Surendra Nath Sinha Roy vs State of West Bengal

Arun K. Mukherjea, J.—This appeal is directed against a judgment and order dated September 28, 1964, of D. Basu, J. The appeal arises in the following circumstances:

The Petitioner, who is now an Indian citizen, was originally a resident of Rangpur in East Pakistan where he had certain landed, properties. The Petitioner''s uncle, Ganesh Chandra Singha Roy, who is Respondent No. 5 in these proceedings, was also originally resident of Rangpur and he too had lands there. The Petitioner states that in the wake of communal disturbances in East Pakistan, which broke out in April 1950, the Petitioner''s lands as well as the lands of his uncle, Ganesh Chandra Singha Roy, his aunt (wife of Ganesh) and of certain other persons were exchanged with the lands of one Jahiruddin Prodhan and his relatives, these latter being situate in the district of Cooch Behar. This exchange is alleged to have been effected sometime in or about the month of May 1950. In terms of this exchange the Petitioner, his uncle and aunt and the other persons aforesaid took possession of the lands of Jahiruddin and his relatives in the Indian Union while their own lands were at the same time taken possession of by Jahiruddin and his relatives. On May 5, 1950, Jahiruddin executed and registered an ammoktarnama in favour of the Respondent No. 5, that is, Ganesh Chandra Singha Roy. The Petitioner says that this ammoktarnama was "in respect of the said lands of Jahiruddin and his other relatives." On May 6, 1950, Jahiruddin executed a Deed of Exchange in respect of the afore-mentioned lands, but this deed was executed only in favour of the Respondent No. 5, Ganesh, although the lands of Jahiruddin and his relatives had in reality been exchanged with the lands of the Petitioner and certain other persons, and although the Petitioner along with those persons had taken actual possession of the lands allotted to their respective shares. In the petition, the Petitioner says that this happened through mistake. Thereafter, when the Petitioner and the other persons, who had also exchanged lands, asked for title deeds in respect of the lands in their possession, the Respondent No. 5 Ganesh executed in their favour certain documents on Agrahayan 17, 1359 B.S. and Magh 5, 1359 B.S., corresponding respectively to December 1, 1952 and January 17, 1953, declaring that whatever right, title and interest had been acquired by the Respondent No. 5 under the deed executed by Jahiruddin in the said lands of the Petitioner and his friends would vest in the latter. The deed that was executed in favour of the Petitioner is dated Agrahayan 17, 1359 B.S. The Petitioner states that on the strength of the deed dated May 6, 1950, which had been executed by jahiruddin in favour of Ganesh, all the lands were recorded in the Settlement Records in the name of the Respondent Ganesh. Sometime after this, a notice dated July 19, 1960, from the Revenue Officer, Alipurduar, district Jalpaiguri, was served upon the Petitioner and proceedings u/s 5A of the West Bengal Estates Acquisition Act, 1953, were started against the Petitioner in respect of lands which are claimed by the Petitioner as belonging to him in the circumstances stated hereinbefore. A copy of the notice has been annexed to the petition. At the time of the hearing before the Revenue Officer both the Petitioner and the Respondent No. 5 gave evidence and stated the above facts and circumstances and objected to the validity of the proceedings. The Revenue Officer overruled the Petitioner''s objection and passed an order that the transfer was not bona fide and was to stand cancelled from the date on which it was made. Against that order of the Revenue Officer the Petitioner preferred an appeal before the learned Special Judge, Jalpaiguri. The appeal was, however, dismissed and the learned Special Judge upheld the order passed by the Revenue Officer by a judgment dated May 18, 1962. The Petitioner thereafter made an application under Article 226 of the Constitution, challenging the aforesaid orders of the learned Special Judge and the Revenue Officer on various grounds stated in the petition.

The first point taken by Mr. Arun Dutt, appearing for the Petitioner, was that in the facts and circumstances of the case Section 5A of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the ''said Act''), had no application. In order to understand the argument of Mr. Dutt it is necessary to set out the provisions of Section 5A of the said Act in extenso:

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 5th May, 1953, and the date of vesting, if in its opinion there are prima facie 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 the 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 rights 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 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.

(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.

(5) The procedure to be followed in such enquiry shall be such as may be prescribed.

Provided that

(i) no order shall be passed in an enquiry held under this section except after giving the transferor and the transferee an opportunity of being heard;

(ii) in conducting such enquiry the State Government and any officer to whom any powers have been delegated under Sub-section (4), shall have all the powers of a Civil Court for the purposes of taking evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents and shall be deemed to be a Civil Court within the meaning of Sections 480, 481 and 482 of the Code of Criminal Procedure, 1898 (V of 1898).

