Ganendra Narayan Ray, J. - (1.) In this writ petition a Memo issued by the Junior Land Reforms Officer, Sonamukhi on July 1, 1976 to the respondent No. 3, Abani Bauri to the effect that he had bean declared as a bargadar under section 55A of the West Bengal Land Reforms Act, and as such, he would resume cultivation in Barga within 7 days from the issue of the said memo is under challenge. The ad-judication made by the Bhagchas Officer in Petition Cane No. 4(S) of 1976-77, inter alia, declaring that the said Abani Bauri was also under section 15A(1) of the West Bengal Land Reforms Act, is also under challenge in this Rule. The petitioners contend that the lands originally belonged to petitioner No. 1 and Narayan Chandra Dutta and lit said lands were under personal cultivation of the petitioner No. 1 and that the Narayan Chandra Dutta and was also recorded as such, in the Regional Record of rights. After the death of the said Narayan Cbsadra Dutta, the petitioners Nos. 2 to 13 inherited the interest of the said Narayan Chandra Dutta. The petitioners contend that petitioners were surprised to receive a copy of memo which is annexure 'B' to tho writ petition wherein it was directed by the Junior Laud Reforms Officer, Sonamukhi, that the said Abani Bauri would resume cultivation of the land of the petitioners as bargadar within seven days from the date of the receipt of the raid Memo. In the application for vacating interim injunction filed on behalf of the respondents, it was however disclosed that proceeding was initiated on the basis of an information received from the Special Officer, Schedule Castes and Scheduled Tribes Welfare, Bankura illeged to be contained in his Memo No. 751/BNK/TW dated 7.5.76 that one Abaui Bauri tan of late Kanai Bauri of Dewanbazar, Sonamukhi used to cultivate about 5 bighas of land of Sadhan Dutta but the said Abanl Bauri had been deprived of the right of cultivation by the owner. As no particulars of the lands ware furnished is the said Memo of the Special Officer, Scheduled Castes and Scheduled Tribes Welfare, Bankura, the Bhagchas Officer asked the said Abanl Bauri to appear before him on May 15, 1976 to furnish details and it appears that the said Abani Bauri could only inform that the lands were situated in Mouza Baikunthapur but plot numbers could not be furnished by him and on the prayer of the said Abani Bauri a local enquiry was held and on the basis of the said local enquiry it was held by the said Bhagchas Officer that Kanai used to cultivate the disputed lands for a long time and he having died about 2 yean ego, his son Abani Bauri was quite competent to continue the cultivation of the said lands and it was therefore ordered that under section 15A (i) of the Land Reforms Act the said Abani would continue cultivation of plot No. 1531 of Mouza Baikunthapur within P.S. Sonamukhi. It appears that pursuant to such adjudication purported to be under section 15A(i) of the Land Reforms Act, the aforesaid memo was issued by the Junior Land Reforms Officer, Sonamukhi. It has been specifically stated in the writ petition that said Kanai was never a bargadar under the petitioner No. 1 or the predecessor-in-interest of the petitioners Nos. 2 to 13 and the said Kanai had no occasion to cultivate the said land at any point of time. It has been also stated in the writ petition that the said Kanai had died sometime in the year 1973-74 but the exact date of death was not available despite enquiries being made in that regard. From the affidavit of opposition, the date of death of the said Kanai cannot also be found but it appears that the Bhagchas Officer held that the said Kanai had died about two years ago.
