Chitta Ranjan Ghose v. State of West Bengal — 1976 DIGILAW 279 (CAL)

JUDGMENT Common questions of law are involved in all these Rules. The facts and circumstances of these cases are also more or less similar. Accordingly, for the sake of convenience all these Rules were heard together. My judgment in CR No. 556(w) of 1974 shall govern all these cases. 2. The petitioners are the transferees of 1.42 acres of land, being plot No. 18 under khatian No. 80 of mouza Harishinghpur within Chandrakona Police Station in the district of Midnapore. On 14th of April 1972 the respondents 3 and 4 along with their father, who was alive at that time, alienated the aforesaid land to the petitioners absolutely by a registered sale deed on a consideration of Rs. 2,999/-. Since the date of the said purchase, the petitioners are in possession of the said land and have been cultivating the same after investing a good amount of money in the aforesaid land by way of development. It appears from the recitals of the deed of sale that the said land was sold to the petitioners for repairing of the residential house of the respondent no. 3 and his father, since deceased, and for cultivation of the lands by adopting better methods and also for purchasing land nearer to land of respondent no. 4. The petitioners never entered into any oral contract with the respondent Nos. 3 and 4 to retransfer the said land at any time thereafter on repayment of the consideration money. 3. The West Bengal Legislature passed the West Bengal Restoration of Alienated land Act (West Bengal Act XXIII of 1973) which duly received the assent of the President of India and was published in the Calcutta Gazette {Extraordinary) on the 5th of May, 1973. By virtue of the rule making powers as conferred by section 9 of the said Act, the West Bengal Legislature by a notification dated 20th May, 1973 made certain rules prescribing certain procedures to be followed in applying certain sections of the said Act, By the said Act, a Special Officer was appointed by the State Government to discharge the functions of the Special Officer under the Act. The respondent No.2 is the said Special Officer. The respondent Nos. The respondent No.2 is the said Special Officer. The respondent Nos. 3 and 4 taking advantage of the enactment of the said Act, made an application before the said Special Officer, which was registered as case No.6 of 1974 and thereupon, the said Special Officer in exercise of his powers under sub-section (2) of section 4 of the said Act, served a notice upon the petitioners as transferees informing them as to the filing of the said application and calling upon them to appear on 21st June, 1974 with all evidence as might be adduced when the case would be heard by the said respondent no. 2. In the application filed by the respondents nos. 3 and 4, it is alleged that they received Rs. 2,300/- instead of Rs. 2,999/- as stated in the sale deed ; they had not more than 2.43 acres of land, apart from the disputed 1.42 acres of land sold by them to the petitioners. They sold the land for meeting certain necessary expenses. It is further alleged in the said application that there was an oral contract of retransferring the land as soon as the said Rs. 2,300/- would be repaid by them. The petitioners being aggrieved by the said notice issued by the said Special Officer, moved this Court under Article 226 of the Constitution on September 9, 1974 and obtained the present Rule. 4. The petitioners have challenged the legislative competence of the State of West Bengal to enact the West Bengal Restoration of Alienated land Act, 1973. It is stated in the writ petition that the said Act is ultravires Articles 14, 19 and 31 of the Constitution. Provisions for reconveyance of the transfer of land made after the expiry of the year 1967 is arbitrary and without any reasonable basis. Selecting transfers made in a particular year, viz. 1967 as the material year for the purpose of restoration, is without any basis. The definition of the 'land' is unmeaning and its inclusive part is unforceable and in that view of the matter, the said Act in its entirety is inoperative and unforceable. Four conditions precedent as provided in Section 4 of the Act are so vague that even a man of ordinary prudence is required to guess its meaning and may differ as to its application. Four conditions precedent as provided in Section 4 of the Act are so vague that even a man of ordinary prudence is required to guess its meaning and may differ as to its application. Sub-section (4) of Section 4 of the Act suffers from the vice of excessive delegation of legislative powers upon the Special Officer appointed under the Act. Sub-section (5) of Section 4 of the Act will unsettle the settled principles of Jaw. That provision is against the public policy and is purported to open a flood gate of prejury and false evidence. Section 7 of the said Act provides a bar of jurisdiction of civil courts with respect to the matters decided by the Special Officer. It not only amounts to deprivation of the fundamental rights of the citizen but also an encroachment on the judiciary by the executive. 