Haranath Ghosh v. State Of West Bengal And Ors.

2. This is an application under Article 226 of the Constitution directed against the finding of the Assistant Settlement Officer confirmed in appeal by the Special Judge that the transfer which the petitioner took from his mother is hit by section 5A of the West Bengal Estates Acquisition Act, 1953. The petitioner has taken a number of points. Some of these points are already covered by certain authorities while other points are more embarrasing than helpful for the petitioner.

3. To appreciate the petitioner's challenge in this case it is necessary to summarise his main contentions before me. His first contention is that the lands in question are governed by the Bengal Waste Lands Rules. Here he is between the two horns of a dilemma. If he is governed by the Bengal Waste Lands Rules then these lands being settlements in Jalpaiguri in western Duars could only be the subject of a lease in Form A under Rule 13 of Chapter IV of the Bengal Waste Lands Manual. But then clause 5 of Form A of the lease definitely enjoins “You shall not transfer your right or any share or interest in the lands of your jote or any part thereof by sale, gift, mortgage or otherwise, except with the sanction of the Deputy Commissioner previously obtained in writing”. It is common ground that the mother's transfer to the petitioner in this case was without sanction of the Deputy Commissioner. If that be so then there is no lawful lease or grant or transfer or sale in favour of the petitioner. In that event the petitioner has no “legal right” on the basis of whose breach he can move this Court under Article 226 of the Constitution. The transfer is prima facie in violation of law and covenant and the petitioner is out of Court at once. Therefore, he shifts his ground of challenge and says that section 5A of the West Bengal Estates Acquisition Act does not apply to his case because these lands are Government khas mahal lands and are outside the purview of the West Bengal Estates Acquisition Act, 1953. The gist of this argument in its interesting form is that the Government has always been regarded as the owner of Khas Mahal lands ever since the days of the Permanent Settlement under Lord Cornwallis. The argument is that the West Bengal Estates Acquisition Act was not intended to apply to Government Khas Mahal lands and applies only to the lands which were vested in the Zemindars. The point so stated in bald terms has its attraction but when analysed loses its substance.

4. I shall now proceed with that analysis. Section 4 of the Act speaks of the notification of the State Government vesting not only “estates” but also “rights of every intermediary” in such an estate. The significant words in that section for the purpose of this application are:

“…………. all estates and the rights of every intermediary in each such estate……….. shall vest in the State free from all incumbrances…………”

5. Now the position has to be determined with reference to the words “estates” and the “rights” of every intermediary. “Estate” is defined by section 2(f) of the West Bengal Estates Acquisition Act to include part of an estate. That means that the ‘estate’ is not actually defined by the Act. But section 2 (p) of the Act which provides that the expressions used in this Act and not otherwise defined have in relation to the areas to which the Bengal Tenancy Act, 1885, applies, the same meaning as in that Act. Naturally we have to travel through the Bengal Tenancy Act for the definition of the ‘estate’. Section 3(4) of the Bengal Tenancy Act of 1885 says:

“Estate” means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government Khas Mahals and revenue-free lands not entered in any register.”

6. The express reference to Government khas mahals and revenue-free lands in the statutory definition makes it quite clear that the ‘Estate’ includes Government khas mahals and revenue-free lands. Therefore, the first part of the petitioner's argument breaks.

7. The question then is what does the expression ‘intermediary’ mean in section 4 of the West Bengal Estates Acquisition Act. The definition of an ‘intermediary’ is to be found in section 2(i) of the West Bengal Estates Acquisition Act where it is stated:

“‘intermediary’ means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and in relation to mines and minerals, includes a lessee and sub-lessee.”

8. That indicates that the intermediary inter-alia means a proprietor. Now who is a proprietor under the West Bengal Estates Acquisition Act? Obviously the State has now in fact become the proprietor of most of the land in the State. The word ‘proprietor’ is not defined by the West Bengal Estates Acquisition Act. It is, however, defined in section 3(11) of the Bengal Tenancy Act, 1885 saying

“proprietor means a person owning, whether in trust or for his own benefit, an estate or a part of an estate.”

