Patna High Court
Prem Manjari Devi vs State Of Bihar And Anr. on 24 August, 1954
Equivalent citations: AIR1954PAT550, AIR 1954 PATNA 550
JUDGMENT Ramaswami, J.
1. In this case the petitioner Maharani Prem Manjari Devi has moved the High Court for grant of a writ in the nature of certiorari to call up and quash certain proceedings instituted by the Additional Collector of Ranchi under Section 4(h), Bihar Land Reforms Act.
2. The petitioner claims that on 11-6-1951 her husband, the Maharaja of Chotanagpore, executed a settlement of trust granting beneficiary interest in seventy-one villages in favour of the petitioner. The petitioner states that the Maharaja executed the document since there was a tradition and family custom of giving Sindurtari at the time of the marriage. The case of the petitioner is that the transaction is bona fide. Previous to the execution of the deed the Bihar Land Reforms Act (30 of 1950) had been enacted by the State Legislature and the Act received the assent of the President on 11-9-1950. Acting under the provisions of Section 4(h) of the Act the Additional Collector of Ranchi issued a notice on 20-9-1952 to the petitioner asking her to show cause why the settlement should not be set aside on the ground that it was created with the object of defeating the provisions of the Bihar Land Reforms Act.
The petitioner showed cause before the Additional Collector and in the course of the enquiry the petitioner's husband, Maharaja of Chotanagpur, was examined as a witness for the State of Bihar. The Maharaja was examined on 19-11-1952 by the Government Pleader Mr. P. K. Banerji, who applied on the same day to the Additional Collector for cross-examining the witness on the ground that he was concealing the truth. The petition was allowed by the Additional Collector on the ground that the witness appeared to him highly reluctant to disclose the true state of affairs, Aggrieved by this order the petitioner applied to the Deputy Commissioner on 10-12-1952 stating that the enquiry should be transferred from the file of the Additional Collector for the reason that he had expressed his opinion as to the character of the Maharaja.
The petitioner also alleged that Mr. Banerji, Government Pleader, had advised the Maharaja in the matter of the execution of the trust deed and so he should not be permitted to appear in this enquiry on behalf of the State. The application was rejected by the Deputy Commissioner of Ranchi on the ground that he had no power under the statute to transfer the enquiry from the file of the Additional Collector of Ranchi. As regards the appearance of the Government Pleader, Mr. Banerji, the Deputy Commissioner said that there was no bar to his appearing on behalf of the Government.
The petitioner has prayed to this Court for quashing the proceedings under Section 4(h), Bihar Land Reforms Act, firstly, on the ground that there was a violation of natural justice, and, secondly, on the ground that the provisions of Section 4(h) of the Act were constitutionally invalid. The contention put forward on behalf of the petitioner is that the provisions of Section 4(h) violate the constitutional safeguard under Article 31 of the Constitution as the legislation is not for a public purpose and there is no provision as regards payment of compensation.
3. In my opinion there is no merit in the argument advanced -on behalf of the petitioner that the proceedings before the Additional Collector were illegal and void because there was a violation of natural justice. The allegation made by the petitioner is that the Additional Collector permitted the Government Pleader, Mr. Ranerji, to cross-examine the Maharaja on the ground that he was not disclosing the true state of affairs. It is also alleged that the Additional Collector ought not to have permitted the Government Pleader, Mr. Banerji, to appear for the State of Bihar for the reason that Mr. Banerji had taken part in drafting the trust deed for the Maharaja. In my opinion there is no point in either of these objec-tions.
The Additional Collector has certainly the authority to say that a particular witness is not telling the truth and it is a matter of discretion whether he should in such a case permit Mr. Banerji to cross-examine the witness. It is highly far-fetched to argue that this circumstance necessarily leads to the conclusion that the Additional Collector has a biased outlook. As regards the appearance of Mr. Banerji the Deputy Commissioner says that he was satisfied that apart from advising the Maharaja in executing the trust deed Mr. Banerji did nothing else. The Deputy Commissioner further said that if Mr. Banerji did not like to appear in the case he would not press him to do so and the State Government would engage another lawyer for conducting the enquiry. In my opinion there is nothing to show that there has been violation of natural justice in this case and the argument of Mr. B. C. Ghosh on this point must fail.
