Bibhuti Bhusan Bankura v. STATE OF WEST BENGAL — 1994 DIGILAW 30 (CAL)

Judgment ARUN KUMAR DUTTA, J. 1. THE instant Appeal is directed against the judgment and order dated 8th July, 1990 passed by a learned Single Judge of this Court on a Writ Application, being C.O. No. 8422 (W) of 1991, arising out of the judgment and order dated 5.7.91 passed by the Revenue Officer/Block Land and Land Reforms Officer, Narayangarh, District- Midnapore, in the relevant proceeding Case No. of 1991 and 14 of 1991 under the relevant previsions of West Bengal Land Reforms Act (hereinafter referred to as L.R. Act). 2. THE writ petitioner No.1, Bhibuti Bhusan Bankurs, was allowed to retain 25 acres of agricultural lands, and 2.35 acres of non-agricultural lands and .03 acre of homestead land in a Big Raiyat proceeding under the relevant provisions of the West Bengal Estates Acquisition Act in the year 1961. His father Brojo Gopal had gifted away 3.79 acres of land in favour of the writ petitioners Nos. 2 and 3, the sons of the petitioner No. 1, under a registered Deed of Gift dated 26.8.61. Bhibuti Bhusan, the petitioner No. 1, as well, had transferred 12.43 acres of land in their favour under a Nirupan Patra dated 23.3.64. THE names of the petitioner Nos.2 and 3 had accordingly been duly mutated in respect thereof under the Mutation Case No. 145(1) of 1973-74, and they had thereafter paid rents to the State Government accordingly. The family of Bhibuti Bhusan, as on 15.2.1971, consisted of himself, his wife, and five unmarried daughters. His two sons, the petitioners Nos. 1 and 2, who were then adult and married, having land by virtue of the Deed of Gift and the Deed of Nirupan Patra executed in their favour by their father and grandfather, as stated above, had been excluded from his (petitioner No, 1's) family. 3. THE Revenue officer concerned had suo-motu initiated a proceeding against the petitioner No. 1 under Section 14T(3), read with Sections 14M and 145 of the L.R. Act, in the year 1979 for enquiring into his holding, being 7A Case No. 296 of 1979. 4. 3. THE Revenue officer concerned had suo-motu initiated a proceeding against the petitioner No. 1 under Section 14T(3), read with Sections 14M and 145 of the L.R. Act, in the year 1979 for enquiring into his holding, being 7A Case No. 296 of 1979. 4. THE said case had been disposed by him (Revenue Officer) on 27.12.80 holding, inter-alia, that his (Ptr, No.1's) family consisted of more than five members and he was accordingly entitled to retain 17.30 acres of agricultural land, whereas he was holding 14.96 acres of agricultural and non-agricultural lands together on 15.2.1971, and had no surplus land liable to vest to the State under the Act. THE said case was, accordingly, dropped. THE relevant records of rights, had as well been attested by the Revenue Officer accordingly on 27.8.90. But the Revenue Officer had even thereafter initiated a suo-motu proceeding against the petitioner No. 1, being case No. 14/91, for his failure to submit return under Section 14T(10) of the Act in Form No. 7AA. THE notice thereof was served upon him on 3.7.91 at 3P.M. asking him to furnish a statement showing schedule of total land held by him since 7.8.69, and the particulars of lands transferred by him thereafter with a choice of retention according to law. On the same very day (3.7.91), another notice was served upon him in connection with another case, being No. 3/91, under Section 14T(5), read with Sections 14T(8) and 14T(9), as also Section 57 of the Act, on the allegation that he (petitioner No. 1) had transferred 7.70 acres of land to his sons, petitioners Nos. 2 and 3. in Mouza-Bahurupa, in the year 1964, and his father Brojo Gopal has as well transferred 3.80 acres of land to his grandsons (the petitioners Nos. 2 and 3) in the same Mouza-Bahurupa and Charutibhara in the year 1961 and there was prima-facie reason to believe that the said transfers were nothing but "Benami" in their names (petitioners Nos. 2 and 3), made to evade the ceiling limit under the Act. THE petitioner No. 1 was directed to be present during the field enquiry on 4.7.1991 for ascertaining whether the transferees were in possession of the lands in question on and from the dates of transfers. THE case was fixed for hearing on the following date, i.e. 5.7.1991. 2 and 3), made to evade the ceiling limit under the Act. THE petitioner No. 1 was directed to be present during the field enquiry on 4.7.1991 for ascertaining whether the transferees were in possession of the lands in question on and from the dates of transfers. THE case was fixed for hearing on the following date, i.e. 5.7.1991. Both the aforesaid two cases had been taken up for hearing by the Revenue Officer concerned on 5.7.1991. The petitioner No.1 had filed a petition praying for fifteen days' time for submitting statement of lands and other relevant documents, to be rejected by the Officer concerned. He had finally disposed of both the proceedings on the basis of the report of Field Enquiry treating the aforesaid two transfers as benami/paper transactions in favour of the petitioners Nos. 2 and 3 without any physical transfer, and had treated all the lands to be belonging into the petitioner No.1, Bhibuti Bhusan, who was allowed to retain 17.30 acres of land and the remaining lands were directed to be vested with the State. 5. THE Appellants had moved the Writ Petition on 8th July, 1991 before a Single Bench of this Court, disposed of on the same very day by directing the petitioners to prefer an Appeal to the Appellate Authority with liberty to urge all the points taken in the Writ Petition. 