SUDHIR CHANDRA MAITY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN the instant Rule,the petitioner claims that he was a bargadar under the erstwhile intermediary. The petitioner's contention is that after the vesting of the interest of the said intermediary, the petitioner's right as a bargadar remained unaffected and state Government was bound to recognise the petitioner's barga cultivation of the land irrespective of the fact that the superior interest of the intermediary had vested in the State. The petitioner contends that the State government was not entitled to settle the said lands to other persons but the State government was to accept the petitioner as its tenant.

(2.) MR. Bhunia, learned Counsel appearing for the petitioner contended that although under the West Bengal estates Acquisition Act barga cultivation is an 'incumbrance" and the land of an intermediary vests in the State under the said Act free from all incumbrances, the right of barga cultivation is not an "incumbrance" under the West Bengal Land Reforms Act, 1955. Mr. Bhunia contends that under section 3 of the West Bengal Land Reforms Act, the provision of the Land reforms Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract expressed or implied inconsistent with the provisions of the said Act. Mr. Bhunia submits that under sub-section (6a) of Section 2 of the Land Reforms act "incumbrances" means any lien, easement or other right or interest created by a raiyat on his holding or in limitation of his own interest therein, but does not include the right of the bargadar to cultivate the land of the holding. Accordingly Mr. Bhunia contends that the right of barga cultivation must be controlled under the West bengal Land Reforms Act which has an overriding effect because of section 3 ,of the Land Reforms Act. Mr. Bhunia submits that the Division Bench of this court in the decision made in the case of Rajani Kanta Hazra vs. The Junior land Reforms Officer and Ors. reported in 1978 Calcutta High Court Notes page 264 has considered the legal import of the definition of 'incumbrance' under section 2 (h) of the West Bengal estates Acquisition Act but it has not taken into consideration the effect of the definition of 'incumbrance' in the land Reforms Act and also the implication of Section 3 having an over-riding effect on the provisions of the west Bengal Estates Acquisition Act. Accordingly Mr. Bhunia contends that the said decision cannot govern the contention raised in the instant case. It may be stated in this connection that the Division Bench of this Court held in the said case of Rajani Kanta Hazra that the barga right is an "incumbrance" within the meaning of section 2 (h) of the West Bengal Estates Acquisition act, 1953 and if it is an "incumbrance;"; the vesting was free from this "incumbrance" and the State was at liberty to distribute the land to other cultivators. The aforesaid contention of Mr. Bhunia however cannot be accepted for lite simple reason that the definition of "incumbrance" under section 2 (6a) of the Land Reforms Act came into effect in all the districts of West Bengal except in the areas transferred from Bihar to west Bengal under West Bengal Act 40 of 1956 on 25th of September 1965; in terms of the notification issued by the state Government. It may be pointed out in this connection that all the provisions of the West Bengal Land Reforms act did not come into force at a time and under sub-section (3) of section 1 of the Land Reforms Act it was provided that Section 1 of the Act would come into force at once and the remaining provisions of the Act, in whole or in part, would come into force on such date or dates and in such district or part of a district as the State Government may from time to time by notification in the Official Gazette specify. The relevant definition clause i. e. subsection 6a of Section 2 of the Land Reforms Act was incorporated in the Act with retrospective effect in 1965 but such incorporation with retrospective effect does not ipso facto makes the said definition operative from the date of passing the Act in view of specific provisions made in sub-section (3) of Section 1 of the Act. In view of enforcement of the said definition clause, namely sub-section (6a) of Section 2 of the land Reforms Act defining "incumbrance" only on September 25, 1965 there was no occasion of giving effect to the said definition of 'incumbrance' in the Land Reforms Act on the date of vesting of the intermediary interest in april 1955 or the raiyati interest in april 1956 under the West Bengal estates Acquisition Act, 1953. At the relevant time i. e. in April, 1955 the only relevant definition of incumbrance was under Section 2 (h) of the West bengal Estates Acquisition Act, 1953 and as aforesaid, the Division Bench of this Court has held in the said decision of Rajani Kanta Hazra that the lands vested free from all incumbrances in the State of West Bengal and the Barga right was an 'incumbrance' within the meaning of Section 2 (h) of the West bengal Estates Acquisition Act, 1953. Accordingly, it cannot be contended by the petitioner that since he was a bargadar in respect of the lands in question, his interest remained unaffected despite vesting of the interest of intermediary and/or raiyat under the West Bengal estates Acquisition Act.

(3.) MR. Bhunia however submitted that it was the intention of the Legislature that the interest of the bargadar should be amply protected and it was for this reason that in the definition of 'incumbrance' in the Land Reforms Act, barga cultivation was not treated as an 'incumbrance'. Mr. Bhunia further contended that even in the case of vesting of excess lands under the Land Reforms Act, the right of bargadar was amply protected, and it was provided that in the case of vesting of excess lands belonging to the members of the family of a raiyat the bargadar's right should not be affected to the extent of one hectre of land. Mr. Bhunia contended that in the instant case the petitioner is a poor cultivator who does not hold more than one hectre of land and therefore his right of barga cultivation should not be interfered with in any manner whatsoever by the State government. There is force in the said contention of Mr. Bhunia. Though the petitioner has no legal right to continue as a bargadar in respect of the land vested in the State free from all incumbrances under the West Bengal Estates acquisition Act, 1953; it is desirable that the State Government will sympathetically consider the case of the petitioner along with other eligible candidates in the matter of settlement of the lands in question to the landless persons. With these observations this rule is discharged, but there will be no order as to cost. Re : C. R. 4114 (W) of 1974 as the facts and circumstances of this Rule are similar to the facts and circumstances of the above case this rule is also discharged with similar observations as in the above Rule. There will be no order as to costs in this Rule also. Rule discharged.