Fuljahari Devi v. STATE OF WEST BENGAL — 1981 DIGILAW 192 (CAL)

JUDGMENT 1. IN this Rule which was obtained without any interim order on 5th August, 1977, the petitioners, a lady, claiming to have sold her properties as mentioned hereinafter, in distress has challenged an order dated 27th May 1977, made an appeal in the proceedings under the provisions of the West Bengal Restoration of alienated Land Act, 1973 (hereinafter referred to as the said Act). 2. IT was the case of the petitioner that she had to sell. 08 1 /2 decimals of lands comprising of pucca building (hereinafter referred to as the said properties), by registered Kobala, dated 27th March 1972, for a sum of Rs. 9,500/- and there was an oral agreement for re-conveyance. It was her case that she had considerable properties, but due to the devastating1 flood in the year 1971, her previous residential house was completely destroyed and in such circumstances, she tried her best to get loan from the Collector of Malda on the various application made on that behalf by her but such attempts produced no result. It has been stated that the petitioner's husband was an ordinary businessman and was also not in a position to maintain his family with his little income and on the upper floor of the residential house, which was so washed away, staff of the local Block Development Officer were staying as monthly tenants and the receipt of such rent also helped the petitioner and her husband to maintain the family. It was stated by the petitioner that after the residential house as mentioned, was washed away, there was in fact, no shelter for the family and in such circumstances and also because of the paucity of funds and bad financial position, the petitioner was finally compelled to sell the said properties to Respondent No. 4 viz Bamangola S. K. U. S. Limited (hereinafter referred to as the said Respondents ). It was the further case of the petitioner that she took loan from, the said respondent only to support her family and while she had sold away the said properties to the said Respondent, she had only 11 3/4 chataks of land of her own and the sale in the instant case was effected only for the purpose of repaying the loan of the said respondents and as such, such sale was a distressed one, under the provisions of the said Act. 3. 3. IT appeared that in the year 1976, the petitioner made an application before the Special Officer, under the said Act, being Respondent No. 3, under the provisions of section 4 of the said Act, which deals with the' procedure for effecting restoration of lands, alienated under certain circumstances. She claimed restoration of the said properties, as according to her, the sale was a distressed one. 4. THE said Respondents through their written objection to the said proceeding, contended inter alia that such proceedings was not maintainable, inasmuch as the lands in question, were not agricultural lands, but they were homestead, with a building existing thereon and furthermore as the said respondents had spent about 19000, for improvement of the existing building, standing on the disputed lands. It has also been claimed that the proceedings as filed or initiated was not maintainable as all members of the said Respondent were not made parties. The Respondent no. 3 as mentioned above, on consideration of the material aspects of the matter, according to the petitioner, allowed the application for restoration under section 4 (4) of the said Act subject to payment of the consideration money and the improvement cost, which was determined at Rs. 7,500/- and with other stipulations as mentioned in the concerned order. Against such determinations, the appeal in which the order as impeached, was made, was preferred, It has been stated that the Tribunal, without duly considering the relevant facts of materials on record and on other extraneous matters, set aside the order as made by the initial authorities and as such, acted illegally and with material irregularity. 5. THE affidavit -in -opposition in the instant case was filed only on behalf of the said Respondents even though the other respondents were duly served and the matter became ready as regards service on 21st April 1979. The said affidavit -in -opposition was dated 2nd January 1979 and was filed through Shri Bejoy Kumar roy, the Secretary of the said Respondents. This deponent has stated it to be a fact that the petitioner sold away a building to the said Respondent by the concerned Registered Deed and in lieu of the price as mentioned hereinbefore. But he has stated that such sale was not a sale in distress, acclaimed. This deponent has stated it to be a fact that the petitioner sold away a building to the said Respondent by the concerned Registered Deed and in lieu of the price as mentioned hereinbefore. But he has stated that such sale was not a sale in distress, acclaimed. He has also denied that there was any stipulation for re-conveyance of the properties and it was his specific case that on perusal of the said deed, it would appear that the transaction was an out and out sale and as such, the same was beyond the scope, purview and ambit of the provision of the said Act. The deponent has also admitted that the devastating flood in the year 1971, caused damages in the district and to other properties including those of the petitioner and after such devastation, the petitioner went to a tented house and the premises in question, was then under construction. In that view of the matter, the deponent has categorically denied and disputed that the petitioner, at the relevant times, was in distress or she was compelled to sell the premises in question, to meet her financial difficulties as alleged. It has also been stated by the deponent that the petitioner's husband was an affluent businessman at the relevant time. He has also admitted that at the relevant time, the staff of the local Block Development officer, were residing at the premises in question, as monthly tenants. 