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Girish Chandra Majhi Vs. Girish Chandra Maity - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1259 of 1951
Judge
Reported inAIR1951Cal574,56CWN320
ActsWest Bengal Bargadars Act, 1950 - Section 5(1); ;Constitution of India - Article 227
AppellantGirish Chandra Majhi
RespondentGirish Chandra Maity
Advocates:Apurba Charan Mukherjee and ;Samarendra Nath Banerji, Advs.
Cases ReferredRekhab Chand Doogar v. J. R.
Excerpt:
- .....took an appeal to the appellate officer. the appellate officer found that the petitioner had ' no bona fide desire to cultivate his land' and supported his conclusion by reference to the finding of the board which, in his opinion, was 'conclusive.' he referred further to an admission said to have been made before him by the petitioner that he had ''given a part of his land in bhag to one kali bagh.' that, observed the appellate officer, was not indicative of any genuine desire on the part of the petitioner to cultivate his own land and he concluded that the petitioner had no such ' bona fide desire. '5. it is against the two aforesaid orders that the present rule is directed.6. before i deal with the grounds upon which the authorities below have rejected the petitioner's application, it.....
Judgment:

Chakravartti, J.

1. This Rule is directed against two orders under the West Bengal Bargadars Act, one by a Conciliation Board passed under Section 7 (1) (c) of the Act and another by the Appellate Officer, confirming the Board's order. By the said orders the Board and the Appellate Officer have rejected an application of the petitioner to recover from the opposite party some land held by the latter as a Bargadar under him.

2. The opposite party holds three plots of land under the petitioner as a Bargadar and we are informed that the barga settlement was taken about three or four years ago. Towards the middle of 1950, when the provisions of the West Bengal Bargadars Ordinance had not become generally known, the petitioner intimated to the opposite party his intention to terminate the barga settlement and to take over the possession of the land. Thereupon, on 17-6-1950, by which date the West Bengal Bargadars Act had been passed and had come into force, the Opposite Party made an application to the Sutahata Bhag Chasi Conciliation Board under Section 7 (1) (c) of the Act on the ground that the petitioner was trying to enter upon the land without obtaining the permission of the Board. That application came to be heard by the Board in due course after notice had been served on the petitioner and was disposed of by an order passed on 9-7-1950. The Board held that the petitioner was trying to take over possession of the land without obtaining the permission of the Board, which was illegal and, in that view, made an order that he would not be allowed 'to terminate the cultivation by the bargadar.' This order was in accordance with the provisions of the proviso to Section 5 (1) of the Act which is to the following effect :

' Provided that the cultivation of such land by a bargadar shall not be terminated on any of the above grounds except under the order of a Board.'

3. The next step taken by the petitioner was that on 28-1-1951, he did what he had, on the former occasion, omitted to do, that is, he filed an application before the Board in which he set out his desire to cultivate the land by himself or by members of his family or by servants or by labourers and asked for an order, permitting him to terminate the cultivation of the land by the opposite party. That application was disposed of by the Board on 11-3-1951, when it was rejected. The finding of the Board was that the intention of the petitioner in asking for restoration of the land was ' vindictive.' The reasons given in support of the finding were that the petitioner owned considerable tracts of land, all of which he was unable to cultivate by himself and portions of which he had let out to other bargadars and, further, that the real reason why the petitioner had made the particular application appeared to the Board to be that the opposite party had incurred the petitioner's displeasure by resisting his attempt to take over possession of the land on the previous occasion.

4. From the order of the Board the petitioner took an appeal to the Appellate Officer. The Appellate Officer found that the petitioner had ' no bona fide desire to cultivate his land' and supported his conclusion by reference to the finding of the Board which, in his opinion, was 'conclusive.' He referred further to an admission said to have been made before him by the petitioner that he had ''given a part of his land in Bhag to one Kali Bagh.' That, observed the Appellate Officer, was not indicative of any genuine desire on the part of the petitioner to cultivate his own land and he concluded that the petitioner had no such ' bona fide desire. '

5. It is against the two aforesaid orders that the present rule is directed.

6. Before I deal with the grounds upon which the authorities below have rejected the petitioner's application, it is necessary to point out the explanation given by the petitioner before this Court of the admission alleged to have been made by him before the Appellate Officer. The explanation is that the Appellate Officer has put into his mouth something which he never said and could not have said at all. It is stated in para. 7 of the petition that Kali Bagh, instead of being a bargadar under the petitioner, is really his labourer and he has been residing in his house for over 15 years and. the petitioner is getting the few plots of land he has in his khas cultivation cultivated with the aid of Kali Bagh. It is stated further in the petition that all the lands owned by the petitioner had originally been let out in barga settlement to different persons for reasons then existing and it was only recently that he had been able to get back about 3 bighas of land which is the only land that he has in his khas possession and which he is cultivating himself. The three plots which he wants to get back from the opposite party are situated in the same village as those three bighas and that, it is stated, was the chief reason which made the petitioner try to recover possession of those plots, since, if cultivated by himself, together with the three bighas already in his possession, they might provide him with sufficient food crops for the sustenance of himself and the members of his family. These statements have not been controverted on behalf of the opposite party.

