Sahiruddin Ahmed vs State of West Bengal and Others

Banerjee, J.—The petitioner feels aggrieved by an order made against him u/s 5A(3) of the West Bengal Estates Acquisition Act as affirmed in appeal. The petitioner states that on October 10, 1950, he had taken a loan of Rs. 5000/- from his mother Sarimannessa, respondent No. 8, on a promissory note but failed to repay the same. Being hard pressed for repayment, but having no other means to repay, the petitioner decided to transfer to his mother 29.89 acres of land, in five jotes, in satisfaction of the debt. Pursuant to the aforesaid decision, with which his mother had agreed, the petitioner executed a bainanama, dated January 7, 1953, agreeing to Convey the aforesaid 29.89 acres of land to his mother for a consideration of Rs. 6000/-. After the bainanama was executed, his mother acknowledged repayment of Rs. 5900/- only and there was an agreement between the petitioner and his mother that she would pay to the petitioner a sum of Rs. 100/-within two years of the date of the agreement and would get a conveyance executed by the petitioner in her favour. Possession of the land, the petitioner alleges, was made over to his mother at the time of the bainanama but the conveyance was not effected until May 31, 1954.

The petitioner contends that with the execution of the bainanama and the parting of possession of the land, the petitioner ceased to have any transferable interest therein and since all those things were effected before May 5, 1953, the transaction could not be affected by the provision of section 5A of the West Bengal Estates Acquisition Act, 1953.

At the time of the revision of the records of right, under the West Bengal Estates. Acquisition Act, an Attestation Officer recorded the name of the petitioner''s mother in respect of one only out of the five jotes. On her filing objection, u/s 44(1) of the said Act, an Assistant Settlement Officer recorded two more jotes in her name. In respect of remaining two jotes, there was an enquiry u/s 5A of the Act, directed by the State Government and two cases were started against the petitioner. The petitioner objected to the enquiry but his objections were overruled by the Assistant Settlement Officer, who disposed of the two cases with the following observations:

I do not understand why the Kabala in question was executed after 16 months from the date of execution of the "Bynanama" In view of the above facts I do not think that this transfer took place on 7.1.53. Hence this transfer is considered to have been made on 31.5.54. But the other facts as stated by the transferor and transferee regarding the bona fide character of the transfer are believed. But as the transferor had transferred his excess land which the transferee retained u/s. 6(1) in exercising option in terms of the said section these transferred lands should be taken into the account of the transferor in calculating his certain retention prescribed u/s 6(1).

The petitioner appealed against the said order before the Special Judge, who dismissed the appeals with the following observation:

The parties appear to have filed a bainanama of 7-1-53 before the learned A.S.O. That bainanama is unregistered but is on a stamp paper and could easily have been executed provided a stamp paper of a date prior to 5-5-53 was available. Had the bainanama been in existence at the time of execution of the kobala and had the lands concerned been actually made over to the transferee in terms thereof, we would certainly have expected mention of the fact thereof as, also of the fact of the transfer in the kabala that was executed later on, Then again if the lands were being sought to be transferred in execution of an existing debt there is no reason why a bainanama should have been executed first nor any reason why it would have taken 16 months to execute a kabala after possession of the lands had been made over. The learned A.S.O. considered these aspects of the matter and he has also considered the oral evidence adduced in the case. That evidence comprises the oral testimony of the transferor and of the Adhiar of the land and was not found acceptable by the learned A.S.O. In view of the facts and circumstances of the case I fully agree with him that possession of the lands could not have been made over prior to the date of execution of the kobala in this case. In my judgment the learned A.S.O. has been quite correct in his finding that the transfer was bona fide and in the direction that he has given in his order for deduction of 6.12 acres of land from the ceiling of 25 acres which the transferor is entitled to retain under the Act.

Aggrieved by the order of the Special Judge, the petitioner moved this court, under Article 226 of the Constitution. It is necessary for me to examine the material portion of section 5A, in order to understand the argument which was addressed to me on behalf of the petitioner.

Section 5A: Restriction on certain transfers-

(1) The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 6th day of May, 1953 and the date of vesting, if in its opinion there are prima jade reasons for believing that such transfer was not bona fide.

(2) If after such enquiry the State Government finds that such transfer was not bona fide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made: Provided that, subject to such cancellation, nothing in this sub-section shall be deemed to affect any rights which the transferor or the transferee may otherwise have against each other.