6. IT was contended by the Petitioners-Appellants that the relevant transfers in favour of the petitioners Nos.2 and 3 had taken place before 7.8.69 and their names had duly been recorded in the relevant Records of Rights. The lands transferred to them are in their actual possession. The Revenue Officer was as well very much aware of the aforesaid transfers in their favour. IT was wrongly recorded during the Field Enquiry that the Petitioner No.1 Bhibuti Bhusan had all along been in cultivation of the said transferred lands, and that his aforesaid two sons had never been in possession thereof. The Revenue Officer had further wrongly calculated the son's land and that of the father with that of the Petitioner No.1, Bibhuti Bhusan, for deciding the ceiling limit. The Revenue Officer had further wrongly calculated the son's land and that of the father with that of the Petitioner No.1, Bibhuti Bhusan, for deciding the ceiling limit. Hence the appeal on the grounds made out in the Memo of Appeal and the following five points urged during the bearing before us in support thereof: I) Section 14T(5) of the W. B. L. R. Act is ultra vires as being repugnant to Section 4 of the Benami Transaction Prohibition Act, II) Enquiry into Benami u/s 14T(5) is prohibited by Section 4 of the Benami Transaction Prohibition Act which is a subsequent Act. III) Second proceeding to determine surplus land is barred, IV) Review of the previous determination is barred by limitation, and V) Such retrospective effect is arbitrary and incompetent. Let us now deal with the aforesaid five points one by one for disposal of the instant Appeal. To the first point first. It had been waxed eloquent on behalf of the Appellants that the provisions of Section 14T(5) of the L.R. Act are repugnant to the provisions of Section 4 of the Benami transactions (Prohibition) Act, 1988 (hereinafter shortened into B. T. P. Act). To consider the question of repugnancy we have to refer to the provisions of Article 246 of the Constitution of India which reads as follows :- Art. 246-subject-matter of laws made by parliament and by the Legislatures of States-(l) Notwithstanding anything in clauses (2) and (3), parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule (in this Constitution referred to as the ("Union List"). (2) Notwithstanding anything in clause (3), parliament, and, subject to clause (1) the Legislature off any State also, have power to make laws with respect to any of the matters enumerated in List HI in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State list." 7. LET us now turn to the provisions of Section 14T(5) of the L.R. Act and Section 4 of the B. T. P. Act which read as follows :- "Section 14T(5) -"the Revenue Officer on his own motion or upon any information, may, after giving the persons interested an opportunity of being heard, enquire and decide any question of benami in relation to any land and any question of title incidental thereto or any interest therein or any matter of transaction made, on being satisfied that such enquiry and decision are necessary for the purpose of preparation, correction or revision of record-of-rights and all matters incidental or consequential thereto or detection and vesting of surplus land over the ceiling area." "Section 4(1)- "Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property." (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property." 8. THE L. R. Act, making a comprehensive enactment for regulating the relationship of tenants inter se and between a tenant (raiyat) on the one hand and the State on the other, involving various kinds of land reforms, as contained therein, has presumably been enacted under Entry No. 18 of the List II (State List) of the seventh schedule of the Constitution of India relating to :- "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." The B. T. P. Act obviously appears to have been enacted by the Parliament under Entry No.6 of the List III (Concurrent- List) relating to :- "Transfer of property other than agricultural land: registration of Deeds and Documents." 9. THE L.R. Act could not be deemed to have been enacted under any of the Entries of List 111. And. none of the two Acts, L.R. Act and B. T. P. Act, could be deemed to have been enacted under Entry No. 45 of the List III, as feebly sought to be urged on behalf of the Appellants. 10. THE B. T. P. Act, as indicated above, has clearly been enacted by the Parliament under Entry No.6 of the Concurrent List relating to transfer of property other than agricultural land (i.e. non-agricultural land). THE said Act clearly is not applicable to agricultural land. Question of benami transaction of agricultural land, as in the relevant proceedings before us, under the relevant provisions of the L.R. Act, could not thus be covered by the B. T. P. Act. There could clearly, therefore, be no question of repugnancy in the relevant matter before us. After the acquisition of estates under the provisions of the West Bengal Estates Acquisition Act, the State Government had felt the necessity of making a comprehensive enactment for regulating the relationship of tenants inter se and between a tenant (raiyat) on the one hand and the State on the other whereupon the L.R. Act was brought into being. But the L.R. Act, prior to the Amendment Act of 1981 did not touch the non-agricultural land. A non-agricultural tenant or under-tenant could thus enjoy the feudal privilege of having a tenant under him. But the L.R. Act, prior to the Amendment Act of 1981 did not touch the non-agricultural land. A non-agricultural tenant or under-tenant could thus enjoy the feudal privilege of having a tenant under him. Upon a general demand to streamline the enactment to encompass non-agricultural lands as well, the West Bengal Land Reforms (Amendment) Act, 1981 had been enacted to cover all types of lands thereunder. The L.R. Act, as it now stands after the aforesaid amendment Act of 1981, thus covers all types of lands, including Agricultural land, which does not appear to be covered by the B. T. P. Act. That being so, if the subject matter of legislation comes within Entry No. 6 of the Concurrent List then Article 254(2) of the Constitution would prevail so far as the transaction relates to non-agricultural land and the authority of the Revenue Officer to find that a transaction so far as it relates to non-agricultural land as benami is intra vires. But if the subject matter of legislation is covered by Entry No.18 of the State List then the B. T. P. Act cannot touch agricultural land. Article 254(1) of the Constitution would touch agricultural land. Article 254(1) of the Constitution would then prevail and the power of the Revenue Officer to hold a transaction as benami so far as it relates to agricultural lands would be valid. 