7. It will appear from what I have stated about the orders passed by the Board and the Appellate Officer that both of them have proceeded on the view that they were entitled to dismiss the petitioner's application if they found that the real reason why he wanted the lands back was not that he needed them, but some other reason such as a desire to avenge the rebuff he had suffered on the previous occasion. It is to be pointed out that neither of them has found that the petitioner is not in a position to cultivate the three plots by himself or by his labourers or that he does not intend to do so, but they have considered it sufficient to find that the professed desire of the petitioner to cultivate the lands by himself or by labourers is not a bona fide desire, since his real object is to 'harass' the opposite party by depriving him of the lands. Having regard to that view taken by the Board and the Appellate Officer, it is necessary to examine the provisions of the Act a little closely.

8. The relevant provisions are Sections 5 (1) and 7. Section 5 (1), so far as is material runs thus :

'The owner of any land cultivated by a bargadar shall be entitled to terminate the cultivation of such land by the bargadar on one or more of the following grounds, namely--

(a) that the owner desires to cultivate the land by himself or by members of his family or by servants or by labourers.'

The rest of the section is not material, but the proviso to the section lays down that no barga settlement shall be terminated on any of the grounds mentioned in the section except under an order of a Board. Section 7 (1) provides that disputes between an owner and his bagardar with regard to certain specified matters shall be decided by a Board and among the matters specified is termination of cultivation by the bargadar. Sub-section (2) of Section 7 enjoins that in deciding any dispute referred to Sub-section (1), the Board shall observe, among others, the provisions of Section 5.

9. It will be noticed that the sole requirement under Section 5 (1) (a) is that the owner should desire to cultivate the land by himself or by the classes of persons mentioned in the section. The word 'desire' is not qualified in any way so as to restrict its natural meaning by the addition of some condition, expressed or implied. The only facts which the section contemplates, in order that its operation may be attracted, are (1) that there should be some lands, (2) that such lands should be held by a bargadar under a barga settlement from the owner and (3) that the owner should desire to cultivate the lands himself, either personally or through some other agency such as members of his family or labourers. If these three facts and conditions are present, the right of the owner to terminate the cultivation of the lands by the bargadar is established at once by the express terms of the section, and there is no room for importing into it any further qualification of any kind. Resumption of property let out to tenants has also been dealt with by the same Legislature in a succession of Rent Acts, but the language of Section 5 (1) (a) of the present Act is in striking contrast with the language of the Rent Acts which is not without significance. Thus for example, Section 11 (1), Calcutta Rent Act of 1920, which forbids decrees for recovery of possession against tenants so long as they pay rents to the full extent allowable by the Act, contains a number of exceptions in the proviso thereto, one of which is that the premises 'are bona fide required by the landlord' for one or other of the purposes specifically mentioned in the section. That language was repeated in Clause (f) of the proviso to Section 11 (1), Rent Control Act of 1948, where the expression used is again ' bona fide required. ' There has been a slight variation in Clause (h) of the proviso to Section 12 (1) of the Act of 1950 which deals with the same subject-matter, but there also the language is 'reasonably required.' It will thus be noticed that so far as recovery of possession of tenanted premises is concerned, it has never been considered sufficient under the successive Rent Acts that the landlord should only desire to have the premises back or even that he should require them, but it has been further insisted that the requirement must be a bona fide requirement for the purposes recognised by the Acts. A requirement without any pressing need, such as, for example, for more comfortable or luxurious living, would not apparently be a bona fide requirement as contemplated by the Rent Acts. The true import of the expression 'bona fide required' was explained in a decision of this Court as long ago as in 1922 when Buckland J. observed in the case of Rekhab Chand Doogar v. J. R. D'Crus, 26 C. W. N. 499, as follows :

'I do not think it is enough that a plaintiff, in order to defeat a plea under the Calcutta Rent Act, should merely say that he desires the premises bona fide for his own occupation. The word in the Act is not 'desire' but 'require' This, in my opinion, involves something more than a mere wish and it involves an element of need, to some extent at least.'