6. IT was the categorical case of the said deponent that the financial condition of the petitioner, was not such for which, she was compelled to sell the said properties; and he made such statements, as according to him, those exigencies would not appear from the sale deed in question. He has categorically denied the fact that the petitioner took loan from the said Responent to support, her family. It was the case of the deponent that it would appear from the relevant documents that the petitioner took loan of Rs. 2000/-on 17th October 1966, as a member of the Society, for agricultural purpose, by executing a Karbanama in respect of the,25. 3 acres, of lands and it would be evident from such other documents, that Sri Rameswar Prosad Bhagat, the husband of the petitioner, also took loan of rs. 2000/- on 24th June 1977, for agricultural purposes, by executing another Karbarnama. 3 acres, of lands and it would be evident from such other documents, that Sri Rameswar Prosad Bhagat, the husband of the petitioner, also took loan of rs. 2000/- on 24th June 1977, for agricultural purposes, by executing another Karbarnama. It was the case of the deponent that there was no provisions of granting loan to the members of the said Respondent save and except for agricultural purpose and as such, taking of loan for family expenses, as put forward now by the petitioner, was; a myth. The deponent has further denied that the petitioner had only 11. 34 decimals of lands at the time when she sold the disputed properties. In fact, he has stated that no material documents have either been annexed or produced to show that at the relevant time the petitioner had only 11. 34 decimals of land of her own. The deponent has stated that on the other hand, it would appear' from the mortgage Karbarnama, executed by the petitioner on 10 th june 1976, that against 25 acres of land she took a loan to the tune of Rs. 2000/-and as such, the deponent had reasons to believe that her quantum of land exceeded 11. 34 decimals. The deponent has further and categorically denied that the petitioner sold the said properties for the purpose of repaying the loan and has claimed such statement to be not bonafide. In such circumstances, the deponent has further claimed that the sale in question, was beyond the scope and ambit of the said Act. The deponent has further claimed that the application to be hot a bonafide one and Iras stated that the same would not come under section 4 of the said Act. 7. APART from relying on the statements as contained in the objection, the said Respondents have claimed through the said deponent, that the judgment and order passed by the initial authority, on the application filed by the petitioner, for restoration of the said properties, was wholly illegal and without jurisdiction. It has also been stated that the reasons for sale in the sale deed, application for restoration and the evidence as adduced by Rameswar prodhan Bhagat, the husband of the petitioner, are contrary to and. It has also been stated that the reasons for sale in the sale deed, application for restoration and the evidence as adduced by Rameswar prodhan Bhagat, the husband of the petitioner, are contrary to and. inconsistent with each other and as such, it would not be safe to rely on such discrepant statement it has also been stated that the judgment of the Special officer, was tainted with bias and mala-fide, as the said Special officer had an adverse attitude, towards the said Respondents from the very beginning. In fact, it has been stated that an application was filed on behalf of the said Respondents, before the Special officer concerned; on the ground inter alia, that the Block Development Officer, before whom the case was pending for disposal, was residing in the two rooms of the ground floor of the said premises and, after construction of the first floor, the said Block Development officer approached the said Respondents; for taking a monthly lease of the first floor rooms, but the said Respondents had not agreed to such proposal and as such, the said Respondents claimed that there was every possibility that they would not get fair justice from the selfsame Block Development Officer, who was refused the tenancy. In that view of the matter, the said Respondents required the proceeding to be transferred under the provisions of Rule 10 of the West Bengal ( Restoration of Alienated land Rules) But such petition, was rejected by the Special Officer concerned on 21st january 1977. This order of rejection, has been claimed by the said deponent, to be improper, motivated and not bonafide. 