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TMI Blog1994 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the West Bengal Estates Acquisition Act in the year 1961. His father Brojo Gopal had gifted away 3.79 acres of land in favour of the writ Petitioners Nos. 2 and 3, the sons of the Petitioner No. 1, under a registered Deed of Gift dated August 26, 1961. Bhibuti Bhusan, the Petitioner No. 1, as well, had transferred 12.43 acres of land in their favour under a Nirupan Palra dated March 23, 1964. The names of the Petitioners Nos. 2 and 3 had accordingly been duly mutated in respect thereof under the Mutation Case No. 145(1) of 1973-74, and they had thereafter paid rents to the State Government accordingly. 3. The family of Bhibuti Bhusan, as on February 15, 1971, consisted of himself, his wife, and five unmarried daughters. His two sons, the Petitioners Nos. 1 and 2, who were then adult and married, having lands by virtue of the Deed of Gift and the Deed of Nirupan Patra executed in their favour by their father and grandfather, as stated above, had been excluded from his (Petitioner No. l's) family. 4. The Revenue Officer concerned had suo motu initiated a proceeding against the Petitioner No. 1 under Section 14T(3), read with Sections 14M and 14S of the L.R. Act, in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to be rejected by the officer concerned. He had finally disposed of both the proceedings on the basis of the report of Field Enquiry treating the aforesaid two transfers as Bcnami/paper transactions in favour of the Petitioners Nos. 2 and 3 without any physical transfer, and had treated all the lands to be belonging into the Petitioner No. l, Bhibuti Bhusan, who was allowed to retain 17.30 acres of land and the remaining lands were directed to be vested with the State. 7. The Appellants had moved the writ petition on July 8, 1991, before a Single Bench of this Court, disposed of on the same very day by directing the Petitioners to prefer an appeal to the Appellate Authority with liberty to urge all the points taken in the writ petition. 8. It was contended by the Petitioners-Appellants that the relevant transfers in favour of the Petitioners Nos. 2 and 3 had taken place before August 7, 1969 and their names had duly been recorded in the relevant records-of-rights. The lands transferred to them are in their actual possession. The Revenue Officer was as well very much aware of the aforesaid transfers in their favour. It was wrongly recorded during the Field Enquiry that the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List. 11. Let us now turn to the provisions of Section 14T(5) of the L.R. Act and Section 4 of the B.T.P. Act which read as follows: Section 14T(5) The Revenue Officer, on his own motion or upon any information, may, after giving the persons interested an opportunity of being heard, enquire and decide any question of benami in relation to any land and any question of title incidental thereto or any interest therein or any matter or transaction made, on being satisfied that .such enquiry and decision are necessary for the purpose of preparation, correction or revision of record-of-rights and all matters incidental or consequential thereto or detection and vesting of surplus land over the ceiling area. Section 4 Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amendment Act of 1981 did not touch the non-agricultural land. A non-agricultural tenant or under-tenant could thus enjoy the feudal privilege of having a tenant under him. Upon a general demand to streamline the enactment to encompass non-agricultural lands as well, the West Bengal Land Reforms (Amendment) Act, 1981, had been enacted to cover all types of lands thereunder. The L.R. Act, as it now stands after the aforesaid Amendment Act of 1981, thus covers all types of lands, including Agricultural land, which does not appear to be covered by the B.T.P. Act. That being so, if the subject-matter of legislation comes within Entry No. 6 of the Concurrent List then Article 254(2) of the Constitution would prevail so far as the transaction relates to non-agricultural land and the authority of the Revenue Officer to find that a transaction so far as it relates to non-agricultural lands as benami is intra vires. But if the subject-matter of legislation is covered by Entry No. 18 of the State List then the B.T.P. Act cannot touch agricultural land. Article 254(1) of the Constitution would then prevail and the power of the Revenue Officer to hold a transaction as benami so far as it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of repugnancy under Article 254 of the Constitution could arise where Parliamentary Legislation and State Legislation occupied different fields and dealt with separate and distinct masters even though of a cognate and allied character, and that where, as in the present case, there was no inconsistency in the actual terms of the acts enacted by Parliament and the State Legislature, the test of repugnancy would be whether Parliament and the State Legislature in legislating under an entry in the Concurrent List, exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be exhaustive so as to cover the entire field. 