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Sm. Gayatri Bala Ghosh and anr. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberFull Bench Reference No. 1 of 1976 in A.F.O.O. No. 463 of 1974
Judge
Reported inAIR1980Cal161
ActsWest Bengal Estates Acquisition Act, 1954 - Sections 5A, 5A(1), 49 and 52
AppellantSm. Gayatri Bala Ghosh and anr.
RespondentThe State of West Bengal and ors.
Appellant AdvocateKanan Kumar Ghosh and ;Dilip Kumar Sett, Advs.
Respondent AdvocateNarnarayan Gupta, Govt. Pleader and ;Jamini Kumar Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredRafiquennessa v. Lal Bahadur Chetri
Excerpt:
- .....1953 but before the 10th of april, 1956 which is the date on which chapter vi of the west bengal estates acquisition act, 1953, came into force as provided in the notification made under section 49 of the said act hit by section 5a of the said act?'3. the appellant no. 1 purported to sell 12.81 acres of land to her brother, amal kumar roy. on the 31st march, 1956. on this date she also executed a registered deed of gift in favour of her son, shri asit kumar ghose, in respect of 9.44 acres of land.4. the revenue officer started an enquiry under section 5a of the west bengal estates acquisition act, 1953 as to the bona fides of the transfer. by his order dated the 15th november, 1957 in case no. 287/1, the revenue officer declared that the transfers were not made bona fide.5. the.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This reference has been made by a Bench consisting of S. K. Mukherjea and Sudhamay Basu, JJ. under Chapter II, Rule 1, Sub-rule (ii) of the Appellate Side Rules.

2. The question referred to us is as follows:

'Are transfers made by raiyats after the 5th day of May 1953 but before the 10th of April, 1956 which is the date on which Chapter VI of the West Bengal Estates Acquisition Act, 1953, came into force as provided in the notification made under Section 49 of the said Act hit by Section 5A of the said Act?'

3. The appellant No. 1 purported to sell 12.81 acres of land to her brother, Amal Kumar Roy. on the 31st March, 1956. On this date she also executed a registered deed of gift in favour of her son, Shri Asit Kumar Ghose, in respect of 9.44 acres of land.

4. The Revenue Officer started an enquiry under Section 5A of the West Bengal Estates Acquisition Act, 1953 as to the bona fides of the transfer. By his order dated the 15th November, 1957 in Case No. 287/1, the Revenue Officer declared that the transfers were not made bona fide.

5. The appellant No. 1 and Amal Kumar Roy preferred an appeal under Section 5A(2). But the appeal was dismissed and the Special Judge, 24 Parganas, on the 12th February, 1970, affirmed the Revenue Officer's order.

6. The appellants made an application under Article 226 of the Constitution to this Court. A Rule was issued. By his judgment delivered on the 22nd August, 1973 Chittatosh Mookerjee. J. discharged the Rule.

7. An appeal was preferred against the said judgment. That appeal came up for hearing before S. K. Mukherjea and Sudhamay Basu, JJ. and was heard by their Lordships on the 8th, 12th, 13th and 14th May, 1975. By their Lordships' judgment delivered on October 3, 1975, the present reference was made.

8. In the referring order to the Full Bench various conflicting decisions of this Court as well as some decisions of theSupreme Court have been referred to. It would not be necessary to discuss the effect of these decisions. It appears that the attention of the Division Bench was not drawn to a Special Bench judgment in Sk. Bafatulla Mukhtear v. State of West Bengal, (1973) 77 Cal WN 171. Had this judgment been placed before the Division Bench perhaps no reference would have been made at all. Subsequently, there has been another Special Bench judgment in the State of West Bengal v. Sailendra Kumar Sen, : AIR1977Cal251 . Both the Special Bench judgments were delivered by our learned brother S. K. Datta, J. and I was a party to the second judgment.

9. We adopt the reasonings advanced in these two judgments and the conclusions reached therein. But for the sake of convenience we may refer to the relevant provisions of the statute we are called upon to interpret.

10. The preamble to the West Bengal Estates Acquisition Act, 1953, is that it is 'An Act to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats and of the rights of certain other persons in lands comprised in estates'.

11. Section 2 defines an intermediary. An '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 a sub-lessee'.

12. It is to be observed that in the definition of intermediary a raiyat has not been included. A person above a raiyat may be an 'intermediary' but raiyat is not an 'intermediary'.

13. Then, we come to Section 5A(1) which runs thus :

'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 day of 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.'

14. The reason why the date mentioned in Section 5A(1) is the 5th of May, 1953 is that the bill, namely, the West Bengal Estates Acquisition Bill, 1953 was signed by the Minister-in-Charge on the 4th of May, 1953 and was introduced into the State Legislative Assembly on the 5th of May, 1963.

15. Then we come to Section 5B which has been held to be valid and intra vires by the second Special Bench judgment we have referred to above. This section lays down:

'On and from the 1st day of June, 1954, no estate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1897 or the Bengal Patni Taluks Regulation, 1819, or the Bengal Tenancy Act. 1885, as the case may be, and any sale which took place on or after that day under any of those Acts or that Regulation shall be deemed to have been void and of no effect. .... ..... .... ....'

16. Next we come to the most vital sections for the purpose of this reference. These are Sections 49 and 52. Both the sections are in Chapter VI of the Act which deals (with) 'Acquisition of interests of raiyats and under-raiyats'. Section 49 is in these terms:

'The provisions of this Chapter shall come into force on such date and in such district or part of a District as the State Government may, by notification in the Official Gazette, appoint and for this purpose different dates may be appointed for different districts or parts of district.'

