Hiralal Boyed vs State of West Bengal

Chatterjee, J.—This is a second appeal from the judgment and decree of the Additional District Judge, Jalpaiguri, affirming those of the trial Court. The Plaintiff''s suit was dismissed and the Plaintiff is the Appellant.

Under the provision of Section 5A of the West Bengal Estates Acquisition Act the state Government has been authorised to "enquire into cases of transfer of land by an intermediary between the 5th day of May, 1953, and the date of vesting." May 5, 1953, is the date on which the bill relating to the said Act was published. The said section was introduced to avoid transfers which were made to defeat vesting.

Certain enquiries u/s 5A were made against the Plaintiff. The result of the enquiry was that certain transfers made by the Plaintiff were considered to be bona fide. Consequential order in terms of Section 5A, Sub-section (3), Clause (ii) was also made.

The Plaintiff instituted the present suit to challenge the proceeding u/s 5A and further to challenge the consequential order u/s 5A, Sub-section (3), Clause (ii).

The law on this point may be stated to be quite settled. u/s 5A of the Estates Acquisition Act certain rights and liabilities were created which were not previously recognised by the law of the land. The remedy is also provided therein. If an order is passed by the Authority u/s 5A of the Act an appeal would lie to a Tribunal and ordinarily a petition under Article 227 of the Constitution would also lie against such order of the Appellate Tribunal. There is no express provision in Section 5A that the Civil Courts would be barred from enquiring into the validity or propriety of an order by a Tribunal u/s 5A of the Estates Acquisition Act.

The liability created by the aforesaid statute u/s 5A was not existing under the ordinary law of the country and, therefore, the remedy granted by the statute, which created the liability, must be the only remedy. This was decided in Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C.B. (N.S.) 336. In the circumstances of this case, Section 5A created a liability and that also provided for a special and a particular remedy and, therefore, that remedy must be the only remedy and a suit will not ordinarily lie to challenge the order. But the superior Courts in England as well as in India have accepted two exceptions to this rule. They are laid down in the case of Secretary of State v. Mask and Co. (1940) 67 I.A. 222 (236). It has been held as follows:

It is also well-settled that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

It is not necessary to refer to a large number of cases where the aforesaid two judgments have been followed either by the High Courts in India or by the Supreme Court. Hence, unless any of the two conditions aforesaid are complied with, the Civil Court will have no jurisdiction to determine an order passed u/s 5A to be void. We have, therefore, to enquire whether in passing the order u/s 5A of the Estates Acquisition Act the statutory Tribunal violated the provisions of the West Bengal Estates Acquisition Act or violated the fundamental principles of judicial procedure.

Under the provisions of Section 5A of the Estates Acquisition Act the authority has first to consider whether the transaction within the relevant period was bona fide or not, and once that is found the authority would pass consequential orders. The findings of the Courts below are that the notices u/s 5A were properly served and the Plaintiff was heard and then an order was passed and, therefore, according to the Courts below there was neither any violation of the fundamental principles of judicial procedure nor any violation of the provisions of the statute. I have also looked into that matter; so far as the order declaring that transaction to be bona fide, under the provisions of Section 5A, I do not find either any violation of the provisions of the Act nor any violation of the fundamental principles of judicial procedure. Therefore, that part of the order passed by the appropriate authority u/s 5A cannot be challenged in Civil Courts on merits nor can it be declared null and void. But I find some difficulty with regard to the order passed by the Authority under Sub-section (3), Clause (ii). That Sub-section (3) is to the following effect:

If after such an enquiry the State Government finds that the transfer was bona fide, it shall make an order to that effect....

There is nothing wrong so far as the aforesaid matter is concerned; but consequence in Clause (ii) reads as follows:

....(ii) if any such land or any part thereof is retained by the transferee.

under the provisions of this Chapter, such land or such part thereof may be taken into account in calculating the land which may be retained by the transferor under this Chapter as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him.

I find difficulty with regard to the compliance of the provisions of the Act so far as the order relating to consequence in Clause (ii) is concerned. The order of the Authority with regard to that matter is as follows:

As the transfer was bona fide the record should be corrected and the property should be recorded as if in possession of the transferor.

The aforesaid provision which I have just referred to says that the Authority concerned could make such an order provided the transferee retained the transferred property. No enquiry was made whether the transferee retained the said property. The only statement is that the transferee transferred to other persons, but the question is whether those transferees retained those properties. If they did not retain it and if that property vested in the State, consequence in Clause (ii) would not operate and the Authority could not have passed an order under consequence in Clause (ii). I do not find anything from the records or from the order-sheet to show that any enquiry was made or any finding was arrived at by the Authority concerned as to whether the transferees or any of them retained the property. On behalf of the Plaintiff it is stated that a Division Bench of this Court has held that such consequential order is no part of an order regarding the enquiry as to the nature of the transaction. It is true that such consequences would follow on a finding as to the bona fide nature of the transaction. Therefore, this matter is no part of the enquiry u/s 5A(i), but still the Authority concerned had to pass consequential orders after an order was made holding that the transaction was bana fide. This second part of the order was made without an enquiry as to whether the transferee retained the land or not. No such enquiry was made and no such funding was arrived at. Therefore, the Authority violated the provision of the Act in determining the consequences of the order holding that the transfer was bona fide. Hence, even though the Civil Court is ordinarily barred from questioning such orders, the Civil Courts still have the power to enquire into such cases and to grant appropriate relief if there was any violation of the provisions of the Act or any violation of the fundamental principles of judicial procedure. There have been errors with regard to each of these matters. It was the duty of the Authority before passing the consequential order to hear the transferor and the transferee and to allow them to adduce evidence as to whether the transferee retained the same or not, thereafter the Authority could make such a consequential order. Hence, the order of the Authority holding that the transaction was bona fide must stand; the High Court finds no reason to interfere with that finding of the Courts below. But the consequential order made by the Authority concerned was not passed in accordance with the provisions of the Act nor in accordance with the fundamental principles of judicial procedure. Hence, that order is declared void, but the Authority concerned will be at liberty to serve notice upon the transferor and the transferee and also the subsequent, transferees and will be at liberty to determine on evidence whether any of the said transferees has retained the land or not, and having considered that matter the Authority under the Estates Acquisition Act may pass appropriate orders.

The idea behind the provision in consequence in Clause (ii) of Sub-section (3) is that, if the transferee has not retained the land, no order can be passed under the said Sub-clause because otherwise there will be double jeopardy. Hence, the order of the Courts below is modified to the extent that the consequential order passed by the Authority concerned is found void, but the rest of the order will stand and the appeal is disposed of as above.

In the circumstances, I make no order for costs and each party will bear his costs thought.