11. IT would seem worth bearing in mind that the object of the provisions of Section 14T(5) of the L.R. Act is to defeat a transaction made with the object of defeating the ceiling provisions of Chapter 1IB of the Act and/or detection and vesting of surplus land over the ceiling area. The object of the B.T.P. Act as the very name signifies, is to prohibit Benami transaction. Benami transactions, mors often than not, are entered into for illegal/unlawful purposes, e.g., to avoid land ceiling under various land reforms laws, to defeat and defraud the claims of rightful creditors, to avoid tax liability under various Tax/Revenue Laws etc. The purpose and object of the relevant provisions of the aforesaid two relevant acts are clearly to discourage and prohibit Benami transaction, though in different spheres and directions. The purpose and object of the relevant provisions of the aforesaid two relevant acts are clearly to discourage and prohibit Benami transaction, though in different spheres and directions. The relevant provisions of the aforesaid two relevant Acts could not thus at all be held to be inconsistent or irreconcilable, but are clearly supplementary and cumulative in their operation which can stand together and function with full vigour side by side in their own parallel channels. There could clearly, therefore, be no question of repugnancy in the relevant provisions of the aforesaid two relevant statutes. 12. THAT the question of repugnancy can a rise only with reference to a legislation falling under the Concurrent List is now well-settled. The Supreme Court in A.S. Krishna vs. State of Madras A.I.R. 1957 S.C. 297, has observed that the following two conditions must be fulfilled in such a case :- (1) The provisions of the provincial law and these of the Central Legislation must both be in respect of a matter which is enumerated in the Concurrent List; (2) They must be repugnant to each other. It is only when both these requirements are satisfied that the provincial law will, to the extent of the repugnancy, become void. The same view has been expressed by the Supreme Court in the decision in the Kerala State Electricity Board vs. Indian Aluminium Company Ltd. and Ors. A.I.R. 1976 S.C. 1031, wherein it has been reiterated that the question of repugnancy can arise only with reference to a legislation falling under the Concurrent List. It would also be pertinent to recall in this context that the Supreme Court in Tika Ramji and Ors. etc. vs. The State of Utter Pradesh and Ors. A.I.R. 1976 S.C. 1031, wherein it has been reiterated that the question of repugnancy can arise only with reference to a legislation falling under the Concurrent List. It would also be pertinent to recall in this context that the Supreme Court in Tika Ramji and Ors. etc. vs. The State of Utter Pradesh and Ors. (1956) S.C.R. 393 had held that "no question of repugnancy under Article 254 of the Constitution could arise where Parliamentary Legislation and State Legislation occupied different fields and dealt with separate and distinct matters even though of a cognate and allied character, and that where, as in the present case, there was no inconsistency in the actual terms of the acts enacted by Parliament and the State Legislature, the test of repugnancy would be whether Parliament and the State Legislature in legislating under an entry in the Concurrent List, exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be exhaustive so as to cover the entire field." The Court had further held in M. Karunanidhi vs. Union of India, A.I.R. 1979 S.C. 898 that repugnancy between a law made by a State and by the Parliament may result where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable. The Supreme Court had further held in the decision in Raghubir vs. State of Haryana, A.I.R. 1981 S.C. 2037, that "one of the circumstances under which repugnancy between the law made by the State and the law made by the parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable." 13. KEEPING the aforesaid principles of law laid down by the Supreme Court in mind we may recall that the L.R. Act has been passed by the State Legislature under Entry No.18 of List II (State List) and the B. T. P. Act appears to have been passed by the parliament under Entry No.6 of List III (Concurrent List). That being so, there could be no question of repugnancy between the relevant provisions of the aforesaid two enactments, enacted under the said two separate Lists. 14. That being so, there could be no question of repugnancy between the relevant provisions of the aforesaid two enactments, enacted under the said two separate Lists. 14. EVEN if the aforesaid two Acts could be deemed to have been enacted under Entries in the Concurrent List, there could still be no question of repugnancy for the reasons we shall presently discuss. The Supreme Court in State of Rajasthan vs. G. Chawla and Anr., A.I.R. 1959 S.C. 544, has held that the legislatures in our country possess plenary powers of legislation. This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the List conferring respectively powers on them. These Entries, it had been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumeration simplex of broad categories. Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival List, notwithstanding. This was laid down by Gwyer C.J. in Subramanyam Chettiar vs. Muthuswamy Goundan, 1940 FCR 188 at p. 201: (AIR 1941 FC 47 at p.51) in the following words : "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may. be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial committee whereby the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that." This dictum was expressly approved and applied by the Judicial Committee in Prafulla Kumar vs. Bank of Commerce Ltd., Khulna, 74 Indian Appeal 23: AIR 1947 PC 60, and the same view has been expressed by this Court on more than one occasion. It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. 15. THE Supreme Court has also echoed in the same voice in the Kerala State Electricity Board vs. Indian Aluminium Company and Others. A.I.R. 1976 SC 1031, that for deciding under which entry a particular legislation falls the theory of 'pith and substance' has been evolved by the courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject-matter Of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. 16. NICHOLAS in his Australian Constitution, 2nd Edition, at page 303 has referred to three tests of inconsistency or repugnancy :- 1. There may be a inconsistency in the actual terms of the competing statutes; 2. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth court, is intended to be a complete exhaustive code; and 3. Even in the absence of intention a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter. The Supreme Court in Tika Ramji vs. State of Uttar Pradesh 1956 S.C.R. 393, had accepted the said three rules, amongst others, as useful guides guides to test the question of repugnancy. Even in the absence of intention a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter. The Supreme Court in Tika Ramji vs. State of Uttar Pradesh 1956 S.C.R. 393, had accepted the said three rules, amongst others, as useful guides guides to test the question of repugnancy. The Court in Deep Chand and Other's vs. The State of Uttar Pradesh and Others. A.I.R. 1959 S.C. 648, has thus held that the repugnancy between two statutes may be ascertained on the basis of the following three principles :- "(1) Whether there is direct conflict between two provisions : (2) Whether Parliament intended to lay down an exhaustive code in respect of the Subject Matter replacing the Act of the State Legislature : and (2) Whether the law made by Parliament and the law made by the State Legislature occupy the same field." 17. BEARING the principles of flaw laid down by the Supreme Court in the aforesaid decisions in mind, we would note, for the reasons already discussed above, that there is no direct conflict between the provisions of Section 14T(5) of the L. R. Act and Section 4 of the B. T. P Act and the laws made by the State Legislature and the parliament do neither occupy the same field. There could be no question of repugnancy as such. 18. THE provisions relating to inconsistency between laws made by parliament and laws made by the Legislatures of State are contained in Article 254 of the Constitution of India which reads as follows :- "Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (I) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provisions of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision of an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State. The Supreme Court in Zaverbhai Amaidas vs. State of Bombay, A.I.R. 1954 S.C. 752, has held that the important thing to consider with reference to Art. 254(2) is whether the legislation is "in respect of the same matter." If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Art. 254(2) will have no application. 19. THE Supreme Court has further held in Municipal Corporation of Delhi vs. Shiv Shankar, A.I.R. 1971 S.C. 815 that. in spite of some apparent conflict in the relevant Acts of the Parliament and the State the two provisions may have conterminous fields of operation. THE provisions of the two Acts may be supplementary and cumulative in their operation and they can stand together. THE Parliament might not intend by enacting the Central Act to impliedly repeal the provisions of the State Act. Both the Statutes can function with full vigour side by side in their own parallel channels. We have already indicated above that the relevant provisions of the relevant two Statutes can do so far the; reasons stated. 20. UPON the discussions above, we are clearly of the view, in sharp disagreement with the decision of a Single Bench of this Court in Paschim Banga Rajya Bhumijibi Sangha and Ors. vs. State of West Bengal being Matter No. 1367 of 1987, referred to by the Appellants during the hearing, that there could be no question of repugnancy between the amended provisions of Section 14T(5) of the L.R. Act (State Act) and Section 4 of the B. T. P. Act (Central Act), as strongly urged on behalf of the Appellants. The first point urged fails as such. To the second point next. The first point urged fails as such. To the second point next. It had been urged on behalf of the Appellants that enquiry into Benami transaction under Section 14T(5) of the L. R. Act is prohibited under Section 4 of the B. T. P. Act. This submission also seems to us to he of little force for the reasons we shall presently state. The Supreme Court in Bhim Singh vs. Kan Singh A.I.R. 1980 SC 727, has held that two kinds of benami transactions are generally recognized in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, transaction is called Benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money and he is the real owner. The second case which is loosely termed as a Benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882. 