BISWANATH GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In these writ applications which I have taken up for consideration together I am called upon to consider the propriety of the measures taken to record the names of Bargadars or alleged Bargadars or share-croppers. The said procedures which have been initiated and are causing certain amount of public attention and in some quarters criticism are sometimes loosely referred to as "Operation Barga". in these applications, therefore, I have to consider the relevant provisions of the different statutes under which the act of the recording of the bargadars is done and the rules and regulations relevant in respect of these as well as the actual procedures followed. The main grievance of the petitioners is that the procedure followed so far in most of the cases have been contrary to the provisions of the relevant statute, rules framed thereunder and the appropriate notifications or instructions applicable. It is, further, the grievance of many of the petitioners that the actions of the concerned authorities have been carried out in a most high-handed and arbitrary manner and allegations have been made that the actions taken were motivated by political purposes and have been used by the party which has majority in the Government to oppress the people and to defeat the lawful rights of the citizens. As I have mentioned before, it is, therefore, necessary first to consider what are the relevant provisions applicable to such procedure of recording and whether such relevant provisions are invalid in any way and, then, to examine whether in implementing the act of recording of bargadars there has been violation of the provisions of the procedure which the law enjoins and whether the concerned officers have acted arbitrarily. On behalf of the respondent government authorities it has been emphasised ; that "Operation Barga" is only a method of describing the speedy and effective system of recording the rights of share croppers or the bargadars who are genuine bargadars but whose names have not been because of various social and economic factors recorded. The said action, according to the respondent government authorities, is meant to be strictly in accordance with the procedure enjoined by law and not by executive fiat or action but by the relevant authorities contemplated under the relevant Acts and the rules and notifications framed thereunder. The expression "Operation" it was submitted on behalf of the respondents has been used to emphasise the urgency of the matter which has troubled the rural life for a long time. If the expression "Operation Barga" is meant only for carrying out in a speedy manner the recording of the bargadars in accordance with the relevant provisions of law by the competent authorities and not to carry out the said recording by any executive fiat or direction, then, in my opinion, such method described as operation cannot be objected to, Preservation of land for agricultural purposes being one of the most important sources of good for our people is a matter of grave social and economic concern for all. As was emphasised by Mr. Justice P.B. Mukharji, as the learned Chief Justice then was, in (he Division Bench Judgment in the case of Ramhari Vs. Nilmoni Das, AIR 1952 Cal, page 184 at page 186 of the report that the Barga system of cultivation has been an integral part of the agricultural economy and the land system of the State. That system is the work of many centuries and during the first stages of its evolution the sense of common interest and joint venture between the owners of land and the Bhagchasis was the cementing bond between them. But with the progress of time and the changing-social and economic conditions that ] sense of common interest has been lost and there has been on the one hand the growing evils of what is called the absentee landlordism which became irresponsible and on the other by the growing delirium to use the poor rural masses on the plea of certain new ideology by the slogan commonly known as the land belongs to the tillers of the soil and the tension between the landowners and the Bhagchasis has developed and their relationship has been greatly strained for quite sometime creating agrarian disturbances, law and order problem and rural unrest affecting the production of food in our country.

