NILIMA BANERJEE v. STATE OF WEST BENGAL — 1973 DIGILAW 189 (CAL)

PRADYOT KUMAR BANERJEE, J. ( 1 ) THE case of the petitioner is that the petitioner is a raiyat under the State in respect of the disputed lands. On 6th January, 1954 the petitioner's husband Sri Baidya Nath Banerjee executed a registered deed in favour of the petitioner. It is alleged that the said deed was confirmatory document and not a document of transfer. Upon the publication of the notification under Section 4 of the West Bengal Estates Acquisition Act, 1953 the intermediary interests of the aforesaid landlords vested in the State. It is stated that in the finally published Revisional Record of Rights, the petitioner was recorded as a raiyat in respect of the said lands directly under the State. Sri Baidya Nath Banerjee submitted returns in Form B exercising his choice to retain his khas lands in terms of section 6 of the Act. The Revenue Officer, Suri, Started Big Raiyat Case No. 9 of 1968 under Section 6 of the West Bengal Estates Acquisition Act, 1953 and after holding an enquiry by his order No. 10 dated 27th July, 1959 accepted the said returns of Baidyanath Banerjee and directed that Khanda Khatians be opened. In consequence, thereafter, it is alleged Sri Baidynath Banerjee has rendered to the State of a large number of plots of lands. It is stated that the Assistant Settlement Officer and Charge Officer, Birbhum, Suri, to whom powers of the State Government under Section 5a of the Act had been delegated purported to start an enquiry under Section 5a of the West Bengal Estates Acquisition Act, 1953 in respect of the seven deeds executed and registered on 16th January 1954. The said officer recorded that he was of the opinion that there was prima facie reasons for believing that the alleged transfers may not be bonafide. The enquiry was stated under Section 5a of the Act and a case under Section 5a of the Act was registered as Case No. 190 of 1960-61. The Assistant Settlement Officer duly served notices of the said case on all interested parties and proceeded to hold an enquiry under Section 5a of the Act. The enquiry was stated under Section 5a of the Act and a case under Section 5a of the Act was registered as Case No. 190 of 1960-61. The Assistant Settlement Officer duly served notices of the said case on all interested parties and proceeded to hold an enquiry under Section 5a of the Act. The petitioner and other parties filed written objections, adduced oral and documentary evidence in support of their classes that the transfers in question were made in the year 1351 B. S. , i. e. long before 5th of May, 1953 and as such the transfers did not come within the mischief of Section 5a of the West Bengal Estates Acquisition Act. From the judgment in Case No. 190 of 1961it appears that the parties did not prefer an appeal. It is contended that the judgment passed in the case became final. It appears that the Revenue Officer, B Camp, Suri, thereafter issued a notice under Section 57 of the West Bengal Estates Acquisition Act upon Sri Baidya Nath Banerjee. Against the notice under Section 57 calling upon Sri Baidya Nath Banerjee to submit a statement of land of which possession will be given up in consequence, "thereupon, Baidya Nath Banerjee moved this Court and obtained the Rule and an ad-interim order, being C. R No. 1917 (W) of 1967. On 14th November, 1967 the Assistant Settlement Officer, Suri, issued a notice on the petitioner after recording that he was of the opinion that there was prima facie reasons for believing that the said transfer may not be bonafide. The Assistant Settlement Officer ordered that an enquiry will be held by him under Section 5a of the West Bengal Estates Acquisition Act and seven cases ere started by him under Section 5a of the Act, being Case Nos. 1 to 7 of 1967. Being served with the notice, Sri Baidya Nath Banerjee filed a preliminary objection before the Revenue Officer that once under Section 5a of the Act a proceeding has been started and concluded and finding has been made in favour of the petitioner, the said proceeding cannot be reopened by starting a second enquiry. That preliminary objection was, however, rejected. Thereupon the petitioner's Advocate applied for further time to move the Higher Court which was however rejected whereupon the petitioner's Advocate withdraw from the case and the order was made exparty. That preliminary objection was, however, rejected. Thereupon the petitioner's Advocate applied for further time to move the Higher Court which was however rejected whereupon the petitioner's Advocate withdraw from the case and the order was made exparty. Against the order of rejection of the preliminary objection, the petitioner preferred on appeal and the appeal was allowed and the matter was remanded to the Revenue Officer for re-hearing of the matter but the preliminary point on which the petitioner urged was held against the petitioner. Being aggrieved, the petitioner moved this Court and obtained the present rule. ( 2 ) THE respondent has filed affidavit. In the affidavit the respondent, inter alia, stated that Baidya Nath Banerjee, the husband of the petitioner, transferred about 135. 