1. The facts in this case are briefly as follows: Temporary Settled Touzi Nos. 917 to 920 and 3709 of the Nadia Colleclorate were formed out of resumed lands which had formed the bed of the river Jalangi at the time of the Permanent Settlement, and were settled upon the riparian owners, the Pal Chouduris. According to the Nadia Collectorate ‘D’ Register, one Sri B. Pal Choudhury is shown as one of the proprietors of the temporary settled private estates bearing Touzi Nos. 917 and 920 of the Nadia Collectorate. According to the Rsvisional Settlement records of 1943, he is a part proprietor of the T.S.P estate bearing Touzi No. 3709 of the Nadia Collectorate. On the 26th September 1954, the said R. Pal Choudhury let out the sub-soil in these touzis (917 to 920 and 3709), in rayati Sthitiban right to (1) Shibapada Bagchi and (2) Shaik Mafassil Ali, both of whom were his employees. These two persons transferred their interest by a registered deed dated 20th December 1954, to the petitioner Ananta Kumar Dutta. It is alleged by the respondents that this Ananta Kumar Dutta is also an employee of Sri Pal Choudhury and that all these transactions are benami transactions, entered into in order to defeat the provision of the West Bengal Estates Acquisition Act, 1953 (hereinafter called the ‘Act’). This of course is denied by the petitioner. According to the respondents, the touzis, including the interest of the petitioner, vested in Government by virtue of the said Act and the notifications published under it (under Ss. 4 and 49). Sometime in April 1955, it was discovered by the respondents that one Smarajit Pal Choudhury of Krishnagar was removing sand from the bed and fore-shore of the river Jalangi without permission or without taking any settlement from the Government. On or about the 21st February, 1956, show cause notices were served upon the petitioner and the said Smarajit Pal Choudhury, stating that the bed of the river Jalangi had vested in Government under the Act, free from incumbrances, and yet it appeared that the petitioner had created a lease in favour of Smarajit Pal Choudhury who was removing sand therefrom, which he had no right to do. They were asked to show cause why action should not be taken against them for violating the provisions of the Act. Both the petitioner and Smarajit Pal Choudhury showed cause. It appeared that by an unregistered amalnama dated 16th April 1955, the petitioner had granted a lease to Smarajit Pal Choudhury for removal of sand from the area for 1362 B.S, for a consideration of Rs. 500 only. The petitioner claimed that he was a raiyat under the intermediary R. Pal Choudhury whose estate had vested in the State, but that his own interest as a raiyati Sthitiban tenant had not vested in the State, and he was perfectly entitled to sell sand to Smarajit Pal Choudhury. The matter was thereupon numbered as Misc. Case No. 1083 of 1955-1956 and the Land Revenue Officer proceeded to make enquiries and take legal opinion. He was advised that the proprietor of a T.S.P Estate could not create a non-agricultural tenancy in the foreshore of a river, the control and management of which vested in Government. He therefore decided on 12th March, 1956 that the applicants (meaning the petitioner and Smarajit Pal Choudhury) could not remove sand without obtaining permission and settlement from the State. Smarajit Pal Choudhury thereupon paid Rs. 500/- to Government and on 21st March, 1956 obtained permission to remove sand for 1362 B.S
2. This rule was issued on 6th June 1956, calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing the opposite parties Nos. 1 and 3 to cancel and/or set aside and/or forbear from giving effect to the orders dated 12th March, 1956 and 21st March, 1956 (mentioned above) and for other reliefs.
3. The short point for determination in this case is as to whether, in the facts and circumstances of this case, the interest of the petitioner had vested in the State by virtue of the Act and the notifications issued thereunder. It is conceded that the estate of R. Pal Choudhury, being an interest of an intermediary had vested in the State. The petitioner however urges that his own interest as a raiyati Sthitiban tenant has not vested in the State. The matter has been argued thus, First of all, my attention has been drawn to the definition of an ‘intermediary’ in the Act which means a proprietor, tenure holder, under tenure holder or any other intermediary above a raiyat or a non-agricultural tenant. It is argued that the object of the Act is to abolish intermediate interests and bring the State face to face with the actual tiller of the soil, and my attention is drawn to the provisions of S. 5. Under S. 5(a), the estates and the rights of intermediaries in the estates vest in the State free from all encumbrances up on the due publication of a notification under S. 4, but under S. 5(c) every raiyat or non-agricultural tenant holding under an intermediary shall be bound to pay to the State his rent and other dues in respect of his land, accruing on and from the date of vesting. If we look at the West Bengal Estates Acquisition Act, as it was originally framed, there can be no doubt that this was the scheme propounded by it. The intermediate interests were to be abolished, bringing the State face to face with the tiller of the soil. There was no mention of the acquisition of the raiyat's interest. It was however realized that some persons, even if they were raiyats might not be actually tilling the land, but carrying on cultivation through bargadars etc. Under Chapter VI, such persons were to be treated as intermediaries. Chapter VI as it occurred in the original Act was entitled: “Acquisition of certain khas lands and rent receiving interests”. But Chapter VI did not mention Raiyats or Under-Raiyats as such.