8. THE deponent has further stated that the financial position of the husband of the petitioner was sound ail along and such fact would be evident from the mortgage Karbarnama executed by the husband at the time of taking loan from the said respondents. It has also been claimed that the expenses for improvement of the said properties by the said Respondents, after purchase of the same have not at ail been considered by the Special officer on the basis of materials on record and as such, his findings were wholly perverse. It has been claimed by the said deponent that the appellate order had been passed duly and on or after considering the material thinks and aspects in connection with the application for restoration. It has been claimed by the said deponent that the appellate order had been passed duly and on or after considering the material thinks and aspects in connection with the application for restoration. He has claimed that the appellate order, to be justified and on proper materials: The deponent has further claimed that the present proceeding, to be not maintainable either in fact or in law. The answer to be above affidavit-in -opposition, was given by the petitioner through her husband, Rameswar Prasad bhagat, by the affidavit -in -reply, dated. 28th april 1981. The petition was affirmed by one Kamal Karmakar, an agent of the petitioner and now the husband, affirming the affidavit- in- reply, has stated that there was an oral contract for re-conveyance of the. properties. He has stated that it is true that on perusal of the sale deed, nothing on this aspect could be inferred, as the sale-deed in question, was written on the directions of the said Respondent. He has claimed the transaction in question to be well within the scope of the provisions of the said Act. The deponent has stated that on the date of registration of the sale deed, the said Respondents had realised Rs. 1832. 50 paise from the petitioner, which she took as a loan from the said Respondents as such, it has been claimed that it was abundantly clear that the petitioner was forced to sell her land for the re-payment of loan as incurred by her and such fact would also established conclusively, the fact of distress sale. He has again stated that the facts as mentioned above, would not appear from the deed itself, as the same was obtained under the dictates and instructions of the purchaser viz the said Respondents. The deponent has stated that the petitioner took loan, as she was in need of money and " as such, it cannot be said that the same was only for agricultural purposes. He has referred further that the petitioner had to take the concerned loan, being in distress. save as (aforesaid, the other material facts as contained in the petition of motion have teen reiterated and the deponent has also denied the material allegations. 9. THUS, on the pleadings, it is apparent that, after the admitted flood, the petitioner had sold the said properties for Rs. 9,500/ -. save as (aforesaid, the other material facts as contained in the petition of motion have teen reiterated and the deponent has also denied the material allegations. 9. THUS, on the pleadings, it is apparent that, after the admitted flood, the petitioner had sold the said properties for Rs. 9,500/ -. The question would be, whether such sale was a distress sale, in terms of section 4 (a) of the said Act and whether the petitioner, in the facts of the case, would be entitled to take the plea under section 4 (b) and if the officer concerned, was justified in making an order under section 4 (4 ). The above provisions, so also the provisions of section 4 (5), which would be of relevant consideration on the pleading of the parties, are quoted herein below :-4. (1) Where before the commencement of this act a person being the transferor Holding not more than 2 hectares of land in the aggregate transferred the whole or any part of his land by sale to 'any' person being the transferee, then, if- (a) such transfer was made after the expiry of the year 1967 being in distress or in need of money for the maintenance of himself and his family or for meeting the cost of his cultivation, or (b) such transfer was made after the expiry of the year 1967 with an agreement, written or oral, for re conveyance of the land transferred, to the transferor, the transferor may, within five years from the date of such transferor within two years from the date of commencement of this Act, whichever, period expires later, make an application in the prescribed manner to the Special Officer having jurisdiction in the area in which the land transferred is situate for restoration of such land to him. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) If after considering such evidence and hearing the parties the special Officer is satisfied that such transfer was made by the transferor within the time, and for the purpose, referred to in clause (a) of sub-section (1), or, as the case may be, within the time, and under the conditions, referred to in clause (b) of that sub-section, 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 installments not exceeding ten and by such dates as may be specified in the order, the amount of the consideration which was actually paid by the transferee to the transferor for such, transfer together with interest on such amount at the rate of four percent per annum from the date of his receipt of such consideration and the amount of any compensation for improvement effected to such land allowed by the Special Officer and determined by him in the manner prescribed less the amount determined in the manner prescribed of the net income from such-land of the person in possession of such land as a result of such transfer provided that the first of the installment provided in the order made under the sub-section shall be payable within three months of the date of the order. Explanation - subject to other provisions of this section,- (i) the word "transferor" referred to. in this Act means the first transferor between the expiry of the year 1967 and the date of commencement of this Act, and includes the heirs of such first transferor; (ii) the word "transferee" shall mean where the land, is in the possession of any person other than the first transferee by virtue "of a subsequent transfer such subsequent transferee; and (iii) the expression "consideration which was actually paid by the transferee to the transferee" shall mean where there was more than, one transfer, the amount which was paid by the first, transferee to the first transferor. (5) Notwithstanding anything contained in the Indian Evidence Act, 1872, any evidence adduced by a transferor varying, adding to, or subtracting from, the terms of the sale deed to prove the necessity 6r purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor; shall be admitted. (6 ). . . . . . . . . . :. . . . . . . . . . . . . . . . duced, through the husband of the petitioner, also claimed that no case was made but for which any action ' could be brought or maintained under section 4 of the said Act. It was also contended by Mr. Dhole, on a reference to the said recorded evidence that since the sale was for repayment of loan of the husband, as taken, and not for the purposes of repayment of the loan incurred for the marriage of the daughter, so the proceedings as initiated, was improper, irregular, void and ' inoperative. He claimed that the husband of the petitioner, at all material times was in affluent condition and still he is so and as such, the story as sought to be set up now, for re conveyance of the said property, was anything but real. The deeds as produced were also looked into. They were really and in fact silent about the grounds as mentioned in the application under section 4 (1) of the said act, which, in fact inspired Mr. Dhole to submit about the non maintainability of the said application. The particulars of such submissions have been mentioned hereinbefore. In answer to such submissions of Mr. Dhole, Mr. Das gupta, on a reference to section 4 (5)maintained that the subsequent, pleadings or such pleading, which were not available in the deeds in question, would foe available to the petitioner and in fact, she was appropriately, authorised to lead such or necessary evidence, as was done or tendered in this case, Ha said, subsection (5) of section 4 makes it. clear and authorises the transferor, to lead any evidence, to vary, add to or subtract from, the terms of the sale deed and establish the necessity or purpose for which the transfer was made or the amount of consideration actually paid to the transferor by the transferee and such evidence, when duly and legally tendered or adduced, (7 ). . . . . . . . . . . . . . . . . . . . . . . (8 ). . . . . . . . . . . . . . . . . . . It is also an admitted fact that petitioner and her husband; whose particulars are given hereinbefore were members of the said Respondent and they also obtained loans from the said Respondents. It would also be' available from the pleadings that such loan have been repaid on 27th March 1972 and the petitioner, along with the members or her family, at the relevant time, were residing in a rented accommodation. 10. THE application under section 4 (1) as produced by Mr. Dhole, was also referred to and relied on by Mr. Dasgupta, appearing in support of the rule. In that application, the petitioner has mentioned the reason for the sale, which she considered to be the cause of distress viz that since she was to give her daughter in marriage, she was compelled to dispose of the said property, as her financial position was very bad. The petitioner has further mentioned the date of the concerned sale as 27th March 1972 and also pleaded that there was an oral agreement to the effect that on repayment of the amount, for which the said property was sold, the land in question will be handed over to her. Mr. Dhole claimed that such statements as contained in the concerned application, would not be available in the deeds in question and they were, made with the ulterior motive, intention and object of bringing the case of the petitioner within the purview of the said Act. In fact, Mr. Dhole, on a reference to the evidence as ad should be admitted, notwithstanding anything contained in the Indian Evidence Act, 1872. So, even if the case as sought to be made out was not available from the concerned deeds, Mr. In fact, Mr. Dhole, on a reference to the evidence as ad should be admitted, notwithstanding anything contained in the Indian Evidence Act, 1872. So, even if the case as sought to be made out was not available from the concerned deeds, Mr. Das gupta was right and justified in his submissions that the petitioner had the necessary liberty and opportunities to make out alternative case, as