87 acres of Khas land to his near relations, namely, wife, sons, daughter, son's wife etc. by several deeds of gift executed on 6th of January, 1954. All the registered deeds except the one made in favour of his son's wife, were stated to be confirmatory deeds of alleged oral gifts made in 1944 by Sm. Mirganayana Devi, the mother of the said Baidya Nath Banerjee. By virtue of the confirmatory deeds, the alleged transferees, including the petitioner, purported to get their names recorded in be finally published records of rights. In November 1961 the Revenue Officer, namely, A. S. O. and Charge Officer, Birbhum, Suri, initiated a proceeding under Section 5a of the Act after notice to the alleged transferor and the transferees. By order dated 1st August 1961 the said Officer concerned accepted the contention of the alleged transferor and held that the transfer was made in 1944 and the deeds dated 6th January 1954 were nothing but confirmatory deeds and therefore the transfer was effected in 1351 B. S. and not during the prohibited period, that is 5. 5 1953 and the date of vesting. Thereafter in 1967 the Assistant Settlement Officer, Mr. H. K. Sinha, started a proceeding under Section 5a of the Act against the transferor and the transferee and in the earlier order under Section 5a there was no declaration as to whether the transfer was bonafide or malafide. 5 1953 and the date of vesting. Thereafter in 1967 the Assistant Settlement Officer, Mr. H. K. Sinha, started a proceeding under Section 5a of the Act against the transferor and the transferee and in the earlier order under Section 5a there was no declaration as to whether the transfer was bonafide or malafide. The Assistant Settlement Officer by order dated 24th October, 1967 held that the order dated 1st August, 1961 was merely an opinion and not an order under Section 5a of the Act and that it was made without considering the relevant facts and circumstances of the case as also without notice to the Collector, Birbhum, who was a necessary party to a proceeding under Section 5a and without giving him any opportunity of being heard. In the aforesaid proceeding under Section 5a the alleged transferees in spite of notices being served, did not appear at the hearing. All the cases were heard analogously and covered by the same judgment. By order dated 28th November, 1967 the Assistant Settlement Officer held that all the transfers dated 6th January, 1954 were hit by section 5a of the Act and hence the transfers were cancelled. Against the said order dated 28th November, 1967 both the transferor and transferees preferred 12 appeals. The appeals were heard by the Special Judge, Birbhum, who by an order dated 31st July, 1968 directed the case to be remanded back for further hearing inasmuch as, according to the learned Judge, the parties were not given proper opportunity of being head. The learned Judge, however overruled the contention of the appellants that the fresh proceedings under Section 5a would be barred by principles of res-judicata. Against the said appellate order, the petitioner moved this Court and obtained the present rule. The respondents denied further that the second proceeding under Section 5a was not maintainable. On these pleadings the parties came to trial. ( 3 ) THE only point argued by Mr. Against the said appellate order, the petitioner moved this Court and obtained the present rule. The respondents denied further that the second proceeding under Section 5a was not maintainable. On these pleadings the parties came to trial. ( 3 ) THE only point argued by Mr. P. N. Mitra on behalf of the petitioner is that once an order under Section 5a of the Act has been made and once it has been held that the transfer in question does not come within the mischief of Section 5a of the Act, the Revenue Officer concerned as a delegate of the State Government, cannot reopen, re-consider or review the order already passed under Section 5a of the West Bengal Estates Acquisition Act. ( 4 ) ELABORATING the point, Mr. Mitra contended that the power of enquiry under Section 5a of the West Bengal Estates Acquisition Act was given to the State Government. Under Section 5a (4) of the Act this power can be delegated by the State Government to an officer of the State Government. Therefore, when the delegate4 of the State Government holds the enquiry, in law this is an enquiry by the State Government. In support of this point, Mr. Mitra relied upon the Supreme Court's decision in the case reported in (1) A. I. R. 1963 SC 1903, Roop Chand v. State of Punjab and another ). ( 5 ) MR. Raichowdhury on behalf of the respondents, however, has contended that the power is an executive power and if that is so, the State Government has the power to reconsider, review or 're-thinking' on the