4. It will be remembered that when the idea of acquiring intermediate interests in land by Government was mooted, a conflict arose as to whether such action was covered by Article 31 of the Constitution or whether rights under that article and Articles 14 and 19 were being infringed. To meet this difficulty, Article 31-A was introduced by the Constitution (First Amendment) Act 1951, (18th June 1951) with retrospective effect. Sub-article (2) defined the expressions “Estate” and “Rights in relation to an estate”, but it did not state that it included the interest of a raiyat or under-raiyat. Article 31-A(2)(b) was however, amended by the Constitution (Fourth Amendment) Act 1955, (27-4-1955) with retrospective effect, and “Rights” in relation to an estate now includes any right vesting in a raiyat or under-raiyat. By West Bengal Act 35 of 1955 (25-11-1955) the provisions of Chapter VI were amended. The original heading mentioned above, was substituted by the words, ‘Acquisition of interests of raiyats and under-raiyats”. Under the amended S. 49, the provisions of this chapter were to come into force after the issue of a notification. Notification No. 6804. L. Ref. dated 9-4-56 actually brought the provisions of this Chapter into operation from 10th April, 1956. Sections 50 and 51 were repealed and S. 52 was replaced by a new section which runs as follows:
“52. Application of Chapters II, III, V and VII to raiyats and under-raiyats. On the issue of a notification under S. 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutantis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for the purposes of cls. (c) & (d) of S. 5.”
5. By notification published in the Calcutta Gazette Extra-ordinary dated 13th April, 1956 the Governor of West Bengal declared that in exercise of his powers under S. 4(1) read with S. 52 of the Act all lands held by laiyats or under-raiyats shall vest in the State of West Bengal from 1st Baisakh 1363 B.S It is now argued that this section will only apply where there is an under-raiyat under a raiyat, or a person holding under an under-raiyat, where we are considering the case of an under-raiyat. In other words, the argument is that it is only in case of the raiyat or under-raiyat further letting out his interest, that he can be treated as an intermediary, bringing the lowest tenant in possession and enjoyment of the land, face to face with the State. Where however the Raiyat or Under-raiyat is himself in possession, this section does not apply, because it was not the intention that such lands should be made khas lands of the State. In my view, such a restricted interpretation of this section or of the provisions of chapter VI of this Act is unwarranted. The proper interpretation is that after the amendment, interests of the raiyat and under-raiyat must be treated, “as if”, they were intermediaries. Once they are treated as intermediaries, the provisions of Chapters II, III, V and VII, apply in full force, and the raiyat or under-raiyat cannot claim any preferential treatment. It is next argued that where a raiyat or under-raiyat is in possession actually enjoying the land, he cannot be called an intermediary, because the very name ‘intermediary’ connotes that there is some one down below in the hierarchy of tenants. The answer is that the amendment does not say that they are intermediaries, but applies the relevant provisions of Chapters II, III, V and VII, mutatis mutandis to raiyats and under-raiyats, “as if” they were intermediaries. The significance of such a provision has been pointed out by the Supreme Court in State of Bombay v. Pandurang Vinayak, (1954) SCA 293 : (AIR 1953 SC 244) (A). It was held there that when a statute enacts that something shall be deemed to be, which it is not, the Court is bound to give full effect to the statutory fiction and it should be carried to its logical conclusion. The very fact that it is a deeming provision, shows that the thing is not in fact what it is deemed to be. In other words, we are to consider the fiction and not the fact. See also Income-tax Commr. Bombay v. Bombay Trust Corporation, Ltd., 57 IA 49 : (AIR 1930 PC 54) (B). Thus read, there is no further difficulty in construing the provisions of Chapter VI or of S. 52. It may be true that a raiyat or an under-raiyat in possession, cannot strictly be described as an intermediary. But we are to introduce a fiction and treat them “as if” they were intermediaries. In this role, they cannot get any higher rights than any other true intermediary. They can retain 20 acres or 25 acres as the case may be, as khas lands, if they come within the provisions of S. 6; provided they take appropriate action under the Act. I am however not concerned with that aspect of the question here, because no such claim has been put forward.
6. It is next argued that S. 52 of the Act, in so far as it seeks to affect the interests of a raiyat or under-raiyat, who is not an intermediary, is ultra vires, inasmuch as it is not covered by Article 31-A(2)(b) of the Constitution. In order to understand this argument, it will be necessary to consider the wordings of it, which runs as follows:
“The expression “rights”, in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure holder (raiyat, under-raiyat) or other intermediary and any rights or privileges in respect of land revenue.”
