ORDER : Narinder Chauhan, Financial Commissioner This revision petition has been filed by the State against the orders of Divisional Commissioner Kangra, who in case No. 166/2012, vide his order dated 19.07.2012, set aside the orders of Collector Kangra, who had ordered vestment of land purchased by the Respondent vide his order dated 05.12.2011, in case No. 2/2008. The land was vested in favour of the State Government free from all encumbrances under the provision of Section-118 (3) (d). 2. The brief facts of the case are that the Tehsildar Jawali, vide his letter No. 26/RC dated 15.03.2008, informed the District Collector that a transaction pertaining to purchase of land by the Respondent, Ms. Sewa Devi Negi, prima facie appears to be a benami transaction. Land comprised in Khata No. 34, Khatauni No. 65-60, Khasra No. 266/185-186-107-188-189-191-192-268/195-290/205-207-211-213-214-215-216-298/217-294/209/ 2-196 Kita 18 : total area 6-30-16 hact. and Kita 62/5 share of 1-54-53 hect. of Khata No. 35/67, 68 and Khata No. 55/99 Khasra No. 292/206, area measuring 0-03-89 hect. Total area measuring 6-95-86 hect. of Mohal and Mauza Nawan Shahar, Tehsil Jawali as per Jamabandi 1999-2000, as per the report apparently appeared to be a violation of the H.P. Tenancy and Land Reforms Act, 1972, and the same is required to be investigated and ascertained. The Collector Kangra, issued show cause notices, the respondent submitted her reply, indicating that she has devoted her entire life to the propagation and preservation of the Kagayu Lineage of her esteemed religion and would like to develop a monastery etc. so that future generations can align with their religion and culture. That tine land has been purchased from funding transaction by the 'Karmai Garchen Trust of Goyutu Monastery', Sidhwari, District Kangra, who have provided her an interest free loan and donations were also given by various other benefactors. The trust gave her an interest free loan of Rs. 40.00 lacs, along with donation of Rs. 3.00 lacs. Such transactions were done through her saving account with State Bank of India, Branch Office Kotla, District Kangra. The status of the respondent in terms of being an agriculturist as defined in Section 2(2) of the H.P. Land Tenancy and Land Reforms Act, 1972, is not in dispute, as she belongs to Village Change, Tehsil Hangrang, District Kinnaur. 3. Ld. Such transactions were done through her saving account with State Bank of India, Branch Office Kotla, District Kangra. The status of the respondent in terms of being an agriculturist as defined in Section 2(2) of the H.P. Land Tenancy and Land Reforms Act, 1972, is not in dispute, as she belongs to Village Change, Tehsil Hangrang, District Kinnaur. 3. Ld. Collector District Kangra, ordered vestment of the said property, on the grounds that the real beneficiaries of the transaction was the "Karmae Garchen Trust of Goyuto Monastery, Sidhbarf". That there is no other plausible reason as to why an interest free loan would be given to the respondent as she neither has the financial resources to security such a transaction or even repay the interest free loan. Ld. Collector held that the Tact of respondent having no collateral to offer at the time of seeking loan from the other financial institutions, is further corroboration : of the fact of a benami transaction, and therefore, vested the land in favour of the Government, free from all encumbrances. 4. An appeal being filed under Section 118 (3) (d) of the H.P. Tenancy and Land Reforms Act, 1972, the Divisional Commissioner Kangra, based on an Apex Court decision Bhim Singh v. Kahan Singh, AIR 1980 SC 727 , set aside the orders of the Collector, with the directions that there is no prohibition to initiate fresh proceedings, in case fresh evidence conforming to the law as settled by the Hon'ble Supreme Court, comes to the knowledge of the Revenue authorities. 5. A revision being fried by the State Government, Sh. Anil Nag, Advocate for respondent has argued that the 'Karmae Garchen Trust', vide its various executive meetings sanctioned a loan of Rs. 40.00 lac and a donation of Rs. 3.00 lacs, and the respondent being an agriculturist within the meaning of Section 2 of the 1972, Act, the transaction is not ipso facto a benami transaction. Several receipts have been produced as proof of income of the respondent indicating her capacity to repay the interest free loan out of income derived from the disputed land and also from her inheritance bequeathed to her in her ancestral place (District Kinnaur) and therefore, prayed that the orders of the Divisional Commissioner, be upheld. It has been further argued that the provisions of Section 118, are in conflict with the Benami Transactions (Prohibition) Act, 1988. It has been further argued that the provisions of Section 118, are in conflict with the Benami Transactions (Prohibition) Act, 1988. Since the Benami Transaction Act, prohibits any person from claiming any property, which has been purchased by him in a Banami manner, and no suit or action can be brought by him to claim that he is the real owner of the property. It has further been argued that even if it is presumed