matter. Even when the State Government once exercise the same power by delegation of the power to his officer, the State Government has not been divested of the power under Section 5a of the Act. It is argued by Mr. Raichowdhury that the power being an executive power and so by means of that power attached to it, the State Government or his delegate can reopen the matter. ( 6 ) SECTION 5a of the West Bengal Estates Acquisition Act is in the following terms:"5a. Restriction on certain transfers. It is argued by Mr. Raichowdhury that the power being an executive power and so by means of that power attached to it, the State Government or his delegate can reopen the matter. ( 6 ) SECTION 5a of the West Bengal Estates Acquisition Act is in the following terms:"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 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 bonafide. (2) If after such enquiry the State Government finds that such transfer was not bonafide, 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 bonafide, 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 a land to be retained by him. (4) The State Government may delegate all or any of its powers under this section to such officers in its service as it may deem fit. (4) The State Government may delegate all or any of its powers under this section 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 section 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 purpose of taking evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents and shall be deems to be a civil court within the meaning of sections 480, 481 and 482 of the Code of Civil Procedure, 1898 (Act V of 1989 ). (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 or an Additional District Judge appointed by the State Government for the purpose of this section 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 bonafide 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. (7) In this Section, (i) a transfer shall be held to be not bonafide 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 grandchild, apparent, grand parent a brother, a sister, a brother's son, a sister's son, a daughter's husband, a son's wife, a wife's brother or sister, or a brother's wife, made between the 5th day of May, 1953 and the date of vesting shall be presumed to be not bonafide until the contrary is 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. ( 7 ) UNDER Section 5a the State Government has the power to initiate the proceeding between the period 5th May, 1953 and the date of vesting in respect of a transfer if the State Government is of the opinion there are prima-facie reasons for believing that such transfer was not bonafide and after holding the enquiry if the State Government finds that such transfer was not bonafide, it shall make an order to that effect and thereupon the transfer made during the prohibited period shall stand cancelled from the date on which it was made or purported to have been made. Such cancellation however will not affect any rights which the transferor or the transferee may otherwise have against each other. Such cancellation however will not affect any rights which the transferor or the transferee may otherwise have against each other. Under sub-section (3) (i) of Section 5a it is provided that 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 purposes of this Act; under Section 5a (3) (ii) the land transferred shall be taken into account in calculating the land which may be retained by the transferor as if such land or part thereof had never been transferred by the transferor or such land or any part had been retained by transferor. The State Government has a power to delegate all or any of the powers to such officer in its service as it may deem fit under Section 5a (4) of the Act. Section 5a (5) prescribes the procedure and section 5a (6) provides for appeal against the order made under sub-section (2) or (3 ). Section 5a (7) provides that the transfer shall be held to be not bonafide 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 payable. It further provides that a transfer in favour of one or more of the following relatives of the transferor, namely, 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, a wife's brother or sister, or a brother's wife made during the prohibited period shall be presumed to be not bonafide until the contrary is proved. Transfer in the Act means a transfer by sale, mortgage, lease, exchange, or gift and the 'transferor' and the 'transferee' include the successors-in-interest of a transferor or a transferee. Section 5a (6) provides for an appeal to the Special Judge. Rules in respect of the proceeding under Section 5a is to be found prescribed in rule 3a of the West Bengal Estates Acquisition Rules. Rule 3 was inserted by notification dated 30th November, 1954. On the date of notification in 1954, rule 3a of the Estate Acquisition Rules reads as follows: -"3a. PROCEDURE for enquiry under Section 5a (1 ). Rules in