7. It is argued that the words “or other intermediary” shows that the only instance when the rights of a raiyat or an under-raiyat will be covered by this provision, is when they hold as intermediary and not otherwise. This view appears to be supported by a divisional bench judgment of the Allahabad High Court, Ajab Singh v. State of U.P, AIR 1957 All 153 (C). It was held there that the words “other intermediary” in Article 31-A(2)(b) of the Constitution points to the conclusion that the proprietor sub-proprietor, under-proprietor, tenure-holder, raiyat and under-raiyat, mentioned in that sub-article are persons who must be intermediaries and not tenants cultivating the land, and that the words ‘tenure-holders” as used in that clause must be interpreted in that sense, and unless a person is shown to be a tenure holder within the meaning of that expression in Article 31-A, that article cannot save Clause (ee) of Section 14 of the U.P Consolidation of Holdings Act or the rules framed thereunder, under which lands of tenure holders are taken away for purposes of public utility without payment of compensation. With great respect I am unable to agree with this view. In my opinion, the provisions of Article 31-A(2)(b) as they stand at present, enable the acquisition of the entire interest of raiyats and under-raiyats, in the same manner as a true intermediary. The position may be summarized as follows:
1. In the objects and reasons to the fourth amendment, it has been clearly stated that whereas the abolition of Zemindari and the numerous intermediaries between the State and the tiller of the soil had been achieved, the next objective was to extend the scope of S. 31-A so as to modify the rights of tenants in agricultural holdings and to fix the limits of such land that can be held by any person. It is clear therefore that the fourth amendment did not intend that raiyats or under-raiyats should any longer be treated differently from true intermediaries. The objects and reasons cannot be referred to, for interpreting a statute, but for ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. State of West Bengal v. Subodh Gopal Bose. AIR 1954 SC 92 (D)’; T.K Musaliar v. Venkatachalam, (S) AIR 1956 SC 246 at p. 265 (E).
2. Article 31-A, enables ‘Any’ estate or, ‘Any’ right to an estate to be acquired by the State. In view of this it is not permissible to interpret sub-Art. (2)(b) in a limited manner. It is a possible interpretation to say that the Constitution has declared raiyats and under-raiyats to be intermediaries, although they are not true intermediaries. After all, the word “intermediary” is not defined in the Constitution, and a constitution must be liberally construed.
3. The principle of ejusdem generis cannot be applied because the persons or classes of persons enumerated before, do not belong to the same genus. Thus, proprietors are a class widely different from tenure holders, who in turn are quite different from raiyats or under-raiyats. (See definitions in the Bengal Tenancy Act, S. 5(1) and (2)).
4. In India and particularly West Bengal, the majority of raiyats and under-raiyats, are in actual possession of the land and only in rare cases, they sub-let their holdings. It could not have been the intention of the framers of the Constitution to enable only such rare cases to come within the purview of State acquisition, leaving the majority of cases unaffected.
5. In India, the word “proprietary right”, for purposes of revenue is loosely used, and includes not only the actual proprietor but also the tenants. See Baden-Powell in Land Systems' of British India Vol. I Page 217.
8. For the reasons aforesaid, I hold that section 52 of the Act is not ultra vires, in so far as it includes the rights of a raiyat who is not a true intermediary, but is in actual possession of the land. Next it is argued that the interests of the raiyat or the under-raiyat vested in the State on or after Baisakh 1363 (April-May 1956) but the notices were issued in February 1956. This is a fact. But then, on or after, Baisakh 1363, the interests of the petitioners have vested in the State, and it would be futile to interfere now. The giving of a notice by the Assistant Collector is not the foundation of vesting.
9. Lastly, there appears to be a further difficulty in the way of the petitioner. In the affidavit in opposition, it has been stated that the transfers by R. Palchaudury to his two employees Shibapada and Mafassil, and by them to the petitioner, are all Benami transactions, meaning thereby that they are no transfers at all, but transactions entered into fraudulently in order to defeat the provisions of the Estates Acquisition Act. The learned advocate of the petitioner argues that in such a case, the respondents should have taken steps under S. 5-A of the Act, and the matter could not be decided, as it has been done, by the L.R.O or the A.D.M without following the procedure laid down in that section. But the short answer to that is that S. 5-A of the Act does not cover or contemplate the case of a benami transaction, but of a transfer which is not bona fide. A benami transaction is no transfer at all, the title remaining where it always did. I cannot see how this disputed question of benami can be settled except by way of a suit.
10. For these various reasons, this application fails and must be dismissed. The rule is discharged, all interim orders vacated.
11. There will however be no order as to costs.
M.K.S
12. Application dismissed.