21. IN line with the aforesaid decision of the Supreme Court, a Single Judge of our High Court in Sambhunath Pal vs. The State of West Bengal and Others, 87 CWN 695, has held that the word "Benami" is used to denote two classes of transactions which differ from each other in their legal character and incidence. IN one sense, it signifies a transaction which is real. Such a sale is genuine but the Purchaser is a Benamdar of another person the word Benami is also occasionally used to refer to a sham transaction, as for example, when one purports to execute a deed of transfer without intending that his title should cease or pass to the ostensible transferee. IN the former class of transaction the enquiry is made to find out who paid the consideration of the transfer. IN the former class of transaction the enquiry is made to find out who paid the consideration of the transfer. IN the latter class of cases when the question is whether the transfer is genuine or sham, the point for decision would be not who paid the consideration but whether any consideration was paid. The B. T. P. Act prohibits, penalise and regulates proceedings only in respect of Benami transaction of the first kind, mentioned above, where consideration is paid by one party and transfer is made to another, as it would clearly appear from the definition) of "Benami transaction" in Section 2(a) of the Act which reads as follows :- Section 2(a) - "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person." The enquiry relating to alleged benami transactions in the relevant proceedings before us, however, seems to relate to the second kind of Benami transaction where a raiyat who is the owner of the property executes a transfer deed in favour of another without the intention of transferring the title to the property thereunder. Enquiry into such-like sham transaction is not covered by the B. T. P. Act. 22. EVEN most charitably assuming for the sake of argument that the transactions enquired into in the relevant proceedings are covered by the B. T. P. Act, such enquiry does not appear to be prohibited by the said (B. T. P.) Act for the reasons hereinbelow state : Section 4 of the B. T. P. Act prohibits the right to recover property held benami which reads as follows :- "Prohibition of the right to recover property held benami - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property." 23. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property." 23. PLAINLY read, the aforesaid provision prohibits "Suit, claim and action" to enforce the right of a person alleging to be the real owner against the benamdar. The provision, as it is prohibits suit, claim and action which would further the enforcement of the right of an alleged real owner against the benamdar. An enquiry under the provisions of Section 14T(5) of the L. R. Act is clearly neither a suit nor a claim nor an action by or behalf of the person claiming to be real owner of the property for enforcement of his right against a benamdar. It is merely an enquiry to determine whether there is any land in excess of the ceiling or not, as prescribed by the Statute. If there is no land in excess of the ceiling the raiyat would not be affected by such enquiry even if the land is found to be held benami by some other person. Such enquiry could not thus be barred by Section 4 of the B. T. P. Act. 24. SECTION 14T(5) of the L. R. Act relates to enquiry regarding benami transfer for illegal purposes for evading and defeating the ceiling provisions of Chapter IIB of the Act. SECTION 6 of the B. T. P. Act expressly provides that nothing in the Act shall affect the provisions of any law relating to transfer for illegal purposes. That being so, enquiry into benami transaction under the aforesaid relevant provisions of the L. R. Act could not thus be prohibited by SECTION 4 of the B. T. P. Act. SECTION 6 of the B. T. P. Act expressly provides that nothing in the Act shall affect the provisions of any law relating to transfer for illegal purposes. That being so, enquiry into benami transaction under the aforesaid relevant provisions of the L. R. Act could not thus be prohibited by SECTION 4 of the B. T. P. Act. Section 4 of the B. T. P. Act bars "suit, claim or action" to enforce any right in respect of any property held benami against the person in which name the property is held or against any other person by or on behalf of the person claiming to be the real owner of such property: clearly prohibiting such proceedings by a real owner (or on his behalf) against an ostensible owner (or any other person), i.e. the parties thereto, for enforcement of right in respect thereof. The said provision, as it is, does not prohibit such proceedings by a third party: more particularly, where a benami transaction is entered into by the parties thereto for illegal purposes, e.g., to avoid land ceiling under Various Land Reforms Laws, to defeat and defraud rightful claims of creditors, to avoid tax liability under Various Tax/Revenue Laws etc., which would have the effect of protecting such transactions, which could never have been intended by the legislature, as made clear by section 6. 25. THAT apart, an enquiry by a Revenue Officer under the provisions of Section 14T(5) of the L.R. Act is clearly neither a suit nor a claim. Such an enquiry could neither be deemed to be an "action" within the meaning of Section 4 of the B. T. P. Act, as sadly sought to be urged on behalf of the Appellants. 