4. The next argument put forward on behalf of the petitioner is that the provisions of Section 4(h) Bihar Land Reforms Act, are constitutionally invalid. Section 4(h) as originally enacted in Bihar Act 30 of 1950 has been subsequently amended by Bihar Act 20 of 1954. Section 4(h) as it now stands reads as follows;
"The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in-such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, made at any time after the first day of January, 1946, and if he is satisfied that such transfer was made with the object of defeating any provisions of this Act or causing loss to the state or obtaining higher compensation thereunder, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction of the State Government, annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable."
The argument of the petitioner is that the section does not specify the principle on which compensation is to be given to the persons whose leases or settlements are cancelled. Counsel further argued that there is no public purpose in making such an enactment. The argument of the petitioner is that unless Section 4(h) satisfies the constitutional requirement as to the existence of public purpose and the provision as to compensation, there would be a violation of Article 31 and the provisions of Section 4(h) must be declared to be illegal and void. In my opinion the argument addressed by Mr. B. G. Ghosh is not well founded. Article 31A(1) which was inserted by the Constitution (First Amendment) Act of 1951 expressly saves the legislation providing for the acquisition of any estate or of any right therein from attack on the ground that the legislation contravenes any of the articles of Part III of the Constitution.
Article 31A(1) states:
"Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part; Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received assent."
Counsel for the petitioner argued that Section 4(h) is not a legislation providing for the acquisition of any estate or for the extinguishment or modification of any right in the estate. I do not think that this argument is correct. Section 2(i), Bihar Land Reforms Act, defines 'estate' to mean "any 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 revenue-free lands not entered in any register and a share in or of an estate."
Section 4(h) of the Act confers authority on the Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure. It is obvious that the transferee or the lessee of a land comprised in an estate or tenure has an "interest or right in such estate or tenure". Section 4(h) must therefore be taken to be a law providing for the acquisition of any estate "or of any right therein or for the extinguishment or modification of such rights" within the meaning of Article 31A of the Constitution. The matter may be looked at from another view point, Section 4(h) is not an independent provision of the Act. The main provisions of the Act are Sections 3 and 4 which empower the State Government upon notification to declare that the estates specified in the notification have passed to and become vested in the State.
Section 4 deals with the consequences of such vesting and Section 4(h) is an ancillary provision which has been enacted for the purpose of carrying out more effectively the main provisions of the Act. In my opinion the provisions of Section 4(h) arc intimately associated and linked with the main provisions enacted under Sections 3 and 4. The question is --What is the primary matter dealt with by this legislation of which Section 4(h) is an integral part? In its pith and substance the legislation deals with the acquisition of estates or tenures falling within entry 36 of List II and is therefore protected from attack under Article 31A of the Constitution.
5. Counsel on behalf of the petitioner then presented the argument that even if Article 31A applied to the case, the provisions enacted under Section 4(h) were confiscatory in character and constituted a fraud upon the Constitution. It was contended by the counsel that Section 4(h) was a colourable piece of legislation and in support of his argument counsel referred to the decision of the Supreme Court in -- 'State of Bihar v. Kameshwar Singh', AIR 1952 SC 252 (AJ. The question at issue in that case was whether the Bihar Land Reforms Act was constitutionally valid. The view taken by majority of the Judges in that case was that the Bihar Land Reforms Act was constitutionally valid except with regard to the provisions in Section 4(b) and Section 23(f) and that the provisions of Section 4(b) and Section 23(f) were unconstitutional.
As regards Section 4(b) it was held by Mukherjea I. that the real object was to deprive the landlord of his money without giving anything in exchange and the Legislature was not in truth acting under entry 42 but was simply pretending to act under that entry and the legislation was therefore unconstitutional and void as the legislature has in substance evaded the constitutional provisions, The other two Judges, Mahajan J. (as he then was) and Chandrasekhara Aiyer J. held that the question of public purpose was a justiciable" issue and that the acquisition of arrears of rent on payment of 50 per cent, of the value cannot be held to be a public purpose and therefore Section 4(b) was unconstitutional and void. As regards Section 23(f) the majority of the learned Judges took the view that the head of the liability did not exist and was completely illusory and so Section 23(f) was a colourable piece of legislation being a mere device to reduce the gross assets.