5. Before I deal with the arguments of learned counsel appearing on behalf of the different parties of the different cases. I should set out the objects and reasons of the West Bengal Restoration of Alienated Land Act, 1973 and also some of the salient features of the said Act. 6. In the Calcutta Gazette (Extraordinary) the statement of objects and reasons of the West Bengal Restoration of Alienated Land Bill, 1973 has been published. Therein it is stated "Many raiyats of small means were forced to alienate their lands being in distress or in need of money for maintaining themselves and their families or for meeting their costs of cultivation. There are also cases where the transfer was made with an agreement for reconveyance of the land transferred, to the transferor. The Bill has been framed with a view to providing relief to poor raiyats through restoration of land thus alienated by them within the last five years". 7. In the Preamble to the Act it is stated "An Act to provide for the restoration of land alienated under certain circumstances and for matters connected therewith," 8. The Act received the assent of the President of India on 5th of May, 1973. "Land" has been defined in sub-clause (2) of Section 2 of the Act which means agricultural land and includes homestead, tank, well and water channel. The Act received the assent of the President of India on 5th of May, 1973. "Land" has been defined in sub-clause (2) of Section 2 of the Act which means agricultural land and includes homestead, tank, well and water channel. 'Special Officer' has been defined in sub-clause (4) of Section 2 which means an officer not below the rank of a Sub-deputy Collector appointed by the State Government to discharge the functions of a Special Officer under the Act. By the Amendment Act of 1975 (West Bengal Act I of 1975) which came into force on 19th of March, 1975, Clause 4 of section 2 has been substituted. Now, under the amended definition, 'Special Officer' means any Gazetted Officer appointed by the Commissioner of a Division to discharge within the Division the functions of a Special Officer under this Act. Section 3 of the Act provides an overriding effect of the provisions of the Act to any other law for the time being in force. Section 4 of the Act lays down the procedure for effecting restoration of land alienated under certain circumstances. Four conditions have been enumerated therein. Before the commencement of the Act if a person bolding not more than two hectares of land in the aggregate transferred the whole or any part of his land by a sale deed to any person and if such transfer wag made after the expiry of the year 1967 and if such transfer was made by the transferor (i) in distress, or (ii) in any need of money for the maintenance of himself and his family, or (iii) for the meeting the costs of his cultivation, or (iv) an agreement written or oral, for reconveyance of the land transferred, to the transferor, then such transferor may within five years from the date of said transfer or within two years from the date of the commencement of the Act, whichever period expires later, may make an application in the prescribed manner to the Special Officer for restoration of such land to him. 9. The Special Officer after causing notice to be served upon the transferee and considering the evidence adduced by the parties shall make an order in writing restoring the land transferred to the transferor and direct him to pay, in such number of equal instalments not exceeding ten by such dates as may be specified in the order. 9. The Special Officer after causing notice to be served upon the transferee and considering the evidence adduced by the parties shall make an order in writing restoring the land transferred to the transferor and direct him to pay, in such number of equal instalments not exceeding ten by such dates as may be specified in the order. The rate of interest will be 4% per annum. The amount of any compensation for improvement effected to such land shall be determined by the Special Officer and would be allowed to the transferee. The first of the instalments provided in the order shall be payable within three months from the date of the order. 10. Sub-section (5) of Section 4 of the Act provides that notwithstanding anything contained in the Indian Evidence Act, 1872, any evidence adduced by a transferor varying, adding to, or substracting from, the terms of the sale deed to prove the necessity or purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor shall be admitted. Section 7 provides a bar to the exercise of jurisdiction of High Court and Civil Courts. It is stated that save as otherwise provided in the Constitution of India, neither the High Court nor any Civil Court shall have jurisdiction in any matter which the Special Officer is empowered to dispose of under this Act : Provided that any person who is dissatisfied with any order made under sub-section (4) of Section 4 may, within thirty days from the date of such order, apply in the prescribed manner to the Collector and the decision of the Collector upon such appeal shall be final. In section 8, the Special Officer shall have all the powers of a Civil Court under the Code of Civil Procedure, for the purposes of receiving evidence, administering oaths, enforcing the attendence of witnesses and compelling the production of documents. 