(2.) Mr. Mullick, the learned Advocate appearing for the petitioners contended in the first place that the proceeding initiated under section 15A was wholly illegal and without jurisdiction. No application was made either by the owner or by the legal heirs of the said Kanai to appoint end/or to nominate any of the heirs of Kanai as lawful bargadar under section 15A of the West Bengal Land Reforms Act. It appears from that only of the basis of a Memo received from the Special Officer, Schedule Castes and Tribes Welfare, Bankura, the said proceeding was initiated. Mr. Mullick contended that under Rule 2A of the West Bengal Land Reforms (Bargadar) Rules the heirs of a deceased bargsdar should determine as to who amongst the said heirs will continue as bargadar within 30 days from the date of the death of the original bargadar. If no such determination or election amongst the heirs is made within the said period of 30 days from the date of the death of tho original bargadar, then within seven days thereafter an application may be made before the prescribed authority either by any of such heirs or by the land owner for the pursuit of selecting and/or nominating any of the heirs as bargadar by such prescribed authority. Mr. Mullick contends that in the instant can, admittedly within two years from the date of the death of Kanai Bauri, no such election or determination of the bargadar was made by the heirs of the said deceased Kanai and no application was also made within the prescribed period under section 15A of the Land Reforms Act read with Rule 2 of the said Bargadar Rules for determination and/or appointment of one of such legal heirs as a bargadar on the death of the original bargadar. Mr. Mullick submitted that accordingly the proceeding initiated under section 15A was illegal on the face of it and the purported determination under section 15A by the Bhagchas Officer that Abani Bauri sill be the bargadar under the petitioners inter alia illegal and without jurisdiction. Mr. Mullick also submitted that under sub-section (3) of section 15A of the West Bengal Land Reforms Act, a lead owner may appoint any person whether an heir of the deceased bargadar or not for the purpose of cultivation of the lands when the heirs of the deceased bargadar have failed to elect one of such heirs to be the bargadar and the prescribed authority also fails or omits to appoint or select one of such heirs within the prescribed time and in the prescribed manner as referred to herein before. As admittedly in the instant case no such determination and/or selection was made within the prescribed time either by the heirs of the said deceased Kanal or by the prescribed authority, the purported adjudicate Milan under section 15A is illegal and no effect should be given to the lime. Consequently, the issue of the said memo by the Junior Land Reforms Officer, Sonamukhi, directing the said Abani to continue the cultivation as bargadar as contained in Annexure 'B' to the writ petition is also without jurisdiction and the said memo should be quashed. Mr. Mallick submitted that it has been specifically stated in the writ petition but the said Kanai Bauri had died leaving behind him three or four sons, a widow and three or four daughters. The said fact of leaving a number of heirs by the said Kanai has not been disputed by any of the respondents and as such the allegation made in that regard stands controverted. Mr. Mullick submits that in such circumstances, even assuming but not admitting that the said Kanal was bargadar in respect of the lands of the petitioners at any point of time, there could not have been adjudication under section 15A in favour of the said Abanl Bauri lot the reasons stated hereinbefore and the said adjudication made by the Bhagchas Officer and tho said memo issued by the Junior Land Reforms Officer should be quashed. There is force in the contentions of Mr. Mulllick I am inclined to accept the same. It may he that the said Abani Bauri is capable of doing the work of cultivation but the said Abani cannot be appointed and/or declared as a bargadar under section 115A simply on the basis of a reference made by tho said Special Officer, Schedule Castes end Scheduled Tribes Welfare, Bankura admittedly long satisfied two years from the date of death of Kanai who is alleged to be the original bargadar. As there had not been any selection or appointment of the bargadar in accordance with the provision of section 15A read with rule 2A of the Bargadar Rules, the landlords will be free to appoint any potion of their choice to continue the work of cultivation in respect of the disputed lands. Hence, even assuming that the said Kanai was a bargadar in respect of the disputed lands, no declaration can be given under section 15A in favour of the said Abani.
(3.) The Rule is, therefore, made absolute and the impugned Memo being Annexure 'B' to the writ petition and the impugned adjudication made by the Bhagchas Officer in the said Petition Case No. 4(S) of 1976-77 which is Annexure 'X' to the application for vacating or modification of the interim order made by the respondents Nos. 1 and 2 are quashed and the respondents are restrained from giving any effect or further effect to the said memo, annexure 'B' to the writ petition and the said adjudication made in Petition Case No. 4(S) of 1976-77 declaring the said Abani Bauri as bargadar under section 15A of the Land Reforms Act There will however be no cost in this Rule.;