(6) An appeal against any order passed by the State Government under Sub-section (2) or Sub-section (3), or passed under any of those Sub-sections as read with Sub-section (4) by an officer to whom powers have been delegated under Sub-section (4), if preferred within sixty days of such order or within sixty days from the date of appointment of the Special Judge, whichever is later, shall lie to a Special Judge, being a person who is or has been a District Judge appointed by the State Government for the purpose of this section and such Special Judge shall dispose of the appeal according to the prescribed procedure.

(7) In this section--

(i) a transfer shall be held to be not bona fide if it was made principally or partially with the object of increasing the amount of land which a person may retain under this chapter or principally or partially with the object of increasing the amount of compensation under chapter III or chapter IV;

(ii) a transfer in favour of one or more of the following relatives of the transferor, that is to say, a wife, a husband, a child, a grand-child, a parent, a grand-parent, a brother, a sister, a brother''s son, a sister''s son, a daughter''s husband, a son''s wife''s brother or sister, or a brother''s wife, made between the 15th day of May, 1953, and the date of vesting, shall be presumed to be not bona fide until the contrary proved. Provided that no such presumption shall be made in respect of transfer of land by an intermediary if the aggregate area of such land owned by the intermediary at any time between the 5th day of May, 1953, and the date of transfer did not exceed twenty acres in extent in the case of non-agricultural land and twenty-five acres in extent in the case of agricultural land:

(iii) ''transfer'' means a transfer by sale, mortgage, lease, exchange or gift,

(iv) ''transferor'' and ''transferee'' include the successors in interest of a transferor or a transferee.

The purpose of the section is obvious. On or just before the vesting of the estates there had been apparently a large number of transfers of land made by ''intermediaries'' which had been affected with the specific purpose of retaining control over lands which the said Act would not have ordinarily allowed. This retention was achieved by transferring in favour of one''s own near relatives or nominees all lands in excess of the maximum that one could hold in one''s own name after the date of vesting. The section empowers the State Government to institute an enquiry into any case of transfer after May 5, 1953, and before the date of vesting provided, of course, the State thinks that such transfer was not bona fide. If on enquiry the State finds that the transfer was not bona fide, the State Government can cancel it by an order.

Mr. Dutt developed his argument on the following lines. Section 5A of the Act applies only in respect of cases of transfer of land made by an intermediary between May 5, 1953, and the date of vesting which admittedly was April 14, 1955. In the instant case the transfer of lands to the Petitioner was, however, made on Agrahayan 17, 1359 B.S., which corresponds to December 1, 1952, and would not, therefore, fall within the mischief of Section 5A of the Act. Apparently, Mr. Dutt wants to rely on the unregistered document alleged to have been executed by Ganesh on that date as the document which effected the transfer. It may be remembered that Ganesh made a declaration in this document that the right, title and interest of Ganesh in the lands covered by the Deed of Exchange but in the possession of the Petitioner were to vest in the Petitioner. This contention had been advanced also before the Revenue Officer who had conducted the proceedings u/s 5A of the Act as well as before the Special Judge before whom the Petitioner went on appeal against the findings of the Revenue Officer. The Petitioner relied on various documents in support of this contention. These documents are as follows:

(1) The Deed of. Exchange dated May 6, 1950, executed by Jahiruddin in favour of Ganesh;

(2) A registered Power of Attorney dated May 5, 1950, executed by Jahiruddin in favour of Ganesh;

(3) An unregistered document dated January 20, 1953, purporting to be a patta in respect of 33.29 acres of land executed by Ganesh in favour of his wife Biroja Bala Roy;

(4) A similar unregistered patta dated December 1, 1952, in respect of 4.04 acres of land executed by Ganesh in favour of the Petitioner;

(5) Union Board tax receipts in the name of Biroja Bala and the Petitioner;

(6) A tobacco licence standing in the name of Ganesh and the Petitioner;

(7) Notice of agricultural income tax assessment on Ganesh and certain other relatives of Ganesh in respect of the assessment year 1955-56;

(8) A sale certificate dated May 3, 1959, in favour of Biroja Bala;

(9) One amalnama and a rent receipt in favour of Ganesh; and

(10) Certain rent receipts granted by Ganesh in favour of the Petitioner and others.