19. The Court had further held in M. Karunanidhi v. Union of India A.I.R. 1979 S.C. 896 that repugnancy between a law made by a State and by Parliament may result where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable. The Supreme Court had further held in the decision in Raghbir v. State of Haryana A.I.R. 1981 S.C 2037 (2040, Para. 10) that one of the circumstances under which repugnancy between the law made by the State and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislated in a forbidden sphere. Hence, the rule which has been evolved by the Judicial Committee whereby the impugned Statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that. This dictum was expressly approved and applied by the Judicial Committee in Prafulla Kumar v. Bank of Commerce Ltd., Khulna 74 LA. 23 : A.I.R. 1947 P.C. 60, and the same view has been expressed by this Court on more than one occasion. It is equally well-settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. 23. The Supreme Court has also echoed in the same voice in the Kerala State Electricity Board v. Indian Aluminium Co. ( Supra) that for deciding under which entry a particular legislation falls the theory of 'pith and substance' has been evolved by the Courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject-matter of that legislation incidentally tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law-made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State. 28. The Supreme Court in Zaverbhai Amaidas v. State of Bombay A.I.R. 1954 S.C. 752 has held that the important thing to consider with reference to Article 254(2) is whether the legislation is 'in respect of the same matter'. If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882. 32. In line with the aforesaid decision of the Supreme Court, a Single Judge of our High Court in Sambhunath Pal v. The State of West Bengal and Ors. 87 C.W.N. 695 has held that the word 'Benami' is used to donote two classes of transactions which differ from each other in their legal character and incidence. In one sense, it signifies a transaction which is real. Such a sale is genuine, but the purchaser is a Benamdar of another person. The word Benami is also occasionally used to refer to a sham transaction, as for example, when one purports to execute a deed of transfer without intending that his title should cease or pass to the ostensible transferee. In the former class of transaction the enquiry is made to find out who paid the consideration of the transfer. In the latter class of cases when the question is whether the transfer is genuine or sham, the point for decision would be not who pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or behalf of the person claiming to be real owner of the property for enforcement of his right against a Benamdar. It is merely an enquiry to determine whether there is any land in excess of the ceiling or not, as prescribed by the Statute. It there is no land in excess of the ceiling, the raiyat would not be affected by such enquiry even if the land is found to be held Benami by some other person. Such enquiry could not thus be barred by Section 4 of the B.T.P. Act. 36. Section 14T(5) of the L.R. Act relates to enquiry regarding Benaini transfer for illegal purposes for evading and defeating the ceiling provisions of Chap. IIB of the Act. Section 6 of the B.T.P. Act expressly provides that nothing in the Act shall affect the provisions of any law relating to transfer for illegal purposes. That being so, enquiry into Benami transaction under the aforesaid relevant provisions of the L.R. Act could not thus be prohibited by Section 4 of the B.T.P. Act. 37. Section 4 of the B.T.P. Act bars 'suit, claim or action' to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person by or on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld scarcely be deemed to be an 'action'. Section 4 of the B.T.P. Act, on plain reading, does not clearly seem to prohibit an enquiry into Benami transaction under Section 14T(5) of the L.R. Act as such. The second point urged on behalf of the Appellants as well clearly fails. 39. It had, thirdly, been urged on behalf of the Appellants that the second proceeding to determine surplus land is barred under the law. But to that we would at once note with a minute of dissent that there does not appear to be any second proceeding in the relevant matter before us. In the earlier Big Raiyat proceeding initiated against the raiyat is concerned in 1979 for determining surplus land for vesting over the ceiling area with the State under the L.R. Act, it was incompetent for the Revenue Officer concerned to decide the question of Benami transaction with the law, as it then was. A learned Single Judge of our High Court in Sambhunath Pal v. State of West Bengal (Supra) had held that Chap. IIB of the West Bengal Land Reforms Act, 1955, does not contain any express provision conferring authority or jurisdiction upon the Revenue Officer to determine whether