9. It follows, therefore, that ‘proprietor’ means a person owning an estate or part of an estate. As an ‘estate’ includes khas mahal lands and revenue-free lands, already indicated above the Government comes within the meaning of the “proprietor”. But then it is said by the learned Advocate for the petitioner that the Government is not a person under the General Clauses Act. It is not necessary to decide whether the Government is a person or not and it is enough to state here that in the context of the Government ownership the Government can be a proprietor within the meaning of the definition of ‘proprietor’ under section 3(11) of the Bengal Tenancy Act which incidentally says that the definition will apply unless there is something repugnant in the subject or context. I find nothing repugnant in the subject or context to hold that the Government is a proprietor even if it is not technically “a person”. Although the definition of a person under the General Clauses Act includes not only any Company but also any association or body of individuals, whether incorporated or not, I would be prepared in the context of the West Bengal Estates Acquisition Act read with Bengal Tenancy Act as aforesaid to extend the meaning of a person to include the Government. The definition of Central Government and the Provincial Government in General Clauses Act do not also rule out inclusion of “the authority or person authorised” to administer executive Government.

10. Even independently of this aspect of the problem, ‘intermediary’ means a tenure-holder. The petitioner is such a tenure-holder because he is now under terms of a lease or settlement from the Government, as the owner or proprietor of the Khas mahal lands. In fact in ground VI of the petition he himself asserts that he is a “raiyat”. If he is a raiyat now he is no longer an “intermediary above a raiyat” in section 2(i) of the Act because all intermediaries have been abolished by the Act. The argument of the petitioner that an intermediary under the West Bengal Estates Acquisition Act does not include a lessee under the Government is difficult to uphold because of the express definition and meaning of the word ‘raiyat’ under section 5(2) and (3) of the Bengal Tenancy Act. There under that definition a ‘raiyat’ means primarily a person who has acquired a light to hold land for the purpose of cultivating it by himself, or by members of his family, or by servants or labourers, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. Under section 5(3) of the Bengal Tenancy Act a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder. Having regard to the fact that the petitioner is holding land under the Government who is now the proprietor it is not difficult to why the petitioner himself asserts that he is a raiyat under the Government.

11. This disposes of the first contention of the petitioner. I therefore hold that section 5A of the West Bengal Estates Acquisition Act, 1953 applies to khas mahal lands.

12. The next objection of the petitioner is that section 5A of the West Bengal Estates Acquisition Act is ultra vires the Constitution. This argument is advanced on many fronts. In the first place, it is said that under section 5A of the Act the Government “may” inquire. It is therefore said that the word ‘may’ gives power of discrimination to the Government and the Government may abuse its power of enquiry. It may favour a person where enquiry should be made by not making the enquiry, and may harass a person where enquiry should not be made, by making an enquiry. It is said that such abuse of the right of enquiry being discriminatory will be unconstitutional. The short answer to this point is that any particular act of such abuse will be struck down by the Court if the Court finds that there has been in fact any actual abuse of the right of enquiry in a particular case. Again perhaps another answer is that the word “may” Here is “must”, if in the opinion of the Government there are prima facie reasons for believing that the impugned transfer was not bona fide. If the Government comes to hold that opinion that the transfer is not bona fide then in that case the word “may” in section 5A of the Act can only mean “must”. The word “may”, therefore; is used in section 5A for the simple reason that it gives permissive power to enquire on condition that there is a prima facie reason to believe that such transfer is not bona fide and that the Government comes to hold that opinion in the case of the particular transfer. It is only then that an enquiry is to be made and not in other cases. Here under the very statute itself in sub-section (7) of section 5A of the Act the transfer is statutorily “presumed to be not bona fide until the contrary is proved”, because the transfer was made between mother and son within the period from the 5th day of May, 1953 and the date of vesting.

13. It is then said that section 5A of the Act is unconstitutional because it gives excessive and unguided delegation to the State Government and is unreasonable and is in breach of both Article 19(1)(f) of the Constitution as well as Article 14 of the Constitution. In support of this argument reliance is placed on a Division Bench decision of this Court in (1) Khagendra Nath De y. The District Magistrate of West Dinajpur, reported in 55 C.W.N 53. There section 38 of the West Bengal Security Act (Act 19 of 1950) was declared to be ultra vires. But that case does not help the petitioner because section 38 of that impugned statute was materially different from section 5A of the West Bengal Estates Acquisition Act. section 38 of the West Bengal Security Act empowered the State Government to direct by notification that any power or duty conferred or imposed by that Act upon the State Government shall in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also by any officer or authority subordinate to the State Government. Harries, C.J, in delivering judgment of the Division Bench observed at page 59 as follows:

“It appears to me that a section which entitled Government to delegate its powers to any officer subordinate to it irrespective of whether that officer is fit to make such orders is to my mind a procedure which is wholly unreasonable and that being so, the Court must hold that sec. 38 is ultra vires as being beyond the powers given to the State by Cl. (5) of Art. 19 of the Constitution.”