was sought to be done in this case. Even on such submissions, Mr. Dhole contended that the case as was sought to be made out at the second thought, was not established or proved beyond hilt or reasonable doubt. Mr. Dhole was right and justified in his contentions that even if such alternative case, as was sought to be made out in the proceedings, was allowed, the authorities concerned would not be justified in relying on the same, unless the case was legally proved or proved through legal evidence he of course claimed that the subsequent case was not duly proved through necessary legal evidence. So, we shall have to see and find out first, how far and if at all, distress in this case, was legally proved or if such case, as claimed, was just a story or a myth. The Special Officer, white making his order dated 2nd February 1977, in Case No. RAL 101-72, framed the following issues for determination :-1. Has the petitioner sold the land in distress and has she got less than two (2) hectares of land at the time of sale ? 2. Is the land non-agricultural homestead land ? 3. Are all the members of O. P. Society necessary parties in the case ? 4. Has the O. P. spent Rs. 19,060,00 for improvement ? 5. To what relief, if any, the petitioner is entitled? and has observed on evidence, that the petitioner had much less than two hectares of land at the time of sale and she sold the lands in distress and there was oral contract for re-conveyance. It has further been observed that the petitioner was entitled to have the necessary redress under the said Act and the said property was not homestead land, but they could come within the purview of the said Act. It has further been observed that the petitioner was entitled to have the necessary redress under the said Act and the said property was not homestead land, but they could come within the purview of the said Act. The officer concerned, on the pleadings and evidence, has also observed that since the said Respondent was a Registered Society, so all the members of the same was not necessary parties and the case as made out, was a duly framed one. He has found that even in-spite of opportunities, the said Respondents have not lead any evidence and they had constructed two rooms on the first floor, apart from effecting some petty repairs. The money spent by the said Respondents, was assessed by the officer concerned as Rs. 7,500/- and it was also observed that they would be entitled to the said sum as improvement cost over and above the consideration money of Rs. 9,500/- In view of the above, restoration of the said property, in favour of the petitioner was directed, on payment of a sum of Rs. 17,000/-subject to a deduction of Rs. 8,720/-which the said Respondent had received on letting out a portion of the ground floor of the premises in question. So it was finally directed that the petitioner should pay for restoration, a sum of Rs. 8,280/- along with interest on the consideration money of Rs. 9,500/- at the rate of 4 per cent from 27th. March 1972 to 1st February 1977 and further to pay the entire sum of Rs. 10,112/-in six equal annual installments. 11. AS mentioned above, Mr. Dhole claimed the above determinations, to have been made, without due opportunities to the said Respondents, In fact, he, on a reference to the order sheet in annexure -XI to the affidavit -in-opposition, wanted to supplement such submissions. That order sheet shows that on 3rd January 1977, on, the basis of the application of the petitioner, which was looked into, notices were directed to be issued on the said Respondents fixing 20th January 1977, as the date. Such notice was issued and on the next date, the petitioner appeared but not the said respondents and as such, 27th January 1977, was again fixed and necessary notice was directed to be served on them. Such notice was issued and on the next date, the petitioner appeared but not the said respondents and as such, 27th January 1977, was again fixed and necessary notice was directed to be served on them. It also appeared from the said order sheet that on 27th January 1977, both the parties appeared and filed their respective haziras and the said Respondents, filed a petition for transfer, of the case. The reasons for seeking such transfer, have been indicated hereinbefore. Since such statements in support of the claim for transfer were found to be baseless and irrelevant, the said prayer was not entertained and the hearing of the case was closed on 21st January 1977. It was directed that the judgment; would be pronounced on 2nd February 1977. On 2nd February 1977, another prayer for time and for transfer of the case was made and on that date, the said Respondents were granted, on compassionate grounds, further one week's time to vacate the premises. 