respect of the proceeding under Section 5a is to be found prescribed in rule 3a of the West Bengal Estates Acquisition Rules. Rule 3 was inserted by notification dated 30th November, 1954. On the date of notification in 1954, rule 3a of the Estate Acquisition Rules reads as follows: -"3a. PROCEDURE for enquiry under Section 5a (1 ). The procedure for enquiry under sub-section (1) of Section 5a shall be as follows: - (1) Where, in the opinion of the State Government or of any officer in its service to whom its powers under sub-section (1) of Section 5a may be delegated, there are prima facie reasons for believing that transfer of any land made by an intermediary between the 5th day of May, 1953 and the date of vesting is not bona fide, the State Government or such officer may record a formal order to that effect. (2) Thereafter the State Government or such officer cause to be served on the transferor and the transferee of such land and also n the bargadar, where such land is under the cultivation of a bargadar and such other party as may be found to be interested in or affected by the transfer a copy of such order and a notice requiring them to produce necessary documents and other evidence for providing whether or not the transfer of such land was bonafide 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, the bargadar 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. If, however, the transferor, the transferee, the bargadar or other party referred to in sub-rule (2) does not appear on the date and at the time and place fixed in the notice under sub-rule (2) for the for the production of the documents and evidence and for the hearing of the case on any subsequent date to which the hearing may be adjourned the State Government or such officer, as the case may be, shall be entitled to proceed to hear the case and to make such order ex-parte against the non-appearing transferor, transferee, bargadar or other party. "on 24th December, 1959 Rule 3a (2) was amended and after the words' 'such other party as may be found to be interested in", the words," "or affected by", were inserted by the said amendment. It appears that after the word "evidence" the words "for providing whether or not" were inserted. In 1964, Rule 3a (3) was substituted. Rule 3b provides for the procedure for disposal of appeal under Section 5a (6) of the Act. Rule 3b is in the following terms: -"3b. PROCEDURE for disposal of appeals under Section 5a (6) - the procedure for disposal of appeal under sub-section (2) of section 11 as laid down in rule 9 shall, mutatis mutandis, apply to the procedure for disposal of appeals under sub-section (6) of Section 5a". Rule 9 also provides for the procedure for disposal of appeals under Section 11 (2) which is as follows: -"rule 9. Procedure for disposal of appeals under Section 11 (2) - the procedure of disposal of appeals under sub-Section (2) of Section 11 shall be as follows: - (a) A petition setting forth therein the grounds of appeal, which shall be signed by the appellant or his pleader, shall be presented to the Special Judge. Such petition shall be accompanied by a copy of the order appeared against. (b) The appellant shall not, except by leave of the Special Judge, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Special Judge in deciding the appeal shall not be confined to the grounds of objection set forth in the appeal or taken by leave of the Judge. (b) The appellant shall not, except by leave of the Special Judge, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Special Judge in deciding the appeal shall not be confined to the grounds of objection set forth in the appeal or taken by leave of the Judge. (c) Where the petition is defective, the Special Judge may return the same for the purpose of being amended within a time to be fixed by him or such petition may be amended then and there. (d) The Special Judge may stay further proceedings in respect of recovery of fines under the order of the Collector until the disposal of the appeal on sufficient grounds being shown. (e) The Special Judge shall fix a date for the hearing of the appeal within six weeks of the presentation of the petition and shall cause notice thereof to be served on the Collector within ten days from the date of presentation of the petition. The appeal shall be disposal of as soon as possible. " ( 8 ) NOW coming to the point raised by Mr. Mitra it is not disputed in this case that the power has been delegated to the officer concerned. It is also not disputed that the officer concerned passed the order in 1961. In Case No. 190 of 1961 the Revenue Officer concerned held that the transfer does not come within the mischief of section 5a of the West Bengal Estates Acquisition Act. The subsequent proceeding of 1967 was initiated by another Revenue Officer on the basis of the delegated power. ( 9 ) IN my opinion, Mr. Mitra's contention that the second enquiry is incompetent must be accepted to be correct. In the decision