14. The crucial and significant part of that observation to my find is whether the delegation is irrespective of whether the officer is fit to make such orders and it was possible under section 38 of the West Bengal Security Act as couched in the language it used, to delegate the power to any officer even to a Sub-Inspector or a Havildar. But not so is the case here. Here section 5A(4) of the West Bengal Estates Acquisition Act uses the following words:

“The State Government may delegate all or any of its powers under this section to such officer in its service as it may deem fit.”

15. Therefore, it follows that the State Government must consider the officer to be fit for such delegation. It is, therefore, not an uncontrolled delegation. That the fitness of the Officer is to be judged by the State Government is no ground for holding that the provision is constitutionally unreasonable or excessive. The State Government is a responsible Government and it can be trusted to make its decision as to the fitness of the officer to whom the powers are intended to be delegated. Indeed the position is now made abundantly clear by the Supreme Court in (2) Virendar v. State of Punjab, reported in A.I.R 1957 S.C 896 where the two following observations of the learned Chief Justice of India at page 901 exactly answer the objection raised by the petitioner in this case on the point:

“(1) It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegation.”

“(2) No assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of power.

16. In the context particularly of the West Bengal Estates Acquisition Act section 5A(1) or (4) cannot be challenged as unconstitutional violation of either Article 14 or Article 19 of the Constitution, not only for the reasons stated above but also by reason of the context which that Act provides in sections 53, 54 and 55 of the Act. Section 53 describes the Authorities for the purposes of this Act. Section?? of the Act deals with delegation of powers by the State Government. It is provided there the State Government may, by notification in the official gazette, delegate any of the powers under this Act, except the power of making rules under section 59 to the Board of Revenue, the Commissioner of a Division or a Collector subject to such reservations, if any, as may be specified in the notification. Then section 55 provides that the State Government may appoint Special Judges not below the rank of a District Judge for the purpose of sub-section (6) of section 5A of the Act. Now section 5A (6) of the Act gives a right of appeal to an aggrieved person against an order passed by the State Government under an enquiry made under sub-section (2) or sub-section (3) or sub-section (4) of section 5A. That is a control and a safeguard. Here in this case the Assistant Settlement Officer and the Special Judge who is a District Judge answered the requirements of sections 53 and 55 read with section 5A of the Act. In this context of statutory provisions of specified persons and specified authorities with right of appeal given under the statute, I am satisfied that the provisions of delegation under section 5A are not unconstitutional nor are they excessive delegation.

17. It is next contended on behalf of the petitioner that Chapters II, III, V and VII of the West Bengal Estates Acquisition Act apply to raiyats and under-raiyats only by virtue of section 52, of the West Bengal Estates Acquisi-tion Act and that section 52 of the West Bengal Estates Acquisition Act is ultra vires the Constitution. The reasons for this argument are that the words “such modification as may be necessary” are vague and they do not guide or control the limits within which such modifications are to be made. It is contended that section 52 of the Act does not say who is to make such modification and what are the limits of such modification. This section has been held to be not ultra vires in (3) Ananta Kumar Dutta v. Land Revenue Officer, reported in A.I.R 1958 Calcutta, 143, but on other grounds than those canvassed before me. I shall therefore give my own reasons for coming to the same conclusion to meet the arguments advanced before me.

18. This argument suffers from a falla-: cy in assuming that the word “modification” is a kind of suspending power of the provisions of the statute. I do not construe the word “modification” to mean in this context of section 52 of the Act that the actual substantive provisions of the statute are to be modified. What is intended to be mo-dified is not the substantive provisions of Chapters II, III, V and VII of the Act but that in so far as they may not have applied to raiyats and under-raiyats they should be made applicable. Chapter II of the Act deals with the acquisition of estates and of the rights of intermediaries therein. Chapter III deals with the assessment and payment of compensation. Chapter V deals with the preparation of record-of-rights and Chapter VII deals with the miscellaneous and supplementary provisions of the Act including the Authorities for the purposes of this Act, delegation undrr the Act and appointment of Special Judges and Tribunals etc. The words “mutatis mutandis” following the word “modifications” make it abundantly clear as to the modification intended under section 52 of the Act. In other words the word “modifications” in section 52 of the Act means contextual adaptation of these chapters of the Act to the case of raiyats and under-raiyats and not amendment of the substantive provisions and effects of those chapters. The contextual adaptation is only intended to make these chapters applicable to the case of raiyats and under-raiyats, which without the modification might not have been applicable to the case of raiyats and under-raiyats. In (4) Ratnakar v. State of West Bengal, reported in 66 C.W.N 405 at page 411 the words “with such modifications” and “mutatis mutandis” have been held to be tautological. In the light of the view that I have expressed it is not necessary to hold that it is tautological, but mutually explanatory and used ex-abundanti cautela.

