- (1.) THIS Rule is directed against the order of the Special Judge, as the appellate authority under section 5a (6) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the 'act') by which he set aside the order of the Revenue Officer, who had found the transfer to be colourable The question involved Is whether a deed of surrender executed on 22-10-53 by opposite parties 4 and 5 in favour of opposite parties 1, 2 and 3 was a bona fide transfer or a colourable one. The relevant provisions in section 5a of the Act are as follows: " (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 opinion 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. " The proceeding under section 5a was started by the State in view of the fact that the deed of surrender aforesaid was executed between the 5th May, 1953 and the date of vesting in the State. The Revenue Officer came to the finding that the deed of surrender was a colourable transaction entered into with the object of retaining lands in excess of the prescribed ceiling and he accordingly ordered that it should be cancelled from the dale of its execution. In that proceeding the Revenue Officer gave notice to the petitioner, who is a bargadar under the opposite parties in respect of the disputed land. But the Special Judge, on appeal, did not give any notice to the petitioner or offer him any opportunity of being heard. The decision of the Special Judge is accordingly impugned on the ground that the Judge has acted in excess of his jurisdiction in refusing to hear the petitioner as required by Rule 3a of the Rules framed under the West Bengal Estates Acquisition Act.
(2.) IN the affidavit-in-opposition it is urged that the petitioner was not party to the proceeding under section 5a of the Act and the Rules framed under the Act also do not require any hearing of the petitioners so that the order of the Special Judge made without hearing him cannot be said to be without jurisdiction. At any rate the petitioner has no locus-standi to move this petition under Article 226 of the Constitution. The points for determination in this case are:- (a) Whether the Petitioner had any right to be heard in the proceedings before the Special Judge ; (b) Whether the Petitioner has any locus-standi to maintain this application under Art. 226. (a) The claim of the Petitioner to be heard is founded on rule 3a (2)- (3) of the Rules framed under the Act, i. e. , the West Bengal Estates Acquisition Rules, 1954, which, at the material time, stood as follows:- "the procedure for enquiry under sub-section (1) of section 5a shall be as follows: " (2) Thereafter the State Government or such officer shall cause to be served on the transferor and the transferee of such land or such other party as may be found to be interested in the transfer a copy of such order and a notice requiring them to produce necessary documents and other evidence for proving whether or not the transfer of such land was bona fide and shall specify in such notice a date, time and place for the production of such documents and other evidence and the hearing of the case. (3) Upon hearing the transferor, the transferee and other party referred to in sub-rule (2) as appear at the hearing of the case and considering such documents as may be produced and the evidence, if any, which may be adduced and after making such enquiry, if any, as the State Government or such officer thinks fit, the State Government or such officer, as the case may be, shall make an appropriate order. "
(3.) IT is clear that if the Enquiring Revenue Officer was bound to hear the Petitioner under the provision just referred to, the Appellate Authority, i. e. , the Special Judge, would also be bound to hear the Petitioner, because it is a fundamental principle of appellate proceedings that any person who had a right to be heard by the inferior tribunal and is, accordingly interested either to support or to challenge the decision of the inferior tribunal should be given a hearing by the appellate authority. The Petitioner is neither the transferor nor the transferee in respect of the transfer the bona fides of which was challenged in the proceeding Under section 5a. The Petitioner can, therefore, have a right to be heard muter rule 3a (2)- (3) only if the Petitioner can be said to be "a party as may be found to be interested in the transfer" a person may be said to be interested in a transaction of transfer only if he may derive some indirect or collateral benefit or advantage from the transaction even though he is not the transferee. Such a person, has, obviously, an interest to see that the transfer is not annulled as malafide. It may be mentioned in this context, that, by an amendment of 1959, the words "or affected by" have been inserted in r. 3a (2), to include not only a person who is interested to support the transfer but also a person who may be interested have the transfer annulled: But the Petitioner does not come under cither of these two classes. He is a tiller of the land on a share of the produce and now has certain statutory rights and liabilities which arc not affected by any transfer of the ownership of the land. It follows, therefore, that the Petitioner had no legal right to be heard by the Revenue Officer who made the inquiry under section 5a, it was contended on behalf of the Petitioner that whether the Petitioner had any right or not to appear in the proceeding before the Revenue Officer, the Revenue Officer actually gave notice to the Petitioner and allowed him to give evidence and that, accordingly, the Special Judge ought to have heard the Petitioner before setting aside the order of the Revenue Officer. But this argument is of no avail inasmuch as in this proceeding under Art, 226, I cannot interfere with the order of the Special Judge unless it can be said to be ultra vires or without jurisdiction. If the statute or the Rules gave the Petitioner no right to be heard, it cannot be said that the Special Judge, has acted without jurisdiction or in contravention of the statute by failing to hear the Petitioner.;