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1962 Supreme(Cal) 200
HIGH COURT OF CALCUTTA
P. B. Mukharji
HARANATH GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
. Of .
Decided On : August 21, 1962
Section 5a of the West Bengal Estates Acquisition Act, 1953 applies to Khas Mahal lands and is not ultra vires the Constitution.
Headnote:
LAND REFORM - WEST BENGAL ESTATES ACQUISITION ACT, 1953 - SECTION 5A - APPLICABILITY TO KHAS MAHAL LANDS - CONSTITUTIONALITY - DELEGATION OF POWERS - MODIFICATION OF CHAPTERS II, III, V AND VII FOR RAIYATS AND UNDER-RAIYA - COMPLIANCE WITH RULE 3A OF THE WEST BENGAL ESTATES ACQUISITION RULES, 1954.
Fact of the Case:
The petitioner challenged the finding of the Assistant Settlement Officer, confirmed by the Special Judge, that the transfer of land from his mother to him was hit by Section 5a of the West Bengal Estates Acquisition Act, 1953. He argued that the lands were governed by the Bengal Waste Lands Rules and that Section 5a did not apply to Government Khas Mahal lands.
Finding of the Court:
The court held that Section 5a of the West Bengal Estates Acquisition Act, 1953 applied to Khas Mahal lands. It also held that Section 5a was not ultra vires the Constitution, as the delegation of powers under the Act was not excessive or unguided, and that the modification of Chapters II, III, V and VII for raiyats and under-raiyats was not unconstitutional. The court further held that Rule 3a of the West Bengal Estates Acquisition Rules, 1954, had been complied with.
Issues: 1. Whether Section 5a of the West Bengal Estates Acquisition Act, 1953 applies to Khas Mahal lands. 2. Whether Section 5a of the West Bengal Estates Acquisition Act, 1953 is ultra vires the Constitution. 3. Whether the modification of Chapters II, III, V and VII for raiyats and under-raiyats is unconstitutional. 4. Whether Rule 3a of the West Bengal Estates Acquisition Rules, 1954, has been complied with.
Ratio Decidendi: 1. Section 5a of the West Bengal Estates Acquisition Act, 1953 applies to Khas Mahal lands because: - The definition of 'estate' in Section 2(f) of the Act includes Government Khas Mahal lands. - The definition of 'intermediary' in Section 2(i) of the Act includes a tenure-holder, which the petitioner is as he holds land under the Government, the proprietor of the Khas Mahal lands. 2. Section 5a of the West Bengal Estates Acquisition Act, 1953 is not ultra vires the Constitution because: - The delegation of powers under the Act is not excessive or unguided, as the State Government must consider the officer to be fit for such delegation. - The modification of Chapters II, III, V and VII for raiyats and under-raiyats is not unconstitutional, as it is only intended to make these chapters applicable to the case of raiyats and under-raiyats, which without the modification might not have been applicable. 3. Rule 3a of the West Bengal Estates Acquisition Rules, 1954, has been complied with because: - The order of the Assistant Settlement Officer dated 8th December, 1956 shows that the same person conducted the enquiry and formed his opinion. - The legal interpretation of Section 5a(1) and 5a(4) of the Act does not impose any limitation that the opinion formed in sub-section (1) must be by the same person who is to enquire under delegation in sub-section (4).
Final Decision: The court dismissed the application and discharged the rule.
( 2 ) TO appreciate the petitioner's challenge in this case it is necessary to summarize his main contentions before me. His first contention is that the lands in question are governed by the Bengal Waste Lands Rules. Here he is between the two horns of a dilemma. If he is governed by the Bengal Waste Lands Rules then these lands being settlements in Jalpaiguri in western Duars could only be the subject of a lease in Form A under Rule 13 of Chapter IV of the Bengal Waste Lands Manual. But then clause 5 of Form A of the lease definitely enjoins "you shall not transfer your right or any share or interest in the lands of your jote or any part thereof by sale, gift, mortgage or otherwise, except with the sanction of the Deputy Commissioner previously obtained in writing". It is common ground that the mother's transfer to the petitioner in this case was without sanction of the Deputy Commissioner. If that be so then there is no lawful lease or grant or transfer or sale in favour of the petitioner. In that event the petitioner has no "legal right" on the basis of whose breach he can move this Court under Article 226 of the Constitution. The transfer is prima facie in violation of law and covenant and the petitioner is out of Court at once.
( 3 ) THEREFORE, he shifts his ground of challenge and says that Section 5a of the West Bengal Estates Acquisition Act does not apply to his case because these lands are Government khas mahal lands and are outside the purview of the West Bengal Estates Acquisition Act, 1953. The gist of this argument in its interesting form is that the Government has always been regarded as the owner of Khas Mahal lands ever since the days of the Permanent Settlement under Lord Cornwallis. The argument is that the West Bengal Estates Acquisition Act was not intended to apply to Government Khas Mahal lands and applies only to the lands which were vested in the Zemindars. The point so stated in bald terms has its attraction but when analysed loses its substance.
( 4 ) I shall now proceed with that analysis. Section 4 of the Act speaks of the notification of the State Government vesting not only, "estates" but also "rights of every intermediary" in such an estate. The significant words in that section for the purpose of this application are: ". . . . all estates and the rights of every intermediary in each such estate. . . . shall vest in the State free from all incumbrances. "
( 5 ) NOW the position has to be determined with reference to the words "estates" and the "rights" of every intermediary. "estate" is defined by Section 2 (f) of the West Bengal Estates Acquisition Act to include part of an estate. That means that the 'estate' is not actually defined by the Act. But Section 2 (p) of the Act which provides that the expressions used in this Act and not otherwise defined have in relation to the areas to which the Bengal Tenancy Act, 1885, applies the same meaning as in that Act. Naturally we have to travel through the Bengal Tenancy Act for the definition of the 'estate'. Section 3 (4) of the Bengal Tenancy Act of 1885 says: "estates" means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government Khas Mahals and revenue-free lands not entered in any register. "
( 6 ) THE express reference to Government khas mahals and revenue-free lands in the statutory definit