19. The last objection raised on behalf of the petitioner is that in this case Rule 3A of the West Bengal Estates Acquisition Rules, 1954, has not been complied with. In order to appreciate this objection it is necessary to have before us this Rule which is set out below:—

“The procedure for enquiry under sub-section (1) of section 5A shall be as follows:—

20. Where in the opinion of the State Government or of any officer in its service to whom its powers under sub-section (1) of section 5A may be delegated, there are prima facie reasons for believing that transfer of any land made by an intermediary between the 5th day of May 1953 and the date of vesting is not bona fide the State Government or such officer may record a formal order to that effect.”

21. The argument on behalf of the petitioner on this point is that the officer who formed the opinion was not the officer who held the enquiry in this case as required by the Rule above and, therefore, the proceedings and the enquiry should be set aside. The basis of this argument is that under the Act the same officer who formed the said opinion and records the order in pursuance thereof has to conduct the subsequent enquiry.

22. This argument suffers from two defects—one of fact and the other of law. The defect of fact is that the order of the Assistant Settlement Officer dated the 8th December, 1956 against which the present complaint is made does no support the assumption made in this argument that the person who formed the opinion and the perscn who conducted the enquiry are different. In fact the order of the 8th December, 1956 shows the contrary. It is the same person Sri S.N Bose, the Assistant Settlement Officer who conducts the enquiry and forms his opinion. Not a word is to be found in his order which is brief and well-reasoned to suggest that he relied on any opinion of any other officer or the report of any enquiry of any other officer. Therefore, the facts do not justify this objection in the present case.

23. On the legal interpretation also this argument cannot succeed. Section 5A(1) of the Act says that the State Government may enquire if in its opinion there are prima facie reasons for believing that the transfer Was not bona fide. It is not said in that sub-section that the opinion of the State Government must be by a particular person and the subsequent enquiry must be by the same person. The sub-section itself does not impose such limitations. Section 5A(4) of the Act says that 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. This sub-section also does not make or provide for any limitation that the opinion formed in sub-section (1) must be by the same person who is to enquire under delegation in sub-section (4). The opinion is only limited to the short ground of the existence of “prima facie reasons for believing that such transfer was not bona fide”. This is only a prima facie opinion. The enquiry is to be conducted by the enquiring officer who may come to the conclusion that what was prima facie is not correct and the transfer was bona fide. Indeed the person holding the prima facie opinion rather should be different from the person making the enquiry so that no prima facie opinion formed by him can influence his subsequent enquiry to find the fact whether the transfer was bona fide or not. If the officer forming the opinion is different from the officer forming the enquiry it is more for the benefit of the petitioner and for his greater protection. If it is said that if the prima facie opinion was in favour of the petitioner then the argument stultifies itself for the simple reason that if the prima facie opinion is that it was bona fide transfer then the Statute does not permit an enquiry under sub-section (1) of section 5A of the Act. It is only when the opinion is that there exists prima facie reason to believe that the transfer is not bona fide that an enquiry is started. From this point of view the person conducting this subsequent enquiry better be a different individual. That means not prejudice to but rather protection for the petitioner.

24. In the light of the above construction Rule 3A of the West Bengal Estates Acquisition Rules must be read. The heading of that Rule is “Procedure for enquiry under section 5A (1)”. That means that it is the procedure in the enquiry not for forming the opinion which is prima facie. This Rule is not the procedure for forming the ‘opinion’. This Rule is for the procedure of the “enquiry” Therefore, the word “such officer” in Rule 3A quoted above means the officer to whom power to enquire is delegated and not the power to form a prima facie opinion. Therefore, the word ‘such officer’ means “any officer” in its service to whom its powers under section 5A(1) may be delegated.

25. The Rule is, therefore, discharged and the application is dismissed.

26. There will be no order as to costs.

27. This judgment governs the connected Rule No. 4073 of 1960, for which no separate judgment is called for as it covers the same points determined and disposed of by this judgment. In other words, for reasons stated in this judgment, Rule No. 4073 of 1960 is also discharged without costs.

S.K.B