(3) If after such enquiry the State Government finds that transfer was bona fide, it shall make an order to that effect and thereupon the following consequences shall ensue, namely:

(i) the land shall, without prejudice to any right which the transferor or the transferee may have against each other, be deemed to be the land of the transferee for the purpose of this Act;

(ii) if any 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.

(4) The State Government may delegate all or any of its powers under this section to such officers in its service as it may deem fit.

Mr. Nani Coomer Chakravarty, learned Advocate for the petitioner, contended a singular point for my consideration. He argued that section 5A of the Act was bad for excessive delegation of authority. In elaboration he submitted that the power of the State Government went so far as to delegate its jurisdiction u/s 5A of the Act to such officer in its service as it may deem fit, without indicating the class or classes of officers to whom such power may be delegated. Such a power, he contended, suffered from the infirmity of excessive delegation and should be struck down. In support of his proposition he relief on two decisions of this Court reported in (1) Khagendra Nath De Vs. District Magistrate of West Dinajpur, and (2) Jatish Chandra Ghosh Vs. B.K. Sinha, . In the first of the two reported decisions the provision as to delegation under the West Bengal Security Act was held to be bad inasmuch as there was no restriction on delegation of power to an officer even of the lowest rank, who might be wholly unfitted to exercise the power so delegated. The latter rase followed the earlier one.

In the type of cases relied upon by Mr. Chakravarty, citizens'' fundament right to freedom was affected by the impugned Act and the power to interfere with such freedom was condemned as unreasonable on the ground that such power could be delegated even to unworthy hands. The rights conferred on the State Government, under section5A of the Act, does not interfere with the fundamental Constitutional right of intermediaries as to property. The right of retention of land u/s 6 of the Act, conferred on an intermediary after the vesting of his interest in the State, is a statutory right conferred on intermediaries by the West Bengal Estates Acquisition Act. Section 5A of the Act introduces certain restrictions on transfers by an intermediary but the effect of it ultimately recoils on the right of the intermediary to retain land. If the transfer is held to be mala fide, an order u/s 5A(2) cancels the transfer, but preserves the right between the transferor and transferee inter se. If the transfer is held to be bona fide then the land is deemed to be the land of the transferee for the purposes of the Act but at the same time the land is deemed to be the land nationally retained by the transferor. The effect of an order made either under 5A(2) or under 5A(3) is the same so far as an intermediary is concerned. He does not derive any benefit under a mala fide transfer because as between him and the State the transfer stands cancelled and he does not get the benefit of retaining land upto the ceiling prescribed by section 6 of the Act as also possession of the land covered by the benami or mala fide transfer. Even if the land is covered by a bona fide transfer, made after May 5, 1953, the area covered by the transfer is deemed to be retained by the transferor and he becomes entitled to retain other lands upto the prescribed ceiling but minus the area nationally retained by him which an intermediary, who had transferred after May 5, 1953, may be allowed to retain. The section, really import restriction on the right of a class of intermediaries to retain land u/s 6 of the Act. The imposition of such a restriction on a statutory right is within the competence of the West Bengal Legislature. A right to delegate exercise of such statutory right created by the statute itself, is also within legislative competence and the legislative wisdom in this respect cannot be questioned by other tests of reasonableness, such as procedural reasonableness.

In the case of Paschim Banga Malbahi Cycle Mazdoor Union and Others Vs. Commissioner of Police, Calcutta and Others, P. B. Mukharji, J., very appropriately observed that cases like the case of Khagendra, v. District Magistrate of West Dinajur (Supra), which are authorities against imposition of unreasonable restrictions on personal liberty should not be invoked for judging the validity of executive or administrative actions. I respectfully agree with the view. In my opinion cases of the type of Khagendra v. District Magistrate (Supra) are not authorities against delegation of statutory powers, not touching upon fundamental property right, to delegates or instrumentalities chosen or indicated by the statute. For the reason aforesaid I hod that the sub-section (4) of Section 5A cannot be struck down for executive delegation of statutory powers to instruction-tallies chosen by the Statue.

In the instant case the transfer by the petitioner has been held to be bona fide and the provision of 5A. (3) applied against him. That was done because the petitioner failed to satisfy that the transfer had been effected before May 5, 1953. That being the position I am disinclined to inter fear with the order. The Rule is discharged but I make no order as to costs.