26. IN Halsbury's Laws of England the definition of the word "action" (at page 2, para 1, Vol. 1) reads as follows :- "An 'action' according to the legal meaning of the term, is a proceeding by which one party seeks in a court of justice to enforce some right against, or to restrain the commission of some wrong by another party. More concisely it may he said to be 'the legal demand of a right' or the mode of pursuing a right to Judgment. More concisely it may he said to be 'the legal demand of a right' or the mode of pursuing a right to Judgment. It implies the existence of parties of an alleged right, of an alleged infringement thereof (either actual of threatened), and of a Court having power to enforce such a right". "IN its wider meaning the term includes both Civil and Criminal proceeding: it was frequently so used by old writers, and the House of Lords has recognised that it is a generic term: inclusive, in its proper legal sense, of suits by the Crown and comprehending, in legal phraseology every suit, whether by subject, by an information by the Attorney-General on behalf of the Crown. It is, however, generally used in a more restricted or popular sense as denoted by writ or plaint." The definition of the word "action" being, what it is, as indicated above, an enquiry by a Revenue Officer under Section 14T95) of the L.R. Act could scarcely be deemed to be an "action". Section 4 of the B. T. P. Act, on plain reading, does not clearly seem to prohibit an enquiry into benami transaction under Section 14T(5) of the L.R. Act as such. The second point urged on behalf of the Appellants as well clearly fails. It had thirdly, been urged on behalf of the Appellants that the second proceeding to determine surplus land is barred under the law. But to that we would at once note with a minute of dissent that there does not appear to be any second proceeding in the relevant matter before us. In the earlier Big Raiyat proceeding initiated against the Raiyats concerned in 1979 for determining surplus land for vesting over the ceiling area with the State under the L. R. Act, it was incompetent for the Revenue Officer concerned to decide the question of benami transaction with the law, as it then was. A learned Single Judge of our High Court in Sambhunath Pal vs. The State of West Bengal and Others 87 C.W.N. 695 had held that Chapter IIB of the West Bengal Land Reforms Act, 1955 does not contain any express provision conferring authority or jurisdiction upon the Revenue Officer to determine whether a raiyat is the real owner of any agricultural land which stands in the name of his adult son or any other person. There was no express provision in the West Bengal Land Reforms Act for an enquiry to determine whether any transfer made prior to 7th of August 1969 was bonafide, real or fictitious, sham or Benami. It may be noted that the State government under Section 5(A) of the West Bengal Estates Acquisition Act, 1953 was empowered to hold enquiry for finding whether transfer or any land made by an intermediary between 5th of May, 1953 and the date of vesting under the said Act was bonafide or not. If after enquiry thereunder a transfer was found not bonafide, such transfer stood cancelled without affecting any right which the transferor or the transferee might otherwise have against each other. No provision similar to Section 5(A) of the West Bengal Estates Acquisition Act, 1953 had been inserted in Chapter- IIB of the West Bengal Land Reforms Act, 1955. Therefore, it Was necessary to decide whether in determining the extent of the land which may vest in the State under section 14s of the West Bengal Reforms Act, 1955 the Revenue Officer had been given by implication power to decide question of Benami ownership and also about the bonafide of any transfer of agricultural land made on 7th August, 1969 or on any prior date. The learned Judge had thus held that the Revenue Officer had not been impliedly empowered to decide the question of benami. But the Revenue Officer has been empowered to decide the question of benami under the amended provisions of Section 14T(5) of the said Act, which had been firstly inserted by the West Bengal Land Reforms (Second Amendment) Act, 1981 which reads as follows :- "Section 14T(5) - The Revenue Officer, on his own motion or upon any information, may, after giving the persons interested an opportunity of being heard, enquire and decide any question of benami in relation to any land and any question of title incidental thereto or any interest therein or any matter Or transaction made with the object of defeating the ceiling provisions of this Chapter, in so far as such enquiry or decision shall be necessary to determine the extent of land which in to vest in the State under section 14 Section" 27. THE aforesaid provision has further been substituted by the West Bengal Land Reforms (Third Amendment) Act, 1986 as follows :- Section 14T(5) - THE Revenue Officer, on his own motion or upon any information, may, after giving the persons interested an opportunity of being heard, enquire and decide any question of benami in relation to any land and any question of title incidental thereto or any interest therein or any matter of transaction made, on being satisfied that such enquiry and decision are necessary for the purpose of preparation, correction or revision of record-of-rights and all matters incidental or consequential thereto or detection and vesting of surplus land over the ceiling area." 28. THAT being so, the subsequent relevant proceedings before the Revenue Officer concerned for deciding the question of benami for the purpose of detection and vesting of surplus land and preparation, correction or revision of the records- of- rights under the aforesaid amended provisions of Section 14T(5) of the L. R. Act could hardly be deemed to be a second proceeding or review of the previous determination, as contended by the Appellants, the Revenue Officer concerned having no authority to decide the question of benami in 1979. The subsequent relevant proceeding or review of the previous determination, as contended by the Appellants, the Revenue Officer concerned having no authority to decide the question of benami in 1979. The subsequent relevant proceedings by the Revenue Officer concerned for determining the question of benami could, therefore, hardly be barred as such. The third point urged on behalf of the Appellants has also little leg to stand upon, and must clearly be overruled. It had, fourthly, been urged on behalf of the Appellants that the review of the previous determination by the Revenue Officer is barred by limitation. But that submission as well could neither be sustained. As already held above, the relevant subsequent