11. On 1st of April, 1976 by the West Bengal Act XX of 1975, the Act XXIII of 1973 has been further amended. Two new sections 8A and 8B, have been incorporated ; section 8A provides that no payment is required to be made by transferor for obtaining restoration of possession of his land with effect from the date of commencement of the West Bengal Rural Indebtedness Relief Act, 1975. Two new sections 8A and 8B, have been incorporated ; section 8A provides that no payment is required to be made by transferor for obtaining restoration of possession of his land with effect from the date of commencement of the West Bengal Rural Indebtedness Relief Act, 1975. In case where possession has already been obtained, payment of instalments or lump amount shall be deferred for a period of two years. The power has also been given to the State Government to extend the period of payment by a notification in the official gazette. But such extension shall not exceed the period of one year at a time and the transferor shall not be liable to pay interest upon any amount the payment of which is stayed under the said section. 12. Rule making powers have been conferred upon the State Government under Section 9, for carrying out the purposes of the Act. Rules 6 and 7 of the West Bengal Alienated Land Rules, 1973 lay down the manner of determination of the amount of compensation for improvement and of the net income under sub-section (4) of Section 4, by the Special Officer. 13. By the Constitution (Fortieth Amendment) Act, 1976, published in the Extraordinary Issue of the Gazette of India dated May 27, 1976 the West Bengal Restoration of Alienated Land Act, 1973 has been placed as the entry No. 182 in the Ninth Schedule to the Constitution. When the said Act is placed into the Ninth Schedule, Art. 31-B of the Constitution becomes applicable to it. The effect of the inclusion of the Act in the Ninth Schedule is that none of the provisions of the 1973 Act can be challenged on the ground of infringement of any of the fundamental rights guaranteed in Part III of the Constitution. So, in these Rules the petitioners cannot challenge that some of the provisions of the Act are violative of Arts. 14 and 19 of the Constitution. 14. Item 18 of List II of the 7th Schedule deals with Land, that is to say, rights in or over land, land tenures including ,the relation of landlord and tenant, and the collection of rents ; transfer and alienation of agricultural land; land improvement and agricultural loans ; colonization. 14 and 19 of the Constitution. 14. Item 18 of List II of the 7th Schedule deals with Land, that is to say, rights in or over land, land tenures including ,the relation of landlord and tenant, and the collection of rents ; transfer and alienation of agricultural land; land improvement and agricultural loans ; colonization. Acquisition of land is included in entry No. 42 of List III and transfer of property other than agricultural land is included in entry 6 of List III. 15. Elaborate arguments have been advanced by the learned Counsel appearing on behalf of the petitioners in the different Rules. I have summarised the arguments in seriatim. It is urged that the West Bengal Restoration of Alienated Land Act, 1973 is beyond the legislative competence of the State to enact. It is not covered by entry 18 of List II of the 7th Schedule to the Constitution. The Act provides not for "rights in or over land", nor does it relate to 'transfer and alienation of agricultural land". The provisions of Act clearly indicate that it is a law of restoration of land. Section 4 is the charging section and all its sub-sections relate to restoration of land and not alienation. None of the sections really makes any provision relating to alienation of land. It does not relate either to any "rights in land" which means the proprietory rights or raiyatee rights or similar rights. It is contended that even if it is a law of alienation the entry 18 of List II permits the State Legislature to make law relating to agricultural land only. Sub-clause (2) of Section 2 of the said Act defines the word "land" which means agricultural land and includes homestead, tank, well and water channel. According to the said definition, 'land' means two categories of land-firstly. Agricultural land and secondly, homestead, tank, well and water channel. Having defined the 'land" to be what it is, "homestead, tank, well and water channel" do not become agricultural land. It is urged that the Act is not a law enacted by virtue of entry 6 in the concurrent list. It does not provide the transfer of property other than agricultural land. Sub-section (4) of Section 4 refers to transfer as also restoration. "Restoration' is not covered by item 42 of List III of 7th schedule which relates to acquisition and requisitioning of property. It does not provide the transfer of property other than agricultural land. Sub-section (4) of Section 4 refers to transfer as also restoration. "Restoration' is not covered by item 42 of List III of 7th schedule which relates to acquisition and requisitioning of property. None of the entries either in List II or in List III of the 7th Schedule empowers the State Legislature to enact the law of restoration which provides for a special mode of requiring of property which under certain circumstances had been transferred within a particular period. It is submitted that such a law would be enacted only by the Parliament under Entry 97 of List I. Laws to be enacted under List I can only be done by the Parliament in exercise of powers under Art. 246(1) of the Constitution. 