(1.) THE petitioners were raiyats in respect of certain agricultural and non-agricultural lands. Their interest as raiyats vested in the State Government, when Chapter VI of the West Bengal Estates Acquisition Act (hereinafter referred to as the Act) came in force on April 10, 1956. Long prior to that date and even prior to the date when the Act (excepting Chapter VI) came into operation, the petitioners had made transfers of certain plots of land, held by them as raiyats, in favour of one or other of the opposite party nos. 3 to 5, as hereinbelow detailed :- (a) On June 2, 1953, the petitioners sold to Gulnehernessa Bibi (opposite party No. 5) plots Nos. 2463 and 2546 of Mouza Ahiran, in all measuring. 29 acre. (b) On June 2, 1953, the petitioners sold to Pagal Ghosh (Opposite Party No. 4) plots Nos. 1563 and 3045 of Mouza Ahiran, in all measuring 1. 06 acre. (c) On July 8, 1953, the petitioners sold to Jogendra Nath Saha (opposite party No. 3) plots Nos. 413, 436, 560 and 390 of Mouza Ahiran, in all measuring 4. 03 acre.
(2.) AFTER the vesting of their raiyati interest in the State Government, by operation of section 52 read with section 4 of the Act, the petitioners became entitled to retain certain lands as: provided in section 6 of the Act. They exercised their option of retention but the Assistant Settlement Officer (opposite party No. 2), in exercise of his power under section 5a of the Act, held that the area of lands conveyed by them be deducted from the acreage of land retained by them. The material portion of the order is set out below:-
"it appears from the Registered kobala deed No. 1888 (of Nimtita S. R. Office) executed in favour of Bibi Gulnehar on 2-6-53 that plot No. 2463 of Khatian 324 area 24 decimals, plot 2546 Mouza Ahiran 05 decimals of mouza Ahiran from the deed No. 2315 (of Nimtita S. R. Office) executed in favour of Jogendra Nath Saha on 8-7-53 that plot No. 413 Khatian 98. 97 acre, 436-39 acre, 560-1. 57 acre, 390-1. 10 acre, and from the deed No. 1887 (Nimtita S. R. Office) executed in favour of Pagal Ghosh on 2-6-53 that plot No. 1563 Khatian 453-69 dec. of Ahiran 3045 khatian 453-37 dec. , total 5. 38 were transferred by Sri Ratnakar and Dhirendra Ghosh. There is no relationship between the transferor and transferee. It appears from the big Raiyat Register that Sree Ratnakar Ghosh holds 40. 17 agricultural, 1. 59, Non-agricultural, 19 homestead land, and Sree Dhirendra Nath Ghosh holds 30. 55 of agricultural, 1. 59 of Non-agricultural and 20 decimal of homestead land and have evaded the ceiling. The above transfers made to the persons with whom the transferor has no relation and thus all the transfers are bonafide and as the transferors are big raiyats and holds land beyond the ceiling, the amount of land transferred as per above deed will be deducted from the lands, they have retained under section 6 (1) of E. A. Act. "
(3.) THE propriety of the order is being disputed in this Rule. Section 5a was inserted in the Act, with retrospective effect by section 2 of the West Bengal Estates Acquisition (Amendment) Act, 1954 and the material portion of the section is herein-below set out:-
" (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 day of May, 1953 and the date of vesting, if in its option 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 subsection 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. " Under sub-section (1) and (2) of Section 5a, (which I shall hereinafter describe as the first part of the section) the State Government, if prma facie of the opinion, after a statutory enquiry, that any transfer made between May 5, 1953 and the date of vesting is not bona fide, shall make an order to that effect and thereupon such transfers shall stand cancelled as from the date when they were made or purported to have been made. Under sub-section (3) of Section 5a, (which I shall hereinafter describe as second part of the section), even if the State Government finds that a transfer made between the material dates was bona fide, it shall make an order to that effect and thereupon two consequences will follow:-- (i) the transferred land shall be deemed to be the land of the transferee for the purposes of the Act, and (ii) if such land or any part thereof is retained by the transferee, in calculating the land which may be retained by the transferor, under section 6 of the Act, the transferred land or any part thereof may be taken into account as if such land, or such part thereof had never been transferred but was retained by the transferor or was chosen by him as land to be retained by him.;