a raiyat is the real owner of any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion or upon any information, may, after giving the persons interested an opportunity of being heard, enquire and decide any question of Benami in relation to any land and any question of title incidental thereto or any interest therein or any matter of transaction made, on being satisfied that such enquiry and decision are necessary for the purpose of preparation, correction or revision of record-of-rights and all matters incidental or consequential thereto or detection and vesting of surplus land over the ceiling area. 41. That being so, the subsequent relevant proceedings before the Revenue Officer concerned for deciding the question of Benami for the purpose of detection and vesting of surplus land and preparation, correction or revision of the records-of-rights under the aforesaid amended provisions of Section 14T(5) of the L.R. Act could hardly be deemed to be a second proceeding or review of the previous determination, as contended by the Appellants, the Revenue Officer concerned having no authority to decide the question of Benami in 1979, The subsequent relevant proceedings by the Revenue Officer concerned for determining the question of Benami could, therefore, hardly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e competent in spite of being retrospective. The burden of proving that the legislation is incompetent and arbitrary, as alleged, lies heavily upon the Petitioners-Appellants. There is not the merest and faintest whisper in the relevant petition or in the Memo of Appeal that any of the provisions of amended Sub-sections (5) to (8) of Section 14T of the L.R. Act is arbitrary. Per contra, a plain reading of the aforesaid provisions, such as they are, would at once make clear that the Legislature was" en to defeat unhappy the devices for evading land ceiling from May 5, 1953, onwards in terms of a policy decision of the Legislature. It has been held by the Supreme Court in State of Tamil Nadu v. L. Abu Kavur Bai A.I.R. 1984 S.C. 326 that an enquiry into the policy of the Legislature or the considerations governing the same cannot be made by the Courts unless the policy is so absurd as to violate the provisions of the Constitution. It is a common knowledge that since the Land Reforms legislation was being thought of in the State various ingenious methods for evading land ceiling, including Benami transfers, had been adopted by the Raiyats on large scale so as to retain as much lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infringing Arts. 14 and 19, Constitution of India. That being so, the Appellants' contention that the retrospective operation of the provisions of Section 14T(5) of the L.R. Act is arbitrary and incompetent, amounting to infringement of vested right of a Raiyat seems to be of little moment. There could neither be any question of depriving the right to property of a Raiyat under Article 300A of the Constitution of India because the deprivation of such right, if any, cannot be said to be without the authority of law. It would also seem significant and observable to note that the Supreme Court in Bishamber v. State of U.P. A.I.R. 1982 S.C. 33 has held that right not to be deprived of property save by authority of law is no longer a fundamental right, though still a constitutional right. The fifth point urged on behalf of the Appellants as well pales into insignificance. 46. The learned Advocate for the Appellants had referred us to the following decisions, amongst others, in support of his contentions: Sashi Bhusan Singha v. Shankar Mahato 54 C.W.N. 936 Raj Ballav Das v. Haripada Das A.I.R. 1985 Cal. 2 Kristo Chandra Pal v. Anilabala Dasi A.I.R. 1958 Pat. 487 Amalgamated Electri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the writ Court cannot be called upon to go into the questions of fact. 48. Upon the premises above, there seems little substance in the instant Appeal, which is liable to fail, as it should. And, in view of the facts and circumstances of the instant matter the only remedy available to the writ Petitioners-Appellants, if any, is by way of appeal, and not by exercising this Court in its writ jurisdiction, as they did. It is not for the writ Court to correct errors of fact and/or errors of law on the part of a statutory authority. The Court below, in our considered view, was, therefore, perfectly justified in directing the writ Petitioners to prefer appeal to the Appellate Authority against the relevant orders passed by the Revenue Officer concerned in the relevant proceedings. 49. In view of the discussions above, the appeal fails. The impugned order passed by the Court below stands confirmed. The writ Petitioners-Appellants shall be at liberty to prefer appeal to the Appellate Authority with liberty to urge all the points taken in the writ petition in terms of the order of the Court below. If any such appeal is preferred by them within a period of one month from this date, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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