A.K. Mukherjea, J. - (1.) This appeal is directed against a judgment and order dated September 28, 1964, of D. Basu, J. The appeal arises in the following circumstances: The Petitioner, who is now an Indian citizen, was originally a resident of Rangpur in East Pakistan where he had certain landed, properties. The Petitioner's uncle, Ganesh Chandra Singha Roy, who is Respondent No. 5 in these proceedings, was also originally resident of Rangpur and he too had lands there. The Petitioner states that in the wake of communal disturbances in East Pakistan, which broke out in April 1950, the Petitioner's lands as well as the lands of his uncle, Ganesh Chandra Singha Roy, his aunt (wife of Ganesh) and of certain other persons were exchanged with the lands of one Jahiruddin Prodhan and his relatives, these latter being situate in the district of Cooch Behar. This exchange is alleged to have been effected sometime in or about the month of May 1950. In terms of this exchange the Petitioner, his uncle and aunt and the other persons aforesaid took possession of the lands of Jahiruddin and his relatives in the Indian Union while their own lands were at the same time taken possession of by Jahiruddin and his relatives. On May 5, 1950, Jahiruddin executed and registered an ammoktarnama in favour of the Respondent No. 5, that is, Ganesh Chandra Singha Roy. The Petitioner says that this ammoktarnama was "in respect of the said lands of Jahiruddin and his other relatives." On May 6, 1950, Jahiruddin executed a Deed of Exchange in respect of the afore -mentioned lands, but this deed was executed only in favour of the Respondent No. 5, Ganesh, although the lands of Jahiruddin and his relatives had in reality been exchanged with the lands of the Petitioner and certain other persons, and although the Petitioner along with those persons had taken actual possession of the lands allotted to their respective shares. In the petition, the Petitioner says that this happened through mistake. Thereafter, when the Petitioner and the other persons, who had also exchanged lands, asked for title deeds in respect of the lands in their possession, the Respondent No. 5 Ganesh executed in their favour certain documents on Agrahayan 17, 1359 B.S. and Magh 5, 1359 B.S., corresponding respectively to December 1, 1952 and January 17, 1953, declaring that whatever right, title and interest had been acquired by the Respondent No. 5 under the deed executed by Jahiruddin in the said lands of the Petitioner and his friends would vest in the latter. The deed that was executed in favour of the Petitioner is dated Agrahayan 17, 1359 B.S. The Petitioner states that on the strength of the deed dated May 6, 1950, which had been executed by jahiruddin in favour of Ganesh, all the lands were recorded in the Settlement Records in the name of the Respondent Ganesh. Sometime after this, a notice dated July 19, 1960, from the Revenue Officer, Alipurduar, district Jalpaiguri, was served upon the Petitioner and proceedings under Sec. 5A of the West Bengal Estates Acquisition Act, 1953, were started against the Petitioner in respect of lands which are claimed by the Petitioner as belonging to him in the circumstances stated hereinbefore. A copy of the notice has been annexed to the petition. At the time of the hearing before the Revenue Officer both the Petitioner and the Respondent No. 5 gave evidence and stated the above facts and circumstances and objected to the validity of the proceedings. The Revenue Officer overruled the Petitioner's objection and passed an order that the transfer was not bona fide and was to stand cancelled from the date on which it was made. Against that order of the Revenue Officer the Petitioner preferred an appeal before the learned Special Judge, Jalpaiguri. The appeal was, however, dismissed and the learned Special Judge upheld the order passed by the Revenue Officer by a judgment dated May 18, 1962. The Petitioner thereafter made an application under Article 226 of the Constitution, challenging the aforesaid orders of the learned Special Judge and the Revenue Officer on various grounds stated in the petition.
(2.) The first point taken by Mr. Arun Dutt, appearing for the Petitioner, was that in the facts and circumstances of the case Sec. 5A of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the 'said Act'), had no application. In order to understand the argument of Mr. Dutt it is necessary to set out the provisions of Sec. 5A of the said Act in extenso: Section 5A. Restriction on certain transfers. (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 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. Provided that, subject to such cancellation, nothing in this Sub -section 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. (4) The State Government may delegate all or any of its powers under this Sec. to such officers in its service as it may deem fit. (5) The procedure to be followed in such enquiry shall be such as may be prescribed. Provided that (i) no order shall be passed in an enquiry held under this Sec. except after giving the transferor and the transferee an opportunity of being heard; (ii) in conducting such enquiry the State Government and any officer to whom any powers have been delegated under Sub -section (4), shall have all the powers of a Civil Court for the purposes of taking evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents and shall be deemed to be a Civil Court within the meaning of Ss. 480, 481 and 482 of the Code of Criminal Procedure, 1898 (V of 1898). (6) An appeal against any order passed by the State Government under Sub -section (2) or Sub -section (3), or passed under any of those Sub -sections as read with Sub -section (4) by an officer to whom powers have been delegated under Sub -section (4), if preferred within sixty days of such order or within sixty days from the date of appointment of the Special Judge, whichever is later, shall lie to a Special Judge, being a person who is or has been a District Judge appointed by the State Government for the purpose of this Sec. and such Special Judge shall dispose of the appeal according to the prescribed procedure. (7) In this section - - (i) a transfer shall be held to be not bona fide if it was made principally or partially with the object of increasing the amount of land which a person may retain under this chapter or principally or partially with the object of increasing the amount of compensation under chapter III or chapter IV; (ii) a transfer in favour of one or more of the following relatives of the transferor, that is to say, a wife, a husband, a child, a grand -child, a parent, a grand -parent, a brother, a sister, a brother's son, a sister's son, a daughter's husband, a son's wife's brother or sister, or a brother's wife, made between the 15th day of May, 1953, and the date of vesting, shall be presumed to be not bona fide until the contrary proved. Provided that no such presumption shall be made in respect of transfer of land by an intermediary if the aggregate area of such land owned by the intermediary at any time between the 5th day of May, 1953, and the date of transfer did not exceed twenty acres in extent in the case of non -agricultural land and twenty -five acres in extent in the case of agricultural land: (iii) 'transfer' means a transfer by sale, mortgage, lease, exchange or gift, (iv) 'transferor' and 'transferee' include the successors in interest of a transferor or a transferee.
(3.) The purpose of the Sec. is obvious. On or just before the vesting of the estates there had been apparently a large number of transfers of land made by 'intermediaries' which had been affected with the specific purpose of retaining control over lands which the said Act would not have ordinarily allowed. This retention was achieved by transferring in favour of one's own near relatives or nominees all lands in excess of the maximum that one could hold in one's own name after the date of vesting. The Sec. empowers the State Government to institute an enquiry into any case of transfer after May 5, 1953, and before the date of vesting provided, of course, the State thinks that such transfer was not bona fide. If on enquiry the State finds that the transfer was not bona fide, the State Government can cancel it by an order.;