16. In (1) A. S. Krishna v. State of Madras, AIR 1957 SC 297 Venkatarama Aiyer, J. said that when a law is impugned on the ground that it is ultravires the powers of the legislature which enacted it, what has to ascertain is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view to such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portion hereof are ultravires, and what are not. 17. The pith and substance of the 1973 Act is to restore the rights over the land of the raiyats who alienated their rights in land within the last five years. The purpose of Act is neither for acquisition nor for aquisitioning of the property without any compensation. 18. 17. The pith and substance of the 1973 Act is to restore the rights over the land of the raiyats who alienated their rights in land within the last five years. The purpose of Act is neither for acquisition nor for aquisitioning of the property without any compensation. 18. In (2) Sriram Ram Narayan v. State of Bombay, AIR 1959 SC 459 , the Supreme Court held that restriction or extension of existing interest in land, including provision for the statutory purchase by a tenant of land belonging to the landlord come within entry 18. In that case the legislative competence of the State Legislature was challenged in amending the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1948. Section 2(8) of the said Act defined "land" to mean ; (a) land which is used for agricultural purposes, and includes–(i) the sites of farm, buildings, appurtenant to such land and used for agricultural purpose ; (b) (ii) the sites of dwelling houses occupied by agriculturals * * and land appurtenant to such dwelling houses. Section 32 of the said Act provides that "on the 1st of April, 1957 (hereinafter referred to as the "tillers, day") every tenant shall, subject to the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free from all encumbrances subsisting thereon on the said day, the land held by him as tenant". * * Provided certain conditions are fulfilled. The Supreme Court observed that the impugned Act being within the legislative competence of the legislature no question as to its being a piece of colourable legislation can arise. It is not a legislation resorted to by the State Legislature with a view to by-pass the provisions of List II of the 7th schedule to the Constitution, attempting to do something which it was otherwise not competent to do. The legislation is really a further measure for agrarian reform which it was well within its competence to enact. It is not an exproprietory legislation in the guise of one covered by entry 18 in the said list. 19. The legislation is really a further measure for agrarian reform which it was well within its competence to enact. It is not an exproprietory legislation in the guise of one covered by entry 18 in the said list. 19. In (3) L. Jagannath v. The Authorised Officer, Land Reforms, Madurai, AIR 1972 SC 425 the Supreme Court observed that entry 18 of List II is meant to confer the widest powers on the State Legislature with regard to rights in or over land and such rights are not to be measured by or limited to the rights as between landlords and tenants or the collection or rents. The words which follow the expression "rights in or over land" are merely by way of illustration. 20. Alienation is the act of transferring of ownership of one to another. By alienation a person's right in land is transferred to another. Restoration means bringing back to a thing its previous position. Through the procedure of restoration as laid down in the Act, a person gets back his "rights over the land" where certain conditions are fulfilled. This is not an Act relating to transfer and alienation of agricultural land but on the rights in or over the land. Accordingly, there is no restriction on the part of the legislature to include in the definition of land agricultural land as well as homestead, well, tank and water channel. The subject of legislation, in my opinion, wholly comes within item 18 of List II of 7th Schedule to the Constitution. Therefore, the State Legislature is competent to enact the West Bengal Restoration of Alienated Land Act. 21. The term "homestead" is intended to denote such land as used by a raiyat for residential purpose. A part of an agricultural land may be used by a raiyat for residential purpose although the character of the land would not justify its use as a homestead. Since amendment of section 182 in 1928, of the Bengal Tenancy Act (since repealed) the incidence of tenancy in "homestead" used to be governed by the Bengal Tenancy Act. By including "homestead, tank, well and water channel" in the definition of ‘land”, it cannot be said that the State Legislature has transgressed its legislative powers. 