(2.) It would perhaps not be inappropriate in this connection to note the ancient notion in India, about the origin of property in land. "A field is his who clears it of jungle, game is his who has first pierced it See Manu, Chapter IX Verse 44, quoted in the Tagore Law Lectures or the Land-Iaw of Bengal by Justice Sarada Charan Mitra, 1898, page 2. The learned lecturer at page 4 of the said book noticed that the notion of our proprietory right could hardly find place amongst the people in the earlier stages of civilization. They are due to juridical refinement. The great Indian sages did not turn their attention to the theory, they took a practical view of proprietary right. Earth according to them was common property just as air or water, a right to portion of it accrued from occupancy. The right was not to the soil but to the usufruct. The Indian sages made no distinction in principle between res nullius and res communes, Jaimini's aphorism, which according to European authorities, was composed many centuries before Christ is "Earth cannot be given away as it h common to all." Similar view was expressed by Sayana in his commentary. According to the learned lecturer private property in land seems to have been recognised as a sacred right which even the hand of despotism would rarely violate. The right, according to Hindu law, of the first person who makes beneficial use of the soil was recognised by some of the Judges of the Calcutta High Court in the well known case of Thakurani Dasl Vs. Bisweswar Mukherjee, BLR Sup. Vol. page 202 and in some cases by the Madras High Court. Sarada Charan Mitra has emphasised that Hindu Sages said and repeatedly said that the sovereign was not the proprietor of the soil. He was entitled to a share of the usufruct of the lands in the occupation of his subjects not because he was the owner but because a share was payable to him as the price for protection afforded to life, liberty and property. Aryans according to Sarada Charan Mitra, were essentially agriculturists and cultivators and they took pride in the art in which they excelled the aboriginal races around, which was not then a disgrace, a cause of shame as unfortunately it became later to hold the plough and "break the stubborn glebae". It was recognised, however, that the primitive stage of society which gave the first occupier a right to continue in occupation and no more could not possibly last long. Complications must necessarily have arisen and did as a matter of fact arise and Hindu sages had to grapple with the relations which the more developed state of things required them to deal with. Narada and Parasara had copiously to deal with questions on the relationship of landlords and tenants. Intermediate tenures were also apparently-unknown in the earlier days. Later on a family could sublet a land and get it cultivated by hired labourers.

(3.) Thereafter, historically speaking the advent of Muslim rule and introduction of some parts. of the Muslim jurisprudence in the land system changed the system. The Mahomedan conquerors came about the beginning of the thirteenth century. They had their own system of jurisprudence which differed in many respects from what they found to be in existence in India. But the doctrine of fiscal system were of recent date. There was the introduction of what is known as Khiraj, The principle of Musaiman society at that time was that if the Imam conquered a country by force or arms he was at liberty to divide it among the Musalmans or he might leave it in the hands of the original proprietors exacting from them a capitation tax called zeeyat and imposing a tribute upon their lands known as khiraj. According to this theory the conquerors were considered as the proprietor of the land, khiraj according to the Mahomedan doctrine varied with the nature of the land and detailed rules were laid down. In India, however, no land was distributed among the Musalmans. Small portions might I have been given to soldiers as jaigirs and aymas but they were generally waste lands. They levied the Khiraj and applied the theory of proprietorship of the King in the soil and soon khiraj was commuted into money rent. Thereafter there was historically an assimilation of the Hindu & Mahomedan systems. Slier Shah introduced during his short reign innovations and settlement of land revenue was one of them. Akbar's scheme was to carry out the previous system into effect with greater precision and correctness. Then there was certain innovation of Todar Mai. The rights under Mahomedan settlement of the class known as zamindars and the right of the cultivators are matters of great importance as the principles of the settlement of Land Revenue under the Anglo-Indian Government are to a great extent based on them. The distinct revival in the reign of Akbar of the old Hindu system under his Hindu minister would seem to imply a revival of the principle which distinctly-recognised the right of cultivators to hold on and enjoy the usufruct and even to alienate and sub-let. It was to all intents and purposes a proprietory right subject to payment of a definite share of produce which since Raja Todar Mai's settlement could be called customary rent. Ejectment was unknown except for non-cultivation or continuous non-payment of rent. Competition rent was never thought of. The victory of the English army at Palasscy established in Bengal the nominal vice-royalty of KJir Jaffar and the actual sovereignty of a company of English merchants. But of course the management of the Board of Directors of the East India Company caused the terrible calamity of the famine of 1770. The English in India started with the assumption that all the soil belonged in absolute property to the sovereign and that all private property in land existed by his sufference. This was the doctrine of Abu Haneefa and accorded with the English theory that actual ownership of land resided in the sovereign. The existence of private property in land which was the fundamental doctrine of Hindu jurisprudence and in which even the Mahomedan Government in India did not put out of sight was entirely ignored. But with this back ground came the permanent Settlement of 1793 and transfer in perpetuity of a vast and then unmeasured quantity of land to a class of men who were known as zemindars and property in the soil was declared vested in them. The remaining quantity of land cultivated or waste continued to be the property of the State, (See Tagore Law Lectures 1895. The Land Law of Bengal Sarada Charan Mitra).