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2014 DIGILAW 150 (CAL)

Bankim Chandra Naskar v. State of West Bengal

2014-02-24

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT 1. This writ petition is directed against the judgment and/or order dated 21st December, 2012 passed by the West Bengal Land Reforms and Tenancy Tribunal, First Bench in O.A. No. 810 of 2005 (LRTT) at the instance of the writ petitioner who was the applicant before the Tribunal. Two questions have cropped up for our consideration. Those are as follows:- “1. whether the Tribunal has any jurisdiction to grant police help under the provision of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, 2. Whether a cousin (brother) can be declared as Bargadar under his cousin (brother) in respect of a joint property held by the two cousin (brothers) in equal share. Let us now decide the first question as indicated above. Section 6 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 deals with jurisdiction, power and authority of Tribunal. The said section is set out hereunder:- “Section 6- Jurisdiction, power and authority of Tribunal –– Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to –– (a) any order made by an Authority under a specified Act; (b) an application complaining inaction or culpable negligence of an Authority under a specified Act; (c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953; (d) applications relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any Act under the provisions of a specified Act; (e) adjudication of matter, proceedings, cases and appeals which stand transferre3d from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.” 2. West Bengal Land Reforms Act, 1956 is a specified Act. A dispute concerning the said Act was dealt with by the Tribunal in the present case. There is no provision in the specified Act which authorises the authority under the said Act to grant police help to any person. 3. As such, while dealing with such a specified Act we are of the view that the Learned Tribunal had no jurisdiction to grant police help to the respondent No.4 herein. There is no provision in the specified Act which authorises the authority under the said Act to grant police help to any person. 3. As such, while dealing with such a specified Act we are of the view that the Learned Tribunal had no jurisdiction to grant police help to the respondent No.4 herein. As such, the police help which was granted by the Learned Tribunal to the alleged Bargadar, the respondent No. 4 herein, for cultivation of the land in question, was illegal and without jurisdiction and as such, the order of granting police help to the respondent No.4 for cultivating the land in question is set aside. 4. Let us now consider the other issue which is indicated in question 2 above. 5. Admittedly, the land in question was originally held and/or owned by one Haricharan Naskar. He died leaving behind his two sons viz. Patal and Banamali as his only heirs under Hindu Law. The said two sons of Haricharan inherited ½ share each in the land in dispute. Subsequently, Patal died leaving his only son viz. Ajit, the respondent No.4 herein who inherited the share of Patal after his death. Similarly on the death of Banamali his only son viz. Bankim inherited the share of his deceased father in the said land in question. Thus, Ajit and Bankim two cousin (brothers) became the joint owners of the said land having equal undivided ½ share each in the said land. 6. Ajit, the cousin (brother) of Bankim was recorded as Bargadar under Bankim in the finally published L.R. record of rights. The said record of rights was finally published in 1977. Bankim, the petitioner herein, has questioned the legality of recording of Ajit’s name as Bargadar in respect of the said land in question. Though we find that the name of Ajit was recorded as Bargadar in the finally published record of rights but we do not find anything on record wherefrom we can come to the conclusion that the dispute as to whether Ajit was a Bargadar under Bankim in respect of the land in question was ever resolved by any authority under Section 18(1) of the West Bengal Land Reforms Act, 1955. 7. Be that as it may, a question has cropped up as to whether a cousin (brother) can be regarded as Bargadar under another cousin (brother). 7. Be that as it may, a question has cropped up as to whether a cousin (brother) can be regarded as Bargadar under another cousin (brother). In this regard, reference may be made to the definition of Bargadar as provided under Section 2 of Sub-Section 2 of the said Act:- “Bargadar” means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition includes a person who under the system generally known as kisani for 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; but does not include a person who is related to the owner of the land as –– (a) wife, or (b) husband, or (c) child, or (d) grandchild, or (e) parent, or (f) grandparent, or (g) brother, or (h) sister, or (i) brother’s son or brother’s daughter, or (j) sister’s son or sister’s daughter, or (k) daughter’s husband, or (l) son’s wife, or (m) wife’s brother or wife’s sister, or (ma) husband’s brother, or (n) brother’s wife.” 8. If the exclusion as mentioned above is considered, then a brother cannot be held to be a bargadar under another brother. In this connection, a question has cropped up as to whether a cousin (brother) can be declared as bargadar under another cousin (brother). The Act is silent in this regard. Even, the expression ‘brother’ has not been defined in the Act. Even the said expression ‘brother’ is also not defined under the General Clauses Act. 9. Under such circumstances, we hold that if a narrow interpretation is given to the expression ‘brother’, then of-course it cannot be held that cousin cannot be declared as bargadar under another cousin (brother). But if the object of the said provision is considered as a whole, then we are of the view that object of the said provision will be defeated, if a narrow interpretation is given to the expression ‘brother’, as after reading the said provision as a whole, we are impressed that any near relation of land owner cannot claim bargdarship right under the land owner. 10. As such, we are of the view that the expression ‘brother’, includes ‘cousin brother and/or step brother’. Thus, we hold that a cousin (brother) cannot be declared as bargadar under another cousin (brother). 11. 10. As such, we are of the view that the expression ‘brother’, includes ‘cousin brother and/or step brother’. Thus, we hold that a cousin (brother) cannot be declared as bargadar under another cousin (brother). 11. Let us now consider the present problem from another angle. 12. Fact remains that land in question is the joint property of the two brothers, namely, Ajit and Bankim. The land in question has not yet been partitioned by any of the modes as prescribed under Section 14 of the West Bengal Land Reforms Act. So long as the land is not partitioned by metes and bounds amongst the co-sharers, each co-sharer can possess every inch of the joint property. If that be so, then we cannot conceive of a situation where a co-owner can be declared as Bargadar in respect of a joint property which is held by him alongwith his other co-owners. 13. Under such circumstances, we cannot agree with the conclusion which was arrived at by the Learned Tribunal in the impugned order. 14. We, thus, hold that Ajit, namely, the respondent no. 4, cannot be recognised as bargadar in respect of the land in question. As such, the recording of the name of Ajit as bargadar in the record of rights should not be given any effect to. 15. The concerned authority is, thus, directed to update the records of the rights in the light of the observation made hereinabove. 16. The impugned order, thus, stands quashed. 17. The writ petition is thus, disposed of with the above observation.