reported in (2) ILR 1966 (1) Cal. it has been hold by this court in CR No. 4658 of 1960 as follows: - "no doubt it can be said without hesitation that successive enquires under Section 5a of the Act between the same transferor and the transferee regarding the same plot of land under the same transfer cannot be resorted to. That will not only by a source of endless harassment but will also lead to endless confusion by the possibility of divergent decisions and orders of the Government. That will not only by a source of endless harassment but will also lead to endless confusion by the possibility of divergent decisions and orders of the Government. Therefore, within the limits of the order under Section 5a and within the limits of the condition of (a) the same parties, (b) the same transfer and (c) the same land there exist the possibility and scope for the application of the general principles of res judicata. " ( 10 ) MR. Sen Gupta however contended that the principles of res judicata has no application. Mr. Sen Gupta is also right in his contention as has been held by the said judgment of this court decided on 28th August, 1963. In the said case it has also been held that the principles of res judicata in terms do not apply in the strict sense of the terms. There is no doubt that section 11 of the Civil Procedure Code does not in terms apply in section 5a proceeding but independent of the section 11, the principles analogous to the res judicata are applicable. ( 11 ) MR. Mitra again contended that under Section 5a of the West Bengal Estates Acquisition Act it is the State Government and the State Government alone is the authority to make an order. Under Section 5a (4) of the Act, the State Government may delegate all or any of its powers under this section to such officers in its service as it may deem fit. In the present case, it is admitted that its power has been delegated to the Revenue Officer concerned. Thereafter Mr. Mitra contended that the order made by the delegatee is in fact the order of the State Government. In support of his contention, Mr. Mitra referred to the case reported in (1) AIR 1963 SC 1503 (Roop Chand v. State of Punjab and another ). Mr. Sen Gupta however has contended that the power exercised under Section 5a (4) of the Act is one by the delegatee and is a quasi-judicial power and unless the State Government is also a party in the proceeding the power cannot be binding on the State Government. In my opinion, Mr. Sen Gupta is not right in his contention. The power under Section 5a is a power given to the State Government. In my opinion, Mr. Sen Gupta is not right in his contention. The power under Section 5a is a power given to the State Government. Under Section 5a (4) of the Act, this power can be delegated to any officer of the State Government. The power exercised by the delegatee is, in fact, the power exercised by the delegator. As soon as the delegatee assumes the power under Section 5a it is deemed to be a power being exercised under the Section, that is, under Section 5a of the Act. Assuming for a moment that the power under Section 5a has not been delegated under Section 5a (4) of the West Bengal Estates Acquisition Act and the State Government exercised the power under Section 5a, even then the State Government should be made a party in this proceeding. In my opinion, this is wholly unnecessary. Even if there be any doubt, in my opinion, this doubt has been set at naught by the Supreme Court pronouncement in the case reported in (1) AIR 1963 SC 1503 (Roop Chand v. State of Punjab and another ). In that case the Supreme Court was considering the provision of sections 41 and 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (Pun. 50 of 1948 ). The provisions of the said Act, being sections 41 and 42, are as follows:"41. The State Government may for the administration of this Act, appoint such persons as it thinks fit, and may be notification delegate any of its powers of functions under this Act to any of its officers either by name or designation. 42. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act call for and examine the records of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit. "the question then arises whether, the order, made under Section 21 (4) deciding the appeal, by an officer who is delegated to hear the appeal is the order of the officer or of the Government. In paragraphs 11, 12 and 13 of the said judgment, the Supreme Court has stated as follows: -"11. "the question then arises whether, the order, made under Section 21 (4) deciding the appeal, by an officer who is delegated to hear the appeal is the order of the officer or of the Government. In paragraphs 11, 12 and 13 of the said judgment, the Supreme Court has stated as follows: -"11. The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under Section 21 (4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by S. 21 (4 ). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does go for the Government. It is of interest to observe here that Wills J. said in Huth v. Clarke, (1890) 25 QBD 391 that 'the ward delegate means little more than an agent'. An agent of course exercise no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under S. 41 (1) of the power of the Government under S 21 (4), is for the purpose of the Act, an order of the Government. An agent of course exercise no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under S. 41 (1) of the power of the Government under S 21 (4), is for the purpose of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government - and of course it had to be one or the other - then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorized by the Act. What is true of S 21 (4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under S. 41 (1 ). If we are wrong in the view that we have taken then in the case of an order made by an officer as delegate of the Government's power under S. 21 (4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done. "12. Again, if an order passed by an officer to whom a power had been delegated by the Government under Section 41 (1) was an order passed by the officer, then an order made by an officer to whom power under S. 42 had been delegated would also be an order by officer within the meaning of S. 42. That order would then be liable to be interfered with by the Government under S. 42 and if such interference is again not by the Government itself but by another officer as its delegate, then in that way the process of interference might be repeated for ever. Obviously an interpretation leading to such a result cannot be correct. It is of some interest to point out here that in the present case the order under S. 42, that is, the impugned order, had not been made by the Government itself but by the Director, Consolidation of Holdings to whom the Government's power under that Section had been delegated. "13. It is of some interest to point out here that in the present case the order under S. 42, that is, the impugned order, had not been made by the Government itself but by the Director, Consolidation of Holdings to whom the Government's power under that Section had been delegated. "13. IT was however said by the learned Advocate General that this absurd result would not follow because power under S. 42 can be exercised only one in respect of the same order. We will, assume that power can be exercised in respect of the same order only once. But even so it seems to us that if the order by a delegate officer is an order within S. 42, then the power under that section can be exercised repeatedly. This will appear clearly if we take an illustration. Suppose delegate officer A makes an order under S. 21 (4 ). This order can be interfered with by the Government under S. 42. Now suppose the Government delegates its power under S. 42 to officer B and Officer B then makes an order under S. 42 as delegate of Government. That would be an order made by a delegate officer and capable of being interfered with under S. 42. This exercise of power would be in respect of an order of officer B and therefore not in respect of the same order in respect of which power under S. 42 had been once exercised, namely, the order by officer A. Now assume this time delegate officer C exercises interfered with under S. 42. Again the order made by him would interfered with under S. 42. Repeated exercise of power would be in respect of successive orders and never in respect of the same order. In this way finality in the matter can never be reached. We must reject an interpretation which prevents finality being reached. On the interpretation that we have suggested the matter would be finally decided; the power under S. 42 cannot be exercised more than once in respect of the same matter". Therefore, from the principles laid down by the Supreme Court as above it is clear, that the order passed under Section 5a of the Act by an officer who is delegate of the power is an order made by the State Government itself. Therefore, from the principles laid down by the Supreme Court as above it is clear, that the order passed under Section 5a of the Act by an officer who is delegate of the power is an order made by the State Government itself. In the said judgment also it has been made clear that once a power is exercised under Section 21 (4) of the Punjab Act it cannot be exercised more than once in respect of the same matter. ( 12 ) MR. Sen Gupta, followed by Mr. Raichowdhury and Mr. P. Roy contended that in (3) AIR 1973 Cal 148 the Special Bench has also held that the power under Section 5a of the Act is an executive power and as such there is no limitation attached to it and the State Government can reopen it. In my opinion, the Special Bench has held that the power under Section 5a of the Act is an executive power but the fact remains that the executive power will be exercised in a quasi-judicial way and in accordance with the procedure provided in the statute by the State