The court held that a transaction executed prior to the enactment of legislation cannot be declared Benami based on retrospective application of the law, emphasizing the importance of the intent at the time of execution.

ORDER :

1. Leave granted.

2. The appellants have filed the present appeal impugning the order dated 08.09.2021 passed by the High Court,¹[High Court at Calcutta] in a Writ Petition,²[W.P.L.R.T. No.31 of 2020]. Vide aforesaid order, the High Court had set aside the order dated 11.01.2019 passed by the Tribunal,³[West Bengal Land Reforms and Tenancy Tribunal] in Original Application No.452 of 2008.

3. Briefly, the argument raised by the learned counsel appearing for the appellants is that one Iswar Chandra Pal had executed a registered gift deed dated 07.12.1967 in favour of his sons and daughters. Vide the aforesaid Gift Deed 20.88½ acres of land was transferred. The same was given effect to in the revenue records on 26.05.1969 and the land was transferred in the respective shares of the beneficiaries. Considering the balance land of the said Iswar Chandra Pal, the Government had declared 8.80 acres of land as surplus area and had taken possession thereof. Iswar Chandra Pal died in the year 1975.

4. Subsequently, after the 2nd,⁴[Came into force on 07.08.1969] and 3rd,⁵[Came into force on 12.05.1989] Amendment in the West Bengal Land Reforms Act, 1955,⁶[Hereinafter ‘the 1955 Act’], proceedings,⁷[Case No. 52 of 1996] under Section 14T(3) read with Sections 14M & 14S of the 1955 Act were initiated to determine the surplus land and vest the same with the state in respect of the land held by late Iswar Chandra Pal. During the pendency thereof, further proceedings,⁸[Case No. 3 of 1997] under Section 14T(5) read with Section 14T (8) & (9) of the 1955 Act were initiated to find out as to whether the gift deed executed by Iswar Chandra Pal in favour of his sons and daughters in the year 1967 was a benami transaction. Vide order dated 16.06.1997 passed by the Revenue Officer the gift deed executed by late Iswar Chandra Pal in favour of his sons and daughters on 07.12.1967 was held to be a benami transaction. After adding the aforesaid area, surplus area was again redetermined. It was held that out of the total land area of 26.55 acres, the family of late Iswar Chandra Pal shall be entitled to get 8.65 acres of land in non-irrigated area. Balance 17.90 acres of land was declared to be surplus.

5. Aggrieved against the order passed by the Revenue Officer, the appellants preferred appeals,⁹[Appeal Case No 16(T)/02 & Appeal Case No. 17(T)/02] before the Appellate Authority. Vide order dated 18.12.2007 the matter was remanded to the Revenue Officer, limited to the extent of selection of the area for retention of the land beyond the surplus area.

6. Aggrieved against this order, the appellants preferred an appeal,¹⁰[Original Application No. 452 of 2008] before the Tribunal, which was accepted vide order dated 11.01.2019 and the order of Revenue Officer was set-aside.

7. Aggrieved against the order passed by the Tribunal, the State preferred Writ Petition (Supra) in the High Court, which was accepted by the impugned order and the matter was remitted back.

8. The argument raised by learned counsel for the appellant is that the observation of the Revenue Officer, as prima facie accepted by the High Court is that the transaction of gift deed dated 07.12.1967 was a Benami transaction is totally erroneous as the amendment came into effect almost two decades after registered gift deed was executed. No one could imagine in 1967 that they need to plan the holding of the land in a way that it is not declared surplus in future. The gift deed was a registered document, which was given effect to in the revenue records on 26.05.1969, much prior to the amendment.

9. On the other hand, Mr. Kalyan Banerjee, learned sen