It is to be noticed that, in the passage quoted above, Buckland J. chose the word 'desire' in order to contrast it with the word 'require' which he had to construe and he held that under the Rent Act of 1920, where the expression used was 'require' and not 'desire,' it was not enough that the landlord should have a mere wish. It is particularly significant that in the West Bengal Bargadars Act, passed in the year 1950, the Legislature should have used the very word 'desire', and that without any qualification, in striking contrast with the language which it has used in successive Rent Acts and that it should have adopted an expression, the lesser meaning of which had been judicially explained as long ago as in 1922. The Legislature must be presumed to have known what 'bona fide required' meant and how much less was meant by 'desires' and if, in 1950, it still preferred to use the word 'desires' without any qualification and refrained from using the words 'bona fide requires' or even 'bona fide desires,' it must be understood to have done so deliberately and to have made provision for only what Buckland J. had said in 1922 to be the effect of an unqualified use of the word 'desire'. It appears to us that in view of the natural meaning of the word 'desires' and the absence of any qualification of any kind to restrict its natural meaning, as also the difference between that expression and the expression 'bona fide required' which had been used in a series of Rent Acts but has not been used in the Barga Act, there is no room for importing any considerations of 'bona fides' or requirement in the decision of a question under Section 5 (1) (a) of the latter Act. It is true if the owner can get back the land settled with a bargadar upon his merely wishing for it, not much of protection appears to have been provided for the bargadar under the Act, although it was undoubtedly enacted for his benefit. But that, in fact, appears to be the position and it is clear that the Legislature has dealt more softly with owners of cultivable lands than it has with owners of lettable houses. There is, however, Sub-section (2) of Section 5 which provides that if, after the owner has terminated the cultivation of any land by a bargadar under Sub-section (1) (a), he is found not to cultivate it by himself within a certain time or to have let it out to other bargadars within a certain period, the bargadar, who has been dispossessed by the owner, will be entitled to be restored to the cultivation of the land by him. That section appears to us to provide the only protection that the bargadar has under the Act against an arbitrary resumption of possession by the owner. That protection, however, can act only as a determent against disingenous applications and the benefit of it can more (sic) to the bargadar only at a subsequent stage when the land which he was made to yield up, is restored to him. At the stage of the application, the desire of the owner is enough under the Act. It must, of course, be a desire to cultivate the land personally and not any other desire, but if the requisite desire be present, the motive which causes or inspires it, or the fact that the owner does not need the lands and can do without bringing them under personal cultivation, is immaterial. All that can be looked for is whether a desire to cultivate the lands exists in fact or is a pretence. More the section does not provide for, and more cannot be read into it by the authorities charged with the duty of administering the Act.

10. The present Rule was issued under Article 227, Constitution of India. One of the objects of providing the general power of superintendence that has been conferred upon this Court by that Article is to enable to see that all the Courts and tribunals in the Province keep within the bounds of their authority and perform their duties in accordance with law. Where a tribunal has been set up under a Special Act, it is the duty of this Court to see, in the exercise of its power of superintendence, that such tribunal acts within the limits of the Statute creating it, and applies correctly and properly the laws it is authorised to administer. It appears to us that in the present case both the Board and the Appellate officer were applying and administering, not Section 5 (1) (a), West Bengal Bargadars Act, 1950, but that section with certain supplementary provisions added to it by themselves. Such an error we are entitled to correct in exercise of our powers under Article 227, Constitution of India and we must do so in the present case.

11. On the merits too, I confess that I do not at all understand the decisions of the Conciliation Board and the Appellate Officer. The petitioner wanted his lands back from his bargadar and told him that he was to give them up. The bargadar demurred and went to the Board and the Board told the petitioner that he could not resume the lands without obtaining an order from the Board. Thereupon the petitioner applied to the Board for the necessary order. In other words, be did what the Board told him he ought to do, if he wanted to take the lands back. He did not ask for anything more from or against the bargadar than he had done when he had spoken to him directly. How, in these facts, the Board discovered vindictiveness on the part of the petitioner or the Appellate Officer discovered lack of bona fides or a desire to harass the bargadar, it is not easy to see. Findings of this character cannot possibly be allowed to stand and regulate the rights of the parties.

12. In the result the Rule is made absolute, the orders of the Board and the Appellate Officer complained of are set aside and it is directed that the Board do allow the application of the petitioner, dated 28-1-1951, for termination of the barga cultivation of the lands, held under him in barga by the opposite party, and do authorise him to resume possession thereof.

13. As there is no appearance on behalf of the opposite party, I make no order as to costs.

P.N. Mookerjee, J.

14. I agree.


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