultivates the land of another person. 16. Mr. Banerjee has tried to emphasise the fact that under the personal law of the petitioners and the respondent Nos. 5 and 6, the petitioners would not be entitled to inherit from the respondent No.5, who is their step-mother. On such promise, Mr. Banerjee urged that the petitioners could not be said to be the members of the family of the respondent No.5. 17. We are unable to agree with such contention since the petitioners do not cease to be members of the family of the respondent No.5 merely because under their personal law they are not entitled to inherit from the respondent No.5. Under the Mohammedan Law the heirs of a deceased son do not inherit from their paternal grandfather, but they do not cease to be members of his family. The law of inheritance has nothing to do with family relationships. In our view, it is immaterial as to whether the petitioners inherit from the respondent No. 5 as they continue to be members of the family of the respondent No.5. Ai; members of the family of the respondent No.5, the petitioners are barred under section 21B of the above Act from claiming any barga right under the respondent No.5. In our view, it is immaterial as to whether the petitioners inherit from the respondent No. 5 as they continue to be members of the family of the respondent No.5. Ai; members of the family of the respondent No.5, the petitioners are barred under section 21B of the above Act from claiming any barga right under the respondent No.5. The Appellate Authority under section 54 of the West Bengal Land Reforms Act, 1955, did not, in our view, commit any error in dismissing the petitioners' claim for being recorded as bargadars of the lands forming the subject matter of the writ petition. 18. We, therefore, see no reason to interfere with the order of the learned Single Judge and the appeal accordingly, dismissed, but without any order as to costs. Prodyot Kumar Sen, J.: I agree. Appeal dismissed.