proceedings for deciding the question of benami is not a review of the earlier proceedings; but is a fresh proceeding which the Revenue Officer has subsequently been empowered to decide under the amended provisions of Section 14T(5) of the L.R. Act. But that submission as well could neither be sustained. As already held above, the relevant subsequent proceedings for deciding the question of benami is not a review of the earlier proceedings; but is a fresh proceeding which the Revenue Officer has subsequently been empowered to decide under the amended provisions of Section 14T(5) of the L.R. Act. Even if the subsequent relevant proceedings be deemed to be a review of the earlier determination, the same not having been initiated by any suit, appeal or application are not covered by Section 3 of the Limitation Act which prohibits entertainment of suits, appeals, or applications after the expiry of the period of limitation prescribed therefor. 29. IT had, lastly, been urged on behalf of the Appellants that the retrospective operation of the amended provisions of Section 14T(5) of the L. R. Act is arbitrary and illegal, infringing upon vested right of a raiyat. IT would be pertinent to point out in this context that the Supreme Court in the Government of Andhra Pradesh and Another vs. Hindustan Machine Tools Ltd. A.I.R. 1975 SC 2037, has held that the power of the Legislature to pass a law postulates the power to pass it prospectively as well as retrospectively, the one no less than the other. Within the scope of its legislative competence and subject to other constitutional limitations the power of the Legislature to enact laws is plenary. In United Provinces vs. Atiqa Begum, 1940 FCR 110 = (AIR 1941 FC 16) Gwyer C.J. while repelling the argument that Indian Legislatures had no power to alter the existing laws retrospectively observed that within the limits of their powers the Indian Legislatures were as Supreme and sovereign as the British Parliament itself and that those powers were not subject to the "strange and unusual prohibition against retrospective legislation." The power to validate a law retrospectively is, subject to the limitations aforesaid, an ancillary power to legislate on the particular subject. 30. THE L.R. Act having been enacted under Entry No.18 of List II is, therefore, quite competent in spite of being retrospective. the burden of proving that the legislation is incompetent and arbitrary, as alleged, lies heavily upon the Petitioners-Appellants. 30. THE L.R. Act having been enacted under Entry No.18 of List II is, therefore, quite competent in spite of being retrospective. the burden of proving that the legislation is incompetent and arbitrary, as alleged, lies heavily upon the Petitioners-Appellants. THEre is not the merest and faintest whisper in the relevant petition or in the Memo of Appeal that any of the provisions of amended sub-sections (5) to (8) of Section 14T of the L.R. Act is arbitrary. Per contra, a plain reading of the aforesaid provisions, such as they are, would at once make clear that the Legislature was keen to defeat the unhappy devices for evading land ceiling from 5th May, 1953 onwards in terms of a policy decision of the Legislature. It has been held by the Supreme Court in State of Tamil Nadu etc. vs. L. Abu Kavur Bai, A.I.R. 1984 SC 326, that an enquiry into the policy of the Legislature or the considerations governing the same cannot be made by the courts unless the policy is so absurd as to violate the provisions of the Constitution. It is a common knowledge that since the Land Reform legislation was being thought of in the State various ingenious methods for evading land ceiling, including benami transfers, had been adopted by the Raiyats on large scale so as to retain as much land as they could be evading proposed land ceiling. There was, therefore, nothing absurd in giving the relevant provisions of the L. R. Act retrospective effect, in the aforesaid background. ft had neither been urged on behalf of the Appellants: nor, do we see any absurdity in the policy of the Legislature in enacting the L. R. Act for effecting all-round land reforms in the State and giving retrospective effect to the relevant provisions of the Statute. It had further been urged on behalf of the Appellants that the vested right of a Raiyat and his right to property cannot be taken away in by a Revenue Officer in exercise of power under the amended Section 14T(5) of the L.R. Act with retrospective effect. But to that we would at once note in line with the decision of the Supreme Court in Mithilesh Kumari and Anr. vs. Prem Behari Kher, A.I.R. 1989 S.C. 1247 that when an Act is declaratory' in nature the presumption against retrospectivity is not applicable. Acts of this kind only declare. But to that we would at once note in line with the decision of the Supreme Court in Mithilesh Kumari and Anr. vs. Prem Behari Kher, A.I.R. 1989 S.C. 1247 that when an Act is declaratory' in nature the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in which name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense there was aright to recover or resist in the real owner against the benamidar. Ubi jus ibi remidium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is a disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of exeation of the right. A right is a legally protected interest. The real owner's right was hitherto protected and the Act has resulted in removal of that protection. It would also be pertinent in this context to refer to Section 1A of the L.R. Act containing declaration as to the policy of the State. The declaration in Section 1A to the effect that this enactment is aimed at giving effect to the Directive Principles of State policy specified in clause (b) and (c) of Article 39 of the Constitution has a far reaching consequence. In the process this statute enjoys the protective umbrella of Article 31C, Constitution of