12. MR. Dhole, claimed that in the facts of the case and the circumstances as mentioned hereinbefore, the prayer for transfer of the case, should have been allowed and alternatively, even if such refusal of the said prayer for transfer was due, proper and legal, the authority concerned, should have given opportunities to the said Respondents, to lead and tender their evidence and. also to effectively cross examine the witness on behalf of the petitioner and in not granting such opportunities, there were admitted violation of principles of natural justice. Mr. Das Gupta contended that the provisions of section 4 of the said Act, firstly require that the transfer in question must have been made, in distress, after 1967 and such distress should be for the maintenance of the transferor and his or her family or for putting the cost of cultivation, secondly, such transfer was made after the period as mentioned above, with an agreement, written or oral', for reconveyance of the lands transferred, to the transferor and thirdly the transferor could bring his or her case within the permissible ceiling and when all those conditions are satisfied, then, the order of restoration can be made or would be possible. Mr. Das Gupta categorically claimed and submitted that since the contingencies or the requirements as mentioned above, were duly satisfied, the order by the initial authority, was appropriately made. Mr. Das Gupta categorically claimed and submitted that since the contingencies or the requirements as mentioned above, were duly satisfied, the order by the initial authority, was appropriately made. He further claimed and contended that the arguments on violation of principles of natural justice as advanced and recorded hereinbefore, were not available to the said Respondents at this stage and in this proceedings, as they had participated in the proceeding, without any objection or raising any question. It was also claimed that the claim of transfer as made, was duly considered to be baseless, Mr. Dhole, also and further contended on the basic facts as mentioned hereinbefore, that when there was some hesitation in the mind of the said respondents and on the point, that they may not get justice, so even if such hesitation was baseless and of no effect, the authority concerned, should have directed the transfer, instead of hearing the matter at once and on rejection of such prayers. It was claimed that such continuation of proceedings, even if legal, the same was neither proper nor normal and in fact, as mentioned above, by continuing with the proceedings in the manner as indicated, the said Respondents did not get due opportunities to establish their case or to disprove from the case of the petitioner. The memorandum of appeal from the initial order, as preferred by the said Respondents, has been disclosed as Annexure-X2 to their affidavit -in- opposition and the said record established that specific grounds were taken in the appeal on the point, after pleading the relevant facts. Mr. Das Gupta claimed that in any view of the matter amongst others arid when in the appeal, the said Respondents have received the due benefit viz the, appeal has been allowed, the arguments as advanced by Mr. Dhole, were of no consequences and effect. The allegations, which were the basis of the prayer for transfer, were that the. Block development Officer concerned approached the said Respondents for securing a monthly lease of a portion of the premises in question for residential purposes, after the second story was constructed and the said Respondents did not grant the lease for the portion asked for, but granted the lease of two rooms on the ground floor from 1975. Block development Officer concerned approached the said Respondents for securing a monthly lease of a portion of the premises in question for residential purposes, after the second story was constructed and the said Respondents did not grant the lease for the portion asked for, but granted the lease of two rooms on the ground floor from 1975. It was claimed, that since the request of the block Development officer concerned, was not acceded to, so he was not favourably disposed towards the said Respondents and as such, they had to pray for an adjournment, for moving the superior authority, for transfer of the case to any other Special Officer. Mr. Dhole claimed that since such prayer was refused, that would be enough to establish a bias mind of the officer concerned. Such allegations were of course claimed by Mr. Das Gupta, to be not bonafide and according to him, they were put forward, without any basis, evidence or reason. 13. ON appeal, the learned Tribunal set aside the determinations dated 2nd February 1977, on the findings amongst others, that the statements of the petitioner in her petition to the Special officer and the evidence as adduced by or on her behalf, gave rise to a suspect ion that the story of distress was invented for obtaining an advantage under the said Act and taking into consideration the conditions of her husband the petitioner was sufficiently well off and was not entitled to the benefits and protections of or under the said Act. It was also observed by the learned Tribunal that the petitioner had no case to be considered under the said Act and it has also been observed that the Special Officer concerned should have have taken the evidence of the petitioner Fuljhari Debi herself and furthermore, has not made any comment on the attitude of the Special Officer concerned, in hearing the matter. The learned Tribunal on the admitted finding that the petitioner Fuljhari Debi was. well to do person of the village, and on the further finding that the story of daughter's marriage, to be unreal rejected her application for restoration. 14. IT was claimed by Mr. The learned Tribunal on the admitted finding that the petitioner Fuljhari Debi was. well to do person of the village, and on the further finding that the story of daughter's marriage, to be unreal rejected her application for restoration. 