22. It is contended that words of diverse meaning and import have been used in the Act. By including "homestead, tank, well and water channel" in the definition of ‘land”, it cannot be said that the State Legislature has transgressed its legislative powers. 22. It is contended that words of diverse meaning and import have been used in the Act. The result has been that the essential legislative functions have been delegated to the Special Officer without express provision being made in the said Act. The Special Officer in applying the provisions of the Act would be in a boundless sea of uncertainty. The provisions of the Act which are uncertain and vague should be struck down. 23. It is stated that the meaning of the word "distress" in section 4 (1) (a) is so diverse and varied that the exercise of the powers by the Special Officer might authorise him to exclude other meanings and restrict to some meaning. There being no definition of the word "distress" in the statute, the power exercised in that way is really exercise of legislative function. 24. Similar other words occuring in the statute are the costs of cultivation in section 4 (1) (a) of the said Act. It may be an intensive cultivation of an extremely advanced type incurring huge costs or simply cultivation at a very low cost. The variable factor is so wide that the law makers have delegated essential legislative function to the Special Officer. 25. Similarly the undefined word "family" occuring in section 4 (1)(c) of the Act, Murray in Oxford Dictionary, Volume IV page 5 has given a meaning of the word "family" which is extremely wide and it has again another meaning which is extremely restrictive. Webster (Third New International Dictionary, Volume I, page 821) has also given two meanings, one of which is too wide and the other too narrow. 26. It is submitted that some of the expressions in the statute are unworkable. The words occuring in section 4(1) (a), viz. "maintenance of himself and his family". Obviously, neither for the family alone nor for himself if a transfer was effected, the said Act is not attracted. 27. In (4) S. B. Dayal v. State of Uttar Pradesh, AIR 1672 SC 1168, the appellant challenged the validity of section 3(D)(1) of the UP Sales Tax Act, 1948 on the ground of impermissible delegation of legislative power. Obviously, neither for the family alone nor for himself if a transfer was effected, the said Act is not attracted. 27. In (4) S. B. Dayal v. State of Uttar Pradesh, AIR 1672 SC 1168, the appellant challenged the validity of section 3(D)(1) of the UP Sales Tax Act, 1948 on the ground of impermissible delegation of legislative power. The Supreme Court observed : “It is true that the power to fix the rate of a tax is a legislative power, but if the legislature lays down the legislative policy and provides the necessary guidelines, that power can be delegated to the executive.* * * * In a modern society taxation is an instrument of planning. It can be used to achieve the economic and social goals of the State. For that reason the power to tax must be a flexible power. It must be capable of being modulated to meet the exigencies of the situation. In a Cabinet form of Government the executive is expected to reflect the views of the legislatures. In fact in most matters it gives the lead to the legislature. However, much one might deplore the New Despotism of the executive, the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th Century have become out of date. Present position as regards delegation of legislative power may not be ideal but in the absence of any better alternative there is no escape from it. The legislatures have neither the time nor the required detailed information nor even the mobility to deal in, in detail with innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible. 28. The principle is well established that essential legislative functions consist of the determination of the legislative policy and its formulation as a binding rule of conduct cannot be delegated by the legislature. The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Court should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act, including its Preamble. 29. In the instant case sufficient guidelines have been given in the preamble as well as in the other provisions of the Act itself. So, it cannot be said that the provisions of the Act suffer from the vice of excessive delegation of legislative powers. In interpreting the words in the Act, the intention expressed by the words used is to be ascertained. The words may have different meanings according to the circumstances with respect to which they are used. 30. In (5) Municipal Committee, Amritsar v. State of Punjab, AIR 1969 SC 1100 , the Supreme Court said that an Indian Act cannot be declared invalid on the ground of "Vagueness" which is alien to our constitutional system. 31. Reliance was placed by the Counsel for the petitioners upon the decision of the Supreme Court in (6) State of Madhya Pradesh v. Baldeo Prasad, AIR 1961 SC 293 where the Central Provinces and Barar Goonda's Act, 1946 was declared void for uncertainty. The condition for application of section 4-A is that, the person sought to be proceeded against must be a "goonda". But the definition of the word, 'goonda' in the Act, enacted no tests for deciding which person would fall within the definition. Accordingly, the Supreme Court held that the provisions were uncertain and vague. 