India. No provision of this statute can be assailed as infringing Articles 14 and 19, Constitution of India. That being so, the Appellants' contention that the retrospective operation of the provisions of Section 14T(5) of the L.R. Act is arbitrary and incompetent, amounting to infringement of vested right of a Raiyat seems to be of little moment. There could neither be any question of depriving the right to property of a Raiyat under Article 300A of the Constitution of India because the deprivation of such right, if any, cannot be said to be without the authority of law. There could neither be any question of depriving the right to property of a Raiyat under Article 300A of the Constitution of India because the deprivation of such right, if any, cannot be said to be without the authority of law. It would also seem significant and observable to note that the Supreme Court in Bishamber vs. State of U.P., A.I.R. 1982 SC 33 had held that right not to be deprived of property save by authority of law is no longer a fundamental right, though still a constitutional night. The fifth point urged on behalf of the Appellants as well palea into insignificance. 31. THE learned Advocate for the Appellants had referred us to the following decisions, amongst others, in support of his contentions : (1) Sashi Bhusan Singha vs. Shankar Mahato, 54 C.W.N. 936: (2) Raj Ballav Das vs. Haripada Das, A.I.R. 1985 Cal. 2: (3) Kristo Chandra Pal vs Anilabala Dasi, A.I.R. 1958 Patna 487: (4) Amalgamated Electricity Company vs. Ajmer Municipality, A.I.R. 1967 S.C. 227: (5) R. M. D. Chamarbaugwalla and Anr. vs. Union of India. A.I.R. 1957 S.C. 628, which do not seem to be of any avail to them, having little bearing on the points involved herein, as indicated above. 32. THE learned Advocate for the Appellants had as well referred to the decisions in Mithilesh Kumari vs. Prem Behari Khare, A.I.R. 1989 SC 1247, Deep Chand vs. State of U.P., A.I.R. 1959 SC 648, and Kerala State Electricity Board vs. Indian Aluminium Company, A.I.R. 1976 SC 1031 which, instead of supporting their contention, support the Respondents' contention on the points in question, as already discussed above. THE belated submission on behalf of the Appellants that the State Government having mutated the names of the Writ Petitioners Appellants Nos. 2 and 3 in terms of the Deed of Gift and the Deed of Nirupan Patra, executed by their grandfather and father respectively, and having accepted rents from them, would be estopped from claiming the lands in question as vested on the ground that the said transactions are sham benami transactions could neither be sustained as there could be no estoppel against Statute. THE other belated submission (on behalf of the Appellants) that the power given to the Revenue Officer (or the prescribed authority or any other officer or authority) who makes the order of vesting to enter upon and take possession of vested land in terms of provisions of Section 14SS of the L. R. Act renders Appeal against such order of vesting nugatory as well seems to us to be misconceived because the power to enter upon and take possession of vested land in terms of the aforesaid provisions are obviously subject to Appeal by an aggrieved person under Section 54 in terms of sub-section (7) of Section 14T of the (L. R.) Act. It is open to an aggrieved party to seek for stay on preferring Appeal against any such order of vesting under the aforesaid provisions. Appeals against any such vesting orders could not clearly, therefore, be rendered nugatory by the provisions of Section 14SS of the Act, as sadly sought to be contended on behalf of the Appellants. THE contention of the Writ Petitioners-Appellants that the Revenue Officer concerned had also erred in calculating the son's land and that of the father's with those of the Petitioner No. 1, Bibhuti Bhusan, for deciding the ceiling limit could not clearly be agitated in a Writ Petition as the Writ Court cannot be called upon to go into the questions of fact. Upon the premises above, there seems little substance in the instant Appeal, which is liable to fail, as it should. And, in view of the facts and circumstances of the instant matter the only remedy available to the Writ Petitioners Appellants, if any, is by way of appeal, and not by exercising this Court in its writ jurisdiction, as they did. It is not for the Writ Court to correct errors of fact and/or errors of law on the part' of a statutory authority. The Court below, in our considered view, was, therefore, perfectly justified in directing the Writ Petitioners to prefer appeal to the Appellate Authority against the relevant orders passed by the Revenue Officer concerned in the relevant proceedings. 33. IN view of the discussions above, the Appeal fails. The impugned order passed by the court below stands confirmed. The Court below, in our considered view, was, therefore, perfectly justified in directing the Writ Petitioners to prefer appeal to the Appellate Authority against the relevant orders passed by the Revenue Officer concerned in the relevant proceedings. 33. IN view of the discussions above, the Appeal fails. The impugned order passed by the court below stands confirmed. The Writ Petitioner-Appellants shall be at liberty to prefer Appeal to the Appellate Authority with liberty to urge all the points taken in the Writ Petition in terms of the orders of the court below. If any such Appeal is preferred by them within a period of one month from this date, the Appellate Authority shall entertain the same without raising any question of limitation and shall dispose of the same with reasoned order within a reasonable period by giving the parties concerned all reasonable opportunity of being heard. 34. IN the facts and circumstances of the matter and in view of the questions of law of the first impression raised herein, we direct the parties to bear their respective cost of the hearing. Appeal dismissed.