Some of these documents do not concern the Petitioner because the proceedings u/s 5A of the Act were initiated and conducted not only against the Petitioner but also against other relatives of Ganesh at the same time.

The Petitioner as well as Ganesh gave evidence before the Revenue Officer. Both the Revenue Officer and the Special Judge after considering the evidence on record came to a finding that no transfer had been effected on the alleged date appearing on the unregistered transfer deed. They further came to a finding that the various transfer deeds including the deed in favour of the Petitioner must have been executed on some subsequent date and in any case after May 5, 1953, and were made by Ganesh in favour of his wife and nephew only for retaining larger areas of khas lands within his possession that what he would be in a position to retain after the date of vesting by reason of the provisions of Section 6(1) of the Act. The Revenue Officer came to a clear finding that the transfers were not bona fide and on that basis the Revenue Officer passed an order cancelling the transfers. When the matter went before the Special Judge, the Petitioner adduced some additional evidence before him to show that the Petitioner himself had lands in the district of Rangpur and that these lands had actually been handed over to Jahiruddin Prodhan at the time of exchange of lands between Ganesh and Jahiruddin. Inspire of this, the learned Special Judge had no hesitation in rejecting the contention of the Petitioner and in upholding the finding of the Revenue Officer. The learned Special Judge scanned the unregistered pattas, the rent receipts and the Union Board tax receipts, the tobacco licences and also the notice of agricultural income tax assessment and held that these documents did not prove that the Petitioner had exchanged any land with Jahiruddin Prodhan.

We do not see any reason why the concurrent findings of fact of the Revenue Officer as well as of the Special Judge should be rejected by us in this writ jurisdiction. In agreement with Basu, J. we hold that these findings of fact of the Revenue Officer and the, Special Judge cannot be re-opened under Article 226 of the Constitution of India. It is true that the remark of Basu, J. in his judgment that the provision in Section 20 of the Act for an appeal to the High Court would also be a bar to our interference with the order of the Special Judge in the writ jurisdiction is not quite correct. Section 20 provides for an appeal only from certain specific orders passed by the Special Judge when acting as an Appellate authority over an order passed by the Compensation Officer u/s 15 or 15A or under proviso (b) to Sub-section (2) of Section 25. The Act does not in this section or in any other section of the Act provide for the Revenue Officer''s order u/s 5A. Even so, we are in respectful agreement with Basu, J. that we should not disturb the finding of the Special Judge on a question of fact. It is well-known that orders passed by a Tribunal strictly within the limits of its own jurisdiction should not be interfered with by the High Court in the writ jurisdiction unless there is an error apparent on the face of the records. In this particular case we do not find any such error on the face of the records.

Before we part with this aspect of the case we should mention one significant fact. The learned Revenue Officer has found that the Petitioner''s name was not recorded in the Settlement Record which was prepared on the basis of the notification No. 8280-L.R., dated September 26, 1949, or when the plot-to-plot enquiry was made in respect of these lands in the early part of 1955 on the basis of the notification Nos. 11370 and 11374 L.R.E.F., dated July 27, 1954. There can be no doubt that the Petitioner was not in possession at that time. This could not have been possible if the transfers in question, on which the Petitioner now relies, had been effected before May 5, 1953, on the basis of the unregistered patta. So far as the Settlement Records go, the lands under the alleged transfer were recorded in the name of the transferor Ganesh even up to the point of time when the field enquiry was completed on May 4, 1955. Therefore, it is impossible to resist the inference that the transfers must have been effected, if at all, after May 5, 1953.