32. Where the provisions of the Act are open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of the legislation, is to be preferred. The probability of misuse of law in its application cannot be presumed. Accordingly, the Supreme Court held that the provisions were uncertain and vague. 32. Where the provisions of the Act are open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of the legislation, is to be preferred. The probability of misuse of law in its application cannot be presumed. The Court instead of striking down the law itself, may set aside or quash the particular order of the Special Officer if it is found that the application of the law in the facts and circumstances of a particular case is wholly illegal or without jurisdiction. 33. It is true that the word "distress" has got divergent meanings. But where the purpose of the Act is to give relief to the poor raiyats, the word, distress, must have only one meaning, i. e. "economic distress". The cost of cultivation of an owner of less than two hectares of land, obviously, does not include the cost of either of a costly tractor or the cost of diesel or electric pumps for the purpose of irrigation. In West Bengal the cost of cultivation varies from one district to another. It depends upon the nature and character of the soil, the availability of the labour, facilities of irrigation, cost of menures and similar other factors. 34. So, it is impossible for the legislature to lay down the detailed items of cost. Flexible powers have been conferred by the Act upon the Special Officer to meet the exigencies of the situation. 35. The provisions of the Act shall not be applicable if the conditions enumerated in Section 4(1) are not fulfilled. When one of the conditions is that, if the transfer was made for the "maintaining himself and his family" in that case the cost of maintaining himself would not be sufficient. It must be of himself and his family both. It is the policy of legislature, and it is not for the Court to find out the reasons behind the legislative policy. 36. It is impossible to determine the limit of a 'family' with clear precision. The question as to who is a member of a "family", depends upon the facts and circumstances of each and every case. The intention of the Act is to give relief to the raiyats, so the widest amplitude of the meaning of the word 'family' should be given. The question as to who is a member of a "family", depends upon the facts and circumstances of each and every case. The intention of the Act is to give relief to the raiyats, so the widest amplitude of the meaning of the word 'family' should be given. A widowed sister wholly dependant upon her brother or even a son-in-law who since his marriage is living permanently as a 'son' with the family of his father-in-law, may be considered as a member of a family although normally he belongs to another family. I have only cited two instances. Besides, there are many cases which have to be judged by the Special Officer on taking into account the filets and circumstances of each case and after exercising his own judgment. 37. It is argued that unfettered and unguided powers have been conferred upon the Special Officer by section 4(4) of the Act to grant any number of instalments and to fix any period for payment by the transferor. The period may be extended to 10 years if the Special Officer so chooses. So, the provision which has conferred uncanalised powers upon an Special Officer should be struck down. 38. Section 4(4) of the Act provides that the Special Officer shall make an order in writing restoring the land transferred to the transferor and directing the transferor to pay, in such number of equal instalments not exceeding ten and on such dates as may be specified in the order. The first of such instalments shall be payable within three months from the date of the order. In my view, sufficient guidance has been provided in the section itself. Maximum number of instalments is ten and first instalment shall be payable within three months from the date of the order. The amount includes the consideration, compensation as well as 4% interest. So the fixation of the number of instalments and the period for the payments would depend upon the actual amount payable by the transferor. If the amount is large, obviously, the number of instalments would be spread over a large period in comparison to a smaller amount. So, it cannot be said that the power of granting instalments conferred by the statute upon the Special Officer is unguided and uncanalised. If the amount is large, obviously, the number of instalments would be spread over a large period in comparison to a smaller amount. So, it cannot be said that the power of granting instalments conferred by the statute upon the Special Officer is unguided and uncanalised. When an Act confers a discretion upon a Public Officer, it is expected that he should exercise his discretion fairly and properly and not arbitrarily or capriciously. 