State of West Bengal vs Pusparani Baksi

P.N. Mookerjee, J.

Civil Revision Case No. 1388 of 1961

This Rule was obtained by the State of West Bengal against an order of the learned Special Judge (District Judge) in a proceeding u/s 5A of the West Bengal Estates Acquisition Act, 1953. The disputed property is comprised of certain raiyati holdings. The contesting opposite party No. 1 claims to be a transferee of a portion of the said property and the question was whether Section 5A of the said Act would apply to the instant case and whether under the said section the transfer to the opposite party No. 1 was bona fide or not.

The learned Revenue Officer applied the said section to the instant case and came to the funding, on Certain reasons, given in his order, that the transfer in question was not bona fide under the-said section and that the said transfer should stand cancelled from the date on which it was made.

Being aggrieved by the above order the transferee, who is the opposite party No. 1 before us, appealed to the Special Judge, and the learned Special Judge, having come to the conclusion that to the instant transfer the above Section 5A would not be applicable, allowed the appeal and set aside the order of the learned Revenue Officer on the ground that it was made without jurisdiction.

The transfer in question purports to have been made on December 18, 1953, under a document which was executed on that day and registered on March 8, 1954. According to the learned Special Judge this document would be prior to the effective date for purposes of Section 5A in regard to raiyati holdings and, accordingly, it would be outside the mischief of the said section.

The learned Special Judge came to his above conclusion upon the view that, as the above Act was extended to raiyati holdings by a notification dated April 10, 1956, it could have no operation in respect of such holdings prior to that date and, accordingly, Section 5A cannot apply to any transfer of raiyati holdings, made prior to the said date, notwithstanding the express provision in the said section that it will affect all transfers between May 5, 1953, and the date of vesting which, under the relevant notification u/s 52 of the Act, would in respect of raiyati holdings be April 14, 1956. In support of his view the learned Special Judge relies on the decision of Sen, J. in an unreported case of this Court (C.R. 3150 of 1957) since reported, Prahlad Chandra Dey Vs. Gobinda Chandra Dey and Others, in which the said learned Judge held, with reference to Section 5B of the above Act, that the said section would have no application to any court sale, held prior to April 10, 1956, notwithstanding the express mention of June 1, 1953, as the relevant earlier date for purposes of sales, intended to be affected by the said section.

The decision, as we have said above, was given on Section 5B, which is materially different from Section 5A and which deals with an entirely separate matter, and it may very well be distinguished on that ground as has been done in the Bench decision of this Court reported in Ambujakhya Mukherjee v. The State ILR (1966) Cal. 495.

It is also clear from the said Bench decision and the decision reported in Haranath Ghosh v. State of West Bengal 67 C.W.N. 129 and cited therein, and the earlier decision reported in Ratnakar Ghosh and Another Vs. State of West Bengal and Others, that, under the terms of Section 52, the modifications would be limited to contextual modifications in the application of the Act to raiyats as intermediaries and would not extend to modification of any substantive provision of the statute, the specific mention of the date. (May 5, 1953), in the context of Section 5A of the Act and its structure and purpose, would go against any construction, which would proceed on the footing that the same was not a part of the substantive provisions of the statute. It is quite apparent further that by the section, as applying to raiyats, if the view of the learned Special Judge be accepted, only transfers within the very small or negligible period of four days from April 10, 1956 to April 14, 1956, would be affected. That would make the section nugatory for all practical purposes. We do not think that that was the intention of the statute and no rule of intention can in the above context whittle down the express provision in Section 5A, which fixes the earlier day, for purposes of judging the scope of the said section, as May 5, 1953. In this view, we are unable to agree with the learned Special Judge that on the ground given by him the said section would have no application in the instant case.

Before we conclude, it is necessary to add that, while we affirm the view of the Revenue Officer on merits that the impugned transfer to opposite party No. 1 was not a bona fide one, the learned Special Judge made a finding that the predecessor of the transferors of opposite party No. 1 was a benamdar of one Sudhansu Sekhar Bakshi, who however was not a party to the instant proceeding. It may very well be argued that in the absence of Sudhansu such a finding should not have been made. That however is not material for our-present purpose, as the said finding of the Revenue Officer and also of the learned Special Judge on the merits that the transfer in question was not a bona fide one, may well be supported on the other finding that this transfer was without consideration and was not intended to be a real transfer and was suspicious under the other circumstances stated or pointed out by them in their judgments.

In the above view, we would strike out the above unnecessary finding from the judgment of the learned Special Judge that Nagendra, the predecessor of the transferors of opposite party No. 1, was a benamdar of Sudhansu and affirm the finding of the two Courts below against the bana fide nature of the instant transfer on the other grounds giving by them.

In the result, this Rule is made absolute, the order of the learned Special Judge, holding that Section 5A has no application to the instant case, is set aside and the order of the learned Revenue Officer is restored subject to the observations made hereinbefore.

There will be no order for costs in this Rule.

Civil Revision Case No. 1389 of 1961

For reasons, already given by us in the connected Civil Revision Case No. 1388 of 1961, this Rule also is made absolute, the order of the learned Special Judge is set aside and that of the Revenue Officer is restored.

We must make it clear, however, that further proceedings, if any, will be taken in the instant case by the appropriate authorities in accordance with law.

There will be no order for costs in this Rule also.

Arun Kumar Dutt, J.

I agree.