Mr. Dutt, appearing for the Appellants, made another argument which though interesting is quite impossible to accept. Mr. Dutt argued that Section 5A of the Act applies only to transfers made between two dates, viz., May 5, 1953 and April 14, 1955, which is the date of vesting referred to in that section. It is not enough if the transfers are made after May 5, 1953; they will also have to be made prior to April 14, 1955, before they can be brought within the ambit of Section 5A of the Act. Neither the Revenue Officer''s judgment nor the judgment of the Special Judge give any reasons for holding that the transfers had been made before April 14, 1955. In my opinion, it was not at all necessary for the Revenue Officer or for the Special Judge to come to a finding on this point. After the date of vesting it would no longer be within the competency of any transferor to transfer lands recorded in his name if the same lands were in excess of the limits laid down in Section 6(1) of the Act and if the lands were not such as the previous owner wanted to retain for his own possession. I might as well clarify the point by an illustration. Suppose, an intermediary has 40 acres of land in his khas possession. Under proviso to Sub-section (1) of Section 6 he would be able to retain only 20 acres out of these 40 acres provided, of course, the other conditions are satisfied. This is the maximum limit to what" an intermediary can retain u/s 6(1) of the Act. After the date of vesting the intermediary can say that he retains 20 acres out of these lands. These lands will be left in his possession by the State, and he can, of course, dispose of these lands after the date of vesting if it is permissible for him to do so under other provisions of law. With regard to the excess 20 acres he has no right of disposal at all. These 20 acres must automatically vest in the State. Therefore, if an intermediary seeks to transfer after the date of vesting lands which are not within the permissible quota retained by him, such transfers are automatically invalid and may be ignored as nullities. This being the position in law, why should it be necessary for the Revenue Officer to come to a definite finding that the transfers were made before the date of vesting? Indeed, the Revenue Officer cannot possibly come to any such finding. The dates which are shown on the deeds of transfer were rejected by the Revenue Officer as sham for the purpose of the proceedings u/s 5A of the Act. It was, therefore, not necessary for the Revenue Officer to come to a finding that the deeds must have been executed before the date of vesting. Besides, if it is the contention of the Petitioner that the transfers were actually made after the date of vesting, it is open to the Petitioner to say so clearly. In that case, of course, the position that the Government can take in this matter is very simple. Government then has only to find out whether Ganesh had transferred any lands which were a part of the lands retained by him by virtue of the provisions of Section 6(1) of the Act. If both Ganesh and the Petitioner would agree then, of course, the position would be entirely different. There might be other objections which may or may not be open to the State regarding the competence of the transferor to transfer the lands without the permission of the State. But that is another problem with which we are not concerned here. On the other hand, if it be found, as indeed it was found in this case, that the lands claimed by the Petitioner are not included within the area of lands retained by the transferor, then, of course, the Petitioner has no case at all. After the date of vesting the transferor had no right to make such transfer. In this view of the matter this argument of Mr. Dutt is absolutely of no merit whatsoever.

At one stage Mr. Dutt sought to argue faintly that the Revenue Officer''s judgment does not expressly mention the fact that the transfers were made, after May 5, 1953, but when it was pointed out to him that the Appellate authority, viz., the Special Judge has in any event made up that defect by recording a clear finding on this point. Mr. Dutt did not press this argument further.

Mr. Dutt also tried to argue that there was no finding by the Revenue. Officer or the Special Judge that the transferor had retained lands in excess of the ''ceiling'' permitted by the Act. Upon pointing out that there is a finding on this point in the judgment of the Revenue Officer and that in any point this contention had not been raised either before the Revenue Officer or the Tribunal, Mr. Dutt abandoned this line of argument.