14. IT was claimed by Mr. Das gupta that the, submissions of Mr., dhole on the question of transfer and the challenges as thrown now, were nothing but arguments of despair and without any reasonable basis or ground, as firstly, no such grounds' were duly and appropriately advanced before the special officer concerned and secondly, the said Respondents appeared and participated in the concerned proceedings without any objection whatsoever apart from the fact, that such grounds of bias, for refusal to grant the tenancy, were of no avail, as much prior to. the date as mentioned above, the Block development officer concerned was a tenant under the said Respondents. Mr. Das Gupta, on the facts as above claimed, bias or prejudice, if any, in fact and effect was expected to be against the petitioner and not against the said Respondents, as admittedly the officer concerned was a tenant under the said Respondents. It is true that in terms of rule 10 of the West Bengal Restoration of Alienated Land Rules, 1973, which deal with transfer of cases, the Collector of a district or the additional District Magistrate may, for reasons to be recorded in writing, transfer any case from one Special Officer to another, for disposal and the said Respondents have stated that such being the position, they applied for the necessary adjournment for enabling them to move the higher and appropriate authorities and the said prayer was rejected or refused in the manner as indicated above. Mr. Dhole also contended that even though such point was taken in appeal before the learned Tribunal, the same has not been dealt with or determined appropriately, and on merits, findings have been arrived at or made against the petitioner and in favour of the said Respondents, but even then, the fact remains that for the rejection of the prayers for transfer in the manner as indicated above and the corresponding continuation of the proceedings, the said respondents have been deprived of the opportunities to lead evidence or to duly cross examine the petitioner or her witnesses. It is an admitted fact that the petitioner did not depose herself and she wanted to establish her case through her husband and other witness and evidence. In such facts, Mr. Dhole contended that the relevant evidence was not duly led, rather the same was withheld, as the petitioner herself did not lead or tender the evidence, which was in her possession. As such, Mr. Dhole, am reference to the determinations in the case of Mohammad Shafique vs. Union of India. 67 C. W. N. 279, claimed that adverse inference should be drawn against the petitioner. In that case, it has been observed that non appearance of a party (personally knowing the whole of the circumstances) as a witness discredits the truth of his case. Such has been observed to be the statutory principle resting on illustration (g) to section 114 of the Evidence Act. II has also been observed that when a trusted Karmachari of a firm, knowing all about a certain payment deposed on oath that he made the payment, it will be wrong-to draw, an adverse presumption for non-examination - of the party. The leading of evidence, through the husband on behalf of the wife, in a case like this, would be possible and permissible and as such, I find that the determinations as mentioned above, would not help the said Respondents. Under the Scheme of the said Act, which is to give relief to the poor man, who sold their land after 1967 and would be entitled to get back such land, if such sale was due to dire distress, I am of the view, that the need for the sale of the property for or in distress, in appropriate cases, may also be established by the evidence of the person or persons' other than the transferor. So, in this case, we shall have to consider, how far, the distress, which was the ground put forward and which is a must, for the restoration, was proved. The evidence on the point of the claim of the distress sale viz for meeting- the expenses of the marriage expenses of the daughter, have not been duly or appropriately been found or established, even though the same has been pleaded, as one of the main reasons for the sale. The evidence on the point of the claim of the distress sale viz for meeting- the expenses of the marriage expenses of the daughter, have not been duly or appropriately been found or established, even though the same has been pleaded, as one of the main reasons for the sale. Sub-section (5) of section A of the said act, certainly gave the petitioner liberty to lead any evidence, varying, adding to or subtracting 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 said Respondents and such evidence, if and when lead, were to be admitted, notwithstanding anything contained in the Indian Evidence Act 1872. But in this case, there has been no such or any evidence on the point by the petitioner. In fact, the evidence as tendered or adduced were inconsistent with the pleadings. Mr. Dhole also claimed that as admittedly the said properties of the petitioner were exclusively homesteads, the said Act would have no application. These submissions of Mr. Dhole, in view of the definition of "land" in section 2 (2) of the said Act, which means agricultural land and