In the present case counsel for the petitioner based his argument on the reasoning of the Supreme Court in this decision and contended that the provisions of Section 4(h) should also be held to be a colourable piece of legislation and therefore unconstitutional. It is, in my opinion, difficult to accept this argument. Section 4(b) was declared unconstitutional by the Supreme Court since the acquisition of arrears of rent was tantamount to acquisition of money or of choses in action and this had no relationship or connection with the acquisition of estates or tenures under the Bihar Land Reforms Act. As regards Section 23(f) it was held by the majority of the learned Judges that this head of liability did not exist and the zamindar is not liable for constructing the works of benefit to the raiyat. It was therefore held that Section 23(f) was a colourable piece of legislation -- a mere device to reduce gross assets and such legislation was unconstitutional.
In the present case the provisions enacted un-der Section 4(h) are not independent provisions; the provisions are ancillary in character and Section 4(h) has been enacted for carrying out more effectively the main provisions of the Act. The enquiry imposed on the Collector under Section 4(h) is meant, in the first place, to find out what is the quantum of the property vested in the State Government by notification under Section 3 of the Act, and, in the second place, Section 4(h) is meant for preventing the evasion of the Act by dishonest zamindars. It is clear that the object of Section 4(h) is to strike down transactions which are not bona fide and which are calculated to defeat the provisions of the Act. In my opinion the provisions of Section 4(h) have no analogy to the provisions of Section 4(b) which relates to the acquisition of arrears of rent, or to the provisions of Section 23(f), and I am unable to accept the contention of the petitioner that Section 4fh) must be declared to be unconstitutional and void as being a colourable piece of legislation.
6. I shall however assume in favour of the petitioner that Article 31A does not apply to the case and that the question of compensation is a justiciable question. Even so I am not satisfied that the provisions enacted under Section 4(h) are unconstitutional either from the procedural or substantive aspect. The power granted to the Collector under Section 4(h) is the power to make investigation in respect of any transfer including the settlement or lease of any land comprised in the estate and to annul such transfer if the Collector is satisfied that the transfer was effected by the zamindar with the object of defeating the provisions of the Act or of causing loss to the State or obtaining higher compensation thereunder. It is clear that Section 4(h) is directed at mala fide transactions and the Collector is granted authority to nullify such transactions if he was satisfied that the object was to defeat the provisions of the Act.
The provisions of Section 4(h) bear great similarity to the provisions of Section 23, Contract Act, which is in the following terms-
"The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; ......... In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
In this context Section 6(h), Transfer of Property Act, is also relevant. Section 6(h) states-
"No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be transferee."
The legal position is that in the case of an unlawful transaction the injured party has as a rule no right of restitution; for instance, if money is paid under an unlawful lease or settlement, the lessee or settlee has no right to recover the money already paid. There are certain exceptions to this general rule, for example, the Court may order restitution if the parties are not in 'pari delicto' or if the illegal contract is still in an executory stage. But under Section 4(h) the Collector has been granted a general authority to cancel the unlawful transaction on such terms as may appear to him to be fair and equitable. The statute gives discretion to the Collector though a transferee who is a party to an unlawful agreement may not have the right to claim compensation under the general law.
But it is fallacious to argue that Section 4(h), Bihar Land Reforms Act, affects the right of compensation payable by the Government to the proprietor or to the transferee. If the transfer is set aside by the Collector, the result is that the parent estate is increased in extent and a liability is thrown upon the Government to pay increased compensation pro tanto to the proprietor of the estate. The question at issue therefore is not the question of non-payment of compensation; the question is merely as to how the compensation is to be apportioned between the transferor and the transferee.
The power of enquiry under Section 4(h) is also protected by ample safeguards. The Collector is required to give reasonable notice to the parties and to pass order only after hearing the parties concerned. The Collector is not given final authority to annul the transfer or take possession of the property. The Collector must take the previous sanction of the State Government before he makes order of annulment of the transfer or before he enters into possession of the property. In my opinion the requirements of Section 4(h) are reasonable both from procedural and substantive aspect, and there is no violation of the guarantee under Article 31 of the Constitution.
7. For the reasons assigned I hold that the petitioner has not made out a case for the issue of a writ against the respondents under Article 226 of the Constitution. I would dismiss this application with costs. Hearing fee Rs. 100.
Ahmad, J.
8. I agree.