Mr. Dutt''s next contention was that u/s 44, Sub-section (4) of the Act all entries in the records of rights finally published under Sub-section (2) of that section must be presumed to be correct until it is proved by evidence to be incorrect. Therefore, since the present records of right show the Appellant to be in possession of the disputed lands in chukani right under Ganesh, this position cannot be disturbed without further evidence. No evidence on this point had been adduced before the Revenue Officer and, therefore, there should be no interference with the chukani rights of the Petitioner. This argument is slightly contradictory to the other arguments of Mr. Dutt and I find it slightly difficult to understand. It is one thing to say that the Petitioner is a transferee of a right and interest which originally belonged to Jahiruddin, and quite another thing to say that the Petitioner has an interest subordinate to the interest of Ganesh who now stands in the shoes of Jahiruddin. I pressed Mr. Dutt on this point and Mr. Dutt clearly stated that the Appellant had been induced as a tenant. In that case the whole story of transfer on the basis of exchange between Jahiruddin and the Petitioner falls to the ground. Obviously, Mr. Dutt found himself in a rather difficult position in reconciling the present records of right with the other documents on which his client has relied. The case that the Petitioner has all along made out was that he was in fact a transferee from Jahiruddin. Unfortunately, there is no deed of transfer executed by Jahiruddin in his favour. There is a registered Power of Attorney in favour of Ganesh. One could have understood if Ganesh acting on the strength of this Power of Attorney had, on behalf of Jahiruddin, executed a deed of transfer in favour of the Petitioner. But that is not the position in this case at all. There is a patta executed by Ganesh in favour of the Petitioner and this patta is unregistered. In executing this patta Ganesh does not need any authority from Jahiruddin. Therefore, he does not require the registered Power of Attorney. He was merely creating an interest in favour of the Petitioner subordinate to his own interest. Therefore, Ganesh in executing this unregistered patta could not possibly have been purporting to reconvey to the Petitioner Jahiruddin''s interest which by mistake or in a hurry had been transferred to Ganesh himself. The records of rights were apparently corrected at a later stage on the basis of this unregistered document dated December 1, 1962, executed by Ganesh in favour of the Petitioner. In these circumstances, I am afraid, I cannot see any logic in the argument of the learned Counsel. I have taken note of the supplementary affidavit affirmed on June 1, 1965, by Ganesh and filed on behalf of the Petitioner. Ganesh clearly states in para. 5 that Jahiruddin''s Power of Attorney empowered him to settle the lands of Jahiruddin ''to chukani tenants''. Ganesh says that on the strength of that Power of Attorney he settled on behalf of Jahiruddin Prodhan 15.19 acres of land with the Petitioner who was already in possession of the lands and, in support of this, Ganesh says that he executed a Deed of Settlement in favour of the Petitioner. He admits that the Deed of Settlement was not registered and was defective. We shall ignore the defects. But what is the substance of Ganesh''s affidavit? The substance, if this affidavit is to be believed, is that the Petitioner is a chukani tenant under Jahiruddin. That introduces another element of discrepancy and is in contradiction with the main case of the Petitioner before the Revenue Officer and the Tribunal. It is peculiar that in the same affidavit Ganesh says that, in view of the original exchange of lands executed between Jahiruddin and the Appellant Petitioner, the lands covered by that exchange were taken possession of by the Petitioner, but that instead of being recorded in his name they were wrongly recorded in the name of Ganesh. This, he says, was a mistake. But this mistake according to him was subsequently rectified and a tenant''s khatian No. 124 was recorded in the name of the Petitioner

to describe the correct position in respect of the 15.19 acres of land settled.

with the Petitioner. Thereafter a khatian with No. 218/125 had been created in the name of the Petitioner. This particular affidavit of Ganesh was filed in the Court of Appeal and is, in my opinion, a complete departure from the earlier case of the Petitioner made out before the Revenue Officer or the Special Judge or even before Basu, J. I do not think it is permissible for the Petitioner to change his stand in this manner. In any case this is a completely inconsistent position and flatly contradicts the Petitioner''s main case even before us.

In connection with this argument which I have just disposed of, Mr. Dutt argued that the interest recorded in the name of the Petitioner in the corrected records of right, viz., the rights of a chukani tenant is not an estate under the West Bengal Estates Acquisition Act. Therefore, this right could not vest in the State. Mr. Dutt relied on the case of Jogendranath v. Chandra Kumar ILR 42 Cal. 28 in support of his proposition that the chukani right is recognised as a special kind of right. This argument is obviously an argument of despair. Whatever may be the nature of the interest created by the document executed by Ganesh, it would be transferred within the meaning of Section 5A of the Act. Section 5A relates to any case of transfer of any land. And ''transfer'' for this purpose has been defined in subs, (iii) of the same section, i.e. Section 5A as meaning ''a transfer by sale, mortgage, lease, exchange or gift''. This definition would be wide enough to apply to the creation of a subordinate interest like a chukani interest. Therefore, it is difficult to appreciate why Section 5A would not be attracted. I should only add that this is a new argument which the Petitioner had not made before the Revenue Officer.

There were several other arguments of Mr. Dutt which it is difficult for me to formulate, because Mr. Dutt really did not press them seriously. He just suggested them more or less as ''feelers'' and as soon as he found that we were not much impressed by those arguments and, as soon as we pointed out the obvious criticisms of those arguments, he abandoned them and went over to another argument. For example, he seemed to be arguing at one stage that the Act was not applicable to khasmahal lands. But as soon as we pointed out that Basu, J. mentions in his judgment that this argument was not pressed before Basu, J. on the ground that the argument had not been taken before the Revenue Officer, Mr. Dutt gracefully passed on to another argument. Similarly, Mr. Dutt tried at one stage to raise a constitutional point based on the Constitution (17th Amendment) Act, 1964. As soon as he countered certain initial difficulties, he gave up this point. I mentioned these points only for the sake of completeness.

I have already dealt with the principal contentions of Mr. Dutt. We must say that we do not find any substance in any of these points. We, therefore, order as follows: The appeal is dismissed. The judgment and order dated September 28, 1964, of Basu, J. are upheld. No order is made as to costs.

Sinha, C.J.

I agree.