Government. They will have to give the notice of the hearing and they have all powers of the Civil Court for the purpose of taking evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents etc. as is provided in Section 5a (5) (ii) of the Act. It has been provided that this power exercised by the State Government under Section 5a is appealable to the District Judge under Section 5a (6) of the Act. In the circumstances therefore, it cannot be said that there is no finality within the limits of Section 5a of the Act at all. In my opinion, once this power has been exercised under Section 5a of the Act this cannot be reopened under the same provision by a subsequent proceeding. If that power is conceded, then with the change of officers of delegates, there will be divergent opinions and divergent orders passed by different delegates under Section 5a of the Act in respect of the same matter. Mr. Raichowdhury however has contended that the order passed in the proceeding under Section 5a is in 1961 and was to the effect that section 5a does not apply and the subsequent proceeding under the same section is maintainable. In my opinion, that cannot be correct. Mr. Raichowdhury however has contended that the order passed in the proceeding under Section 5a is in 1961 and was to the effect that section 5a does not apply and the subsequent proceeding under the same section is maintainable. In my opinion, that cannot be correct. The order made in 1961 was under section 5a where it was held that the transfer was beyond the scope of section 5a of the Act. In my opinion, in order to initiate a proceeding under Section 5a, the delegate officer must have a prima facie opinion and if it is found after hearing the transferee or transferor that section 5a has no application that will be as much binding on the parties as on any other delegate officer as a finding of fact regarding the bonafide of a transfer. It has been held by Mr. Justice A. K. Sen in (4) A. I. R. 1971 Cal 400 at page 401 that "it would be also necessary for a competent authority while adjudicating a proceeding under Section 5a of the said Act to adjudicate and decide whether the transfer really comes within the mischief of the section itself and his Lordship further held that 'even if I assume for a moment that such conclusion was reached erroneously still in my view the decision is binding on the authorities". I agree respectively with the view taken by Mr. Justice A. K. Sen. Once the power in respect of the same plot and in respect of the same parties has been exercised, it cannot be reagitated, reopened by different officers. ( 13 ) MR. Raichowdhury argued that no notice of the enquiry was given to the State. It has not been provided in Section 5a of the Act that notice is to be given to the State Government because the State Government itself exercised the power under Section 5a through its delegate but when the appeal is to a different body, that is, to the District Judge the rules provided for notice to the Collector. It has been argued again by the State Government that there is a power of review inherent in the delegated officer. It has been stated that the officer concerned has all the powers of a Civil Court. It has been argued again by the State Government that there is a power of review inherent in the delegated officer. It has been stated that the officer concerned has all the powers of a Civil Court. It must be stated that the officer under Section 5a of the Act has limited powers of a Civil Court for the purpose of taking evidence, administrating oaths, enforcing the attendance of witnesses and compelling the production of documents and shall be deemed to be within the meaning of sections 480 and 482 of the Civil Procedure Code, 1898. The provision under Section 5a of the Act does not provide for the inherent power of civil court or for the power of review. A power of review is a creature of a statute and unless such power is given, no power of review can be read into it. There is no doubt that the statute does not provide for a power of review of the order passed under Section 5a of the Act. It has been held by the Supreme Court in the case reported in (5) AIR 1965 SC 1457 (Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and another) in paragraph 23 as follows: -"23. The order of the Mahalkari under S. 29 was passed on December 25, 1957 and was appealable under Section 74. By S. 79 the appeal could be filed within 60 days from the date of the order, No appeal was filed within the period provided for by it. The Collector could at any time thereafter exercise his revisional power under S. 76a either suo motu, i. e. of his own or on a reference made by the Divisional Officer or the State Government. In the exercise of his revisional powers, the Collector could call for the record of the proceedings of the Mahalkari and pass such order as he deemed fit. There were two limitations on this power of revision. Firstly, the record could not be called for after the