This section requires, therefore, a notification in the Official Gazette appointing the date on which the provisions of Chapter VI shall come into force and the areas in which such provisions shall become operative.

17. We now set out Section 52 which prescribes:

'On the issue of a notification under Section 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyat 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 purpose of Clauses (c) and (d) of

Section 5: .... ..... .... ....'

Chapters II, III, V and VII are chapters which have made provisions for (a) acquisition of estates and of the rights of intermediaries therein (b) assessment and payment of compensation, (c) preparation of record-of-rights, and (d) supplemental and miscellaneous matters respectively.

Section 5 is in Chapter II which deals with the effect of a notification.

18. Section 52, it is clear, is a deeming provision. The effect of such clauses in a statute was explained by Lord As-quith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132 in these words:

'If you are bidden to treat an Imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it..... The statute says that youmust imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

19. The Judicial Committee also in Commr. of Income-tax, Bombay Presidency and Bombay Trust Corporation Ltd., (1930) 57 Ind App 49 at p. 55 has interpreted the effect of the words 'deemed to be' in a statute. The Judicial Committee says :

'Now when a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.....'

20. If we apply the above principles to Section 52 of the West Bengal Estates Acquisition Act, 1953 the result is that on the issue of a notification under Section 49, although a raiyat or an under-raiyat is not in reality an intermediary, the Act requires him to be treated as an intermediary and the inevitable corollaries of being an intermediary under the provisions of the said Act would be attracted to him to the extent indicated in Section 52.

21. The extent indicated is that on the issue of a notification under Section 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats. These provisions have been construed in Haranath Ghosh v. State of West Bengal, (1963) 67 Cal WN 129, thus:

'The words 'mutatis mutandis', following the word 'modification' make it abundantly clear as to the modifications intended under Section 52 of the Act. In other words, the word 'modification' 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 provisionsand effects of those chapters. The con-textual adaptation is only intended to make these chapters applicable to the case of raiyats and under-raiyats.....'

22. The above view has been accepted by the Special Bench in the case of the State of West Bengal v. Sailendra Kumar Sen, : AIR1977Cal251 at p. 254 in para. 18.

23. Mr. Kanan Kumar Ghosh, learned counsel for the appellants, has argued before us that upon notification under Section 49, Chapter VI came into force. This notification was made on the 9th April, 1956. Chapter VI came into force on the 10th April, 1956. The moment Chapter VI came into force raiyats were deemed to be intermediaries for certain purposes. In other words, by a legal fiction raiyats were to be deemed to be intermediaries for those purposes on and from the 10th of April, 1956. This, according to Mr. Ghosh, is the plain meaning of Section 52. It is an exproprie-tary legislation affecting vested rights and accomplished transactions. It must be construed strictly and any transaction made before the 10th of April, 1956 cannot be touched by reason of the previsions of Section 52.

24. We are unable to accept this argument. In answer to the points raised by Mr. Ghosh we will quote below the observations made in paragraphs 24, 26 and 27 of the Special Bench judgment in the State of West Bengal v. Sailendra Kumar Sen, : AIR1977Cal251 and 255. These paragraphs are as follows :--

'24. Chapter VI which provides for acquisition of interests of raiyats and under-raiyats, was brought into force in all districts of West Bengal with effect from April 10, 1956 by notification No, 6804 L Ref. dated April 9, 1956 as provided in Section 49. On the issue of notification, provisions of Chapters II, III, V and VII applied with modifications mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the lands held by them were estates. As a result, provisions of Sections 4, 5-A and 5-B which were included in Chap. II became applicable to raiyats and under-raiyats in respect of the lands held by them with effect from April 10, 1956 and interest of the raiyats and under-raiyats thereupon vesting in the State.....'

'26. As has been recognised in judicial decisions the legislature is undoubtedly competent to take away vested rights bymeans of retrospective legislation. Unless however a clear and unambiguous intention is indicated by legislature by adopting suitable and express words in respect thereof no provision of a statute should be given retrospective operation if thereby vested rights are affected. The Supreme Court in Rafiquennessa v. Lal Bahadur Chetri, : [1964]6SCR876 , added that a statutory provision is held to be retrospective either when it is so declared by express terms or the intention to make it retrospective clearly followed from the relevant words and the context in which they occur.'

'27. In the case before us, by reason of the provisions of Section 52, there was. as held in Ambujakhya's case 1LR (1966) 1 Cal 495, a contextual adoption of the provisions of Section 5-B to raiyati and under-raiyati holdings in express, clear and unambiguous language. It is accordingly not possible for the Court to fix another date in Section 5-B which would be in direct contravention of the provisions adopted by the legislature.....'

25. On the same reasoning, although Section 52 came into force on the 10th of April, 1956, by reason of the language used in Section 52, Section 5A(1) was immediately attractetd to raiyats and under-raiyats and the State Government was entitled to reopen transfers made by them between the 5th of May, 1953 and the 10th of April, 1956 if in the opinion of the State Government there were reasons for believing that the transfers were not bona fide.

26. For all the reasons aforesaid, our answer to the question is in the affirmative. We therefore agree with the conclusion reached by Chittatosh Mookerjee, J. in his Lordship's judgment delivered on the 22nd August, 1973 and dismiss this appeal. Interim orders, if any, are vacated. There will be no order as to costs.

Deb, J.

27. I agree.

S.K. Datta, J.

28. I agree.


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