39. It is argued that sub-section (5) of Section 4 of the Act seeks to unsettle the settled principle of the Law of Evidence. The terms of the sale deed can be varied for the purpose of proving that the transfer was made for those conditions laid down in the Act. The said provisions are contrary to the Indian Evidence Act, a central Act made by the Parliament. The provisions of sub-section (5) of Section 4 are repugnant and contrary to the provisions of law made by Parliament and should be struck down. 40. The question of repugnancy arises in a case where the law made by the Parliament and the law made by the State Legislature occupy the same field. Sub-section (5) of Section 4 is not repugnant to section 61 of the Evidence Act which lays down that the contents of a document may be proved either by primary or by secondary evidence. Sub-section (5) of Section 4 of the Act provides that apart from primary evidence, secondary evidence may be adduced by the transferor varying, adding to or substracting from, the terms of the sale deed to prove the necessity or purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor and such evidence shall be admitted. Secondary evidence enumerated in that sub-section has no general operation to all sale deeds but it is restricted only to those transfers which fall within the purview of the said Act. Therefore, the said provisions are ancillary to the exercise of legislative power in respect of Entry 18 of List II and not repugnant to the central Act viz. the Evidence Act. 41. It is urged that the Special Officer could be of any Gazetted Officer–whether such person had the necessary qualification for evaluating title to immovable property or not. Therefore, the said provisions are ancillary to the exercise of legislative power in respect of Entry 18 of List II and not repugnant to the central Act viz. the Evidence Act. 41. It is urged that the Special Officer could be of any Gazetted Officer–whether such person had the necessary qualification for evaluating title to immovable property or not. Sub-section (4) of Section 4 of the Act has been amended in such a manner as would permit the Commissioner of the Division to clothe with the powers to be exercised under the Act, to such Gazetted Officers who might not be unfit to be trusted with the power of making such orders for restoration. 42. Wide powers given to the Special Officers may be considered to be an unreasonable restriction on one's fundamental rights to hold property. Infringement of Article 19 cannot be challenged as the Act has been placed in the 9th Schedule. Besides, an appeal to the Collector has been provided for. Constitutional remedy under Art. 226 of the Constitution is also not barred. Since the power of appointment to the post of Special Officer is given to the Commissioner of a Division, it may be assumed that such Gazetted Officers who would be really competent to discharge the functions of the Special Officers would be appointed. If the power is abused, then it is the abuse that would be struck down but the possibility of any abuse of power will not render the statute itself ultra vires. 43. It is submitted that the word "before" occuring in section 4(1) of the Act means in its grammatical sense any time before May, 1973. It gives power to the Special Officer to choose any person at any point of triune who was a transferor holding not more than two hectares of land, Such transferor may hold two hectares of land at any point of time before the commencement of the Act. If the Special Officer has to apply the provisions of the Act, he has to give a different meaning of the word "before" within its grammatical meaning. Such a function is an essential legislative function. 44. The word "before" should be read along with the entire provisions of section 4 (1). Only those transactions made after the year 1967 could be restored under the Act. Such a function is an essential legislative function. 44. The word "before" should be read along with the entire provisions of section 4 (1). Only those transactions made after the year 1967 could be restored under the Act. The word, "before", used in section 4 (1) refers to any time between 1st January, 1968 and 4th May, 1973. So there is no uncertainty or ambiguity in applying the provisions of the Act with respect to a transferor holding two hectares of land before the commencement of the Act. The material time for possession of two hectares of land is, before 5 years 3 months and 4 days of the commencement of the Act. 45. It is contended that only those transfers made after the year 1967 could be restored under the Act. There is no reason why that particular year has been fixed by the legislature. So, the fixation of the year 1967 is arbitrary and should be struck down. 46. Legislature understands and correctly appreciates the needs of its own people and the degree of harm which has prompted the enactment of a particular law. So, the selection of that particular year, namely, 1967, must be regarded to have been made under a policy of the legislature. It is not the province of the Court to scrutinise the legislative judgment on such matters. 47. As all the points raised by the petitioners fail, these Rules are discharged. There will be no order as to costs.