expiry of one year from the date of the order. Secondly, the order could not be modified, annulled, or reversed unless opportunity had been given to the interested parties to appear and be heard. In the instant case, there was no reference by any authority. Firstly, the record could not be called for after the expiry of one year from the date of the order. Secondly, the order could not be modified, annulled, or reversed unless opportunity had been given to the interested parties to appear and be heard. In the instant case, there was no reference by any authority. The Collector could still exercise his revisional powers, but he seldom exercise such powers unless some irregularity or illegality is brought to his notice by the aggrieved party. Though S. 76a, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76a. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders the Collector decided that there was no ground for interference with the Mahalkari's order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkari's order. He did not specifically deal with the point as to the non-maintainability of the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These order as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S 76a. As he refused to modify, annual or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial and were final. As he refused to modify, annual or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial and were final. The Act does not empower the Collector to review an order passed by him under S. 76a. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that that were grounds for annulling or reversing the Mahalkari's order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. "it is clear that the Supreme Court held that a quasi-judicial power under Section 76a cannot be reviewed in the absence of any power of review, and as such the Collector and subsequently reconsider his previous decision. In my opinion, the principle applies in all force in the facts of the present case as has also been held by the Supreme Court in the case reported in (6) AIR 1966 SC 1164 (The Sub-Divisional Officer v. Raja Srinivasa Prasad Singh ). Mr. Raichowdhury contended that unless the State Government is made party, the decision is not binding on the State Government and relied upon the observation of the Supreme Court in paragraph 12 which is as follows:"12 Here the question is not one of reopening the Compensation Roll or the objection case for purposes of making a correction or for review. The question here is that one of the necessary parties to the objection cases was neither joined nor noticed to appear. The most important party, besides the objector, claiming enhancement of the compensation, was the State which has to pay the enhanced compensation. That party had to be joined to the proceedings under S. 343 and a notice or intimation of the date of the hearing had to be sent as laid down in S. 343. Section 343 prescribes not only the manner of serving notices but lays down that the State Government must be joined. Every Court and tribunal is entitled to reopen a proceeding which has proceeded ex-parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. Section 343 prescribes not only the manner of serving notices but lays down that the State Government must be joined. Every Court and tribunal is entitled to reopen a proceeding which has proceeded ex-parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the Court may in such a case reopen the proceeding to give the party to enhance to state its case. "in my opinion, the Supreme Court judgment is clearly distinguishable. The Supreme Court was considering the U. P. Zamindari Abolition and Land Reforms Act (1950 ). Section 343 of the Act clearly provides that the State Government must be a party in a proceeding under Chapters 3 to 5 which deal with the assessment of compensation. The provisions of the Act provide further for serving of a notice on the State Government and as such it is incumbent upon the Compensation Officer to send a notice to the State Government which was not done and in the facts of this case the Supreme Court held that the Court had a power to reopen the proceeding to give the party a chance to state its case. In this case, however, it is the State Government which under Section 5a of the Act has a power to declare a particular transfer as cancelled. Therefore, the question of notice being given to the State Government does arise and in fact has not been provided in Section 5a (2) or (3) of the Act. In the circumstances, therefore, in my opinion this judgment does not support the respondent's contention and on the other hand supports Mr. Mitra's contention. ( 14 ) IN my opinion, therefore, the orders complained of cannot be sustained and must be held to be without jurisdiction. ( 15 ) THE notice under Section 5a and the appellate order thereon must therefore stand quashed. The rule is therefore made absolute but without costs. Rule made absolute.