for the sake of argument that the 'Karmai Garchen Trust', is the moving spirit behind the transaction, it cannot stake a claim as per the 1988 Act, on the land in the name of the respondent nor set up a defence of Benami transaction against the respondent. That the order of the Collector, clearly overlooks the legal position obtaining after passing of the Benami Transactions (Prohibition) Act, 1938, and that the provision of the Benami Transactions (Prohibition) Act, 1988, being a Central Act, would prevail over the H.P. Tenancy and Land Reforms Act, 1972, being a State Act. 6. Advocate, Sh. Anil Nag, further argued that vide amendment Act, 1997 (Act No. 9 of 1997), by adding the explanation to sub-section (1) of Section 118 of the Act, the expression transfer of land has been enlarged to include; (a) A benami transaction, in which land is transferred, to agriculturist for a consideration paid or provided by a non agriculturist, and (b) an : authorization, made by way of special or general power of attorney or by an agreement with the intention to put a non agriculturist in possession of land and allow him to deal with the land in the like manner as if he is the real owner of the land. Ld. Advocate has cited Binapani Paul v. Pratima Ghose and others, (2007) 6, Supreme Court Cases 100, wherein it had been argued that the source of money is mere y one of the real situation but not determinative in character. The orders of the Collector Kangra, only imputed motive without going into any further aspects. Ld. Advocate has cited Binapani Paul v. Pratima Ghose and others, (2007) 6, Supreme Court Cases 100, wherein it had been argued that the source of money is mere y one of the real situation but not determinative in character. The orders of the Collector Kangra, only imputed motive without going into any further aspects. That the test to determine Benami Transaction has been laid down by the Hon'ble Supreme Court as follows: - "Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came: (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with those property after the sale". In support Ld. Counsel has also cited Gapadibai v. State of M.P., (1980) 2 SCC 327 . 7. Dy. D.A. (Revenue) Shri Giri Raj Singh, has argued that a question whether the transaction is evident of a Senami transaction, is always difficult to prove. However, in the instant case the respondent has been changing her stand of first seeking loan from financial institutions, and on not furnishing the requisite collateral, she has obtained an alleged interest free loan from the 'Karmae Garchen Trust. That on proceedings being initiated, the respondent claims to have repaid Rs. 20.00 lac and that the account documents etc. of the trust hive simply been fabricated and attested by Charted Accountant. Local banking transactions were undertaken to justify the same, from not being classified as a Benami transaction, and it is a colourable means of avoiding detection. 8. The funding and the motive for the purchase of property may not be the sole criteria in determining the nature of the transaction. In the instant case, a correlative measure of proof would be the conduct of the parties concerned in dealing with the property after the sale. 8. The funding and the motive for the purchase of property may not be the sole criteria in determining the nature of the transaction. In the instant case, a correlative measure of proof would be the conduct of the parties concerned in dealing with the property after the sale. The source of money obviously being traceable and admitted to be from Karmai Garchen Trust, the important point would be to. ascertain whether the land is in reality for the benefit of the Trust or is simply mutated in the name of the respondent or some building/monastery etc. has been constructed. The essence of a 'Benami Transaction' is the intention of the party or parties concerned and although such intention is often shrouded in secrecy, it is difficult to prove the pattern of utilisation of the land. Nevertheless the determining factor would be the nature and possession of the property after the purchase. Ld. Divisional Commissioner, has vide his order stipulated that the State is free to initiate de-novo proceedings under Section 118, in case any fresh evidence arises. While upholding the orders of the Divisional Commissioner, the case is remanded back to the Collector, Kangra, in order to ascertain the following: - (i) Nature and possession of the property, after the purchase; (ii) Position of the parties and the relationship, if any, between the respondent and alleged benamidar. (iii) The Custody of the title deeds after the sale. (iv) Conduct of the parties concerned in dealing with the property after the sale. (v) whether any building/structure/monastery has come up on the land, and if yes, value thereof. 9. The orders of the Collector, Kangra, are based on y on the premise that the transaction was funded by the 'Karmae Trust'. Source of money can be one of die relevant considerations but not determinative in character. Other aspects as laid down by Hon'ble Apex Court in Binapani Paul v. Pratima Ghosh, (2007) 6 SCC 100 , have not been