includes hornet stead, tank and water channel, would be without any substance. In fact, that was also the submissions of Mr. Das gupta and the findings as arrived at by the learned Tribunals below require no interference on that respect. The said respondents, being a registered body and a society incorporated under the relevant statute, there was also no justification in the submissions of Mr. Dhole, that the proceedings as initiated, was bad, as ail the members of the said Respondents were not made parties. In fact, such were the findings of the learned Tribunals below and the submissions of Mr. Das Gupta. In view of the above and the claim as preferred by the petitioner against the said Respondents or the cause of action involved, I think the determinations in the case of 12 J. C. Bose Road Tenant's Association -vs collector of Howrah, A. I. R. 1977 Cal 437, to which reference was made by Mr. Dhole, were not applicable in this case rather they are distinguishable. Mr. Dhole, were not applicable in this case rather they are distinguishable. Mr. Dhole also claimed, on a reference to the determinations in the case of Commissioner of income-Tax, Andhra Pradesh -Vs- Taj Mahal Hotel AIR 1972 SC 168 , that the term "land" in this case, should have been considered in its popular sense. But, on the face of such determinations and in view of the fact that "land" has been defined in the said Act, such determinations, in my view, have also no application in this case. 15. AS mentioned above, both the authorities below were right, justified and authorised in their findings in respect of the applicability of the said Act and to their findings that, liberal interpretation to the term "land", as used in the said Act, should be adopted in view of the scheme and object of the same. But even then, the fact remains that the sale as a distressed one, has to be established appropriately and by legal evidence. Unfortunately, in this case, the fact that the sale was out of or because of dire distress or for the particulars of such distress as pleaded, have not been duly established, even though such distress or the necessary justification for the sale was pleaded. The pleading and the evidence as led were discrepant and as such, it would not be safe to make any determination on such discrepant statements or available materials or record The learned Tribunal, in appeal, rightly pointed out the same. So, in that aspect, the findings by the learned Tribunal require no interference. But the findings arrived at by the learned Tribunal to the effect that the sale in this ease, could not be a distress sale, considering the financial position and status of the husband of the petitioner and their son, in my view require reconsideration, on proper materials and evidence. The evidence on both the sides is not complete. In fact, it cannot be doubted or disputed that because of the way and manner in which the case was dealt with and disposed of by the Special officer concerned, the said Respondents really had no opportunity to lead their evidence or to duly cross examine the witness produced on behalf of the petitioner. In fact, it cannot be doubted or disputed that because of the way and manner in which the case was dealt with and disposed of by the Special officer concerned, the said Respondents really had no opportunity to lead their evidence or to duly cross examine the witness produced on behalf of the petitioner. The special officer or the Initial authority in this case, in all fairness and in the facts of this case, should have given the said Respondents, the necessary opportunities, to move the higher and appropriate authorities concerned, more particularly when, the basis of the allegations, could not at all be said to be baseless. So, I feel that following the well known norms and principles that justice must not only be done, but the same must be felt to have been done", some opportunity, should have been given to the said Respondents to establish the bonafides of their claim for transfer of the case, the more so then, specific and definite allegations were made against the self same officer, who was due to hear the proceedings and furthermore when Rule 10 as mentioned above, do make provisions for such cause. The claim of the said respondents, that they would not perhaps get or receive due justice from the officer concerned, as his request for the tenancy of the upper floor of the Dermises in question was refused, may not be without any substance. I fail to understand why, even on the fact of such allegations or statements, the Special officer concerned, had heard the proceedings. 16. IN view of the above, I not only set aside the determinations of the learned tribunal, but also set aside the determinations by the Special officer concerned, with these directions that the case should now go back to the initial authority, for due and necessary disposal in accordance with law, by any Special officer, other than the one, who made the earlier determinations. I also have it on record that such determinations of the proceeding now, should be made with due and every opportunities to the parties to lead such evidence as they would intend to lead to substantiate their respective cases. The Rule is thus made absolute as above. There will be no order for costs. Rule made absolute. Case remanded. No costs.