1. This is an application under Art. 226 of the Constitution for an appropriate writ or direction upon the opposite parties to show cause as to why the opposite parties Nos. 4 and 5 should not be called upon to exhibit the authority under which they purport to act as members of a Bhag Chas Conciliation Board constituted under the West Bengal Bargadars Act, 1950, and why they should not forbear from acting as such members and also for a direction upon opposite party no. 7 to cancel or withdraw the Notification, dated 18-1-1951, which constituted the Bhag Chas Conciliation Board in question.
2. The petitioner claims to be a bargadar within the meaning of West Bengal Act 2 of 1950. It is alleged in the petition that on or about 15-3-1950, the West Bengal Bargadars Act came into force. Section 2(b) of the said Act defines a bargadar as meaning a person who, under the system generally known as Adhi, Barga, or Bhag, cultivates the land of another persons on condition of delivering a share of the produce of such land to that other person, but shall not include any such person, if he has been expressly admitted to be a tenant by the owner in any document executed by him, or executed in his favour and accepted by him, or if he has been held by a Civil Court to be a tenant.
3. Section 2 (c) defines a Board as meaning a Bhag Chas Conciliation Board established under sub-section (1) of Section 6 and includes an officer authorised under the proviso to sub-section (4) of that section.
4. Section 6 of the Act provides:
'(1) The State Government may, by notification, establish one or more Bhag Chas Conciliation Boards for any local area specified in the notification.
(2) Every Board shall consist of a Chairman who shall be a person in the service of Government and four other members, two of whom shall be representatives of bargadars cultivating lands situated in the local area for which the Board has been established and the other two shall be representatives of owners of lands cultivated by such bargadars.''
5. The other sub-sections of Section 6 are not material for the purpose of this case.
6. It appears that by Notification No. 14624L, published in the Calcutta Gazette, dated 18-1-1951, opposite party No. 7 purported to establish for the area specified in the said Notification a Bhag Chas Conciliation Board and appointed opposite parties Nos. 1 to 5 as members thereof under the said Act.
7. The petitioner does not dispute the validity of the appointments of opposite parties Nos. 1, 2 and 3 as members of the Board, but he challenges the appointments of opposite parties Nos. 4 and S and contends that they are not properly in office as such members. It is stated by the learned Counsel for the petitioner that opposite parties Nos. 4 and S, who were purported to have been appointed as representatives of the bargadars are not bargadars within the meaning of the definition as given in the Act. It is pointed out that these persons are the owners of large tracts of land and that they have let out some portions of the land to bargadars to be cultivated by the latter on the barga system and that they are not looked upon by the bargadars of the village in respect of which the Bhag Chas Conciliation Board has been established as representatives of the bargadars. One Sannyasi Charan Das and one Sadhan Chandra Das, who are agriculturists residing in the same village, have affirmed affidavits in support of the petition and have stated that opposite parties Nos. 4 and 5 are not bargadars.
8. Opposite party No. 1 has affirmed an affidavit. It is stated in the said affidavit that the deponent consulted his staff who work as Union Agricultural Assistants and that they and the Presidents of the respective Union Boards told him that opposite parties Nos. 4 and 5 were good and honest cultivators and fit persons to look after the interest of the bargadars and it was upon this information received that he suggested the names of opposite parties Nos. 4 and S and sent these names to the Circle Officer, Uluberia Union; and the Government, acting upon the recommendation of the deponent, appointed opposite parties Nos. 4 and 5 as members of the Board as representing the bargadars.
9. It is clear that the deponent has no personal knowledge about the qualifications of opposite parties Nos. 4 and 5 to be members of the Board as representative of the bargadars. The persons, who are alleged to have supplied him with the information that these opposite parties were bargadars, have not come forward to swear any affidavit in support of the statements made in the affidavit of opposite party No. 1.
10. Opposite parties Nos. 4 and 5 have also affirmed a joint affidavit. Akshoy Kumar Mondal, opposite party No. 4, states that he is a bargadar and as a bargadar he cultivates 12 bighas of land under two landlords and that he is also the owner of land to the extent of 16 bighas in that area which he himself cultivates as such owner and that he has got another 11 bighas of land in a different village which he has let out to bargadars who cultivate the said land. Gnanada Bankuli, opposite party No. 5, states that he is a bargadar and that as bargadar he cultivates 18 bighas of land which belong to three landlords. Apart from this, he is the owner of 20 bighas of land in the same village which he himself cultivates as such owner and he has got another 30 bighas of land in a different union which are cultivated by bargadars.
11. There is an affidavit annexed to the affidavit of these two deponents, affirmed by one Shres-tho Dal, who claims to be a bargadar and who supports the statements of Akshoy and Gnanada that they cultivate as bargadars 12 bighas and 18 bighas of land respectively in the village in respect of which the Board has been constituted.
12. It is thus clear from the affidavits of opposite parties Nos. 4 and 5 that they are not only bargadars but that they are also owners of substantial tracts of land in the same village and also in a different village. Section 6 of the Act, read with Section 2 thereof, envisage that the representatives of bargadars must be bargadars pure and simple. If a person fills dual characters, such as that of a bargadar and that of an owner, he has conflicting; interests to serve as such owner and bargadar. In order that the interest of bargadars can be pro-perly and adequately served, the person representing the interest of the bargadars must, in my view, be a bargadar pure and simple. I do not think that it was ever contemplated by the West Bengal Bargadars Act that a person filling in both the characters of owner and bargadar would be properly considered as representative of the bargadars. The definition, as given in the Act, makes it quite clear that the person who falls within that definition must be a cultivator under the system of barga of the land of another person and it was never the intention of the Legislature that a person with, a dual capacity of the owner and the bargadar would come within the ambit of that definition.
13. In the Act the term 'owner' has been defined as follow:
'Owner in relation to any land cultivated by any person as a bargadar means the person whose land the bargadar so cultivates.'
Opposite parties Nos. 4 and 5 also in my view fall within this definition.
14. Upon the facts as appearing in the affidavit of opposite parity No. 1, it is clear that the statements made by him to the effect that opposite parties nos. 4 and 5 are bargadars cannot be of much value and cannot be acted upon by this Court. The statements are based on hearsay and therefore cannot be taken notice of by this Court. It is also clear from the admissions made by opposite parties nos. 4 and 5 in their joint affidavit that they cannot be described as bargadars pure and simple, although they assert that some portion of the land within the area in question is ultivated by them under the barga system. I do not think that these persons can be considered as proper representatives of the bargadars within the meaning of Section 6, West Bengal Bargadars Act. I prefer to accept the case of the petitioner as supported by the affidavit of Sannyashi Charan Das and Sadhan Chandra Das to the effect that opposite parties nos. 4 and 5 are not bargadars as true. I am of the view that the Bhag Chas Conciliation Board sot up by Notification issued by opposite party No. 7 on 18th January 1951, is not a validly constituted Board within the meaning of Section 6 of the Act. In the circumstances, this petition must succeed.
15. The Rule is made absolute and the opposite parties are directed to forbear from functioning as members of the Bhag Chas Conciliation Board constituted under the said Notification, dated 18th January 1951. The Notification, dated 18th January 1951, is cancelled.
16. The petitioner is entitled to costs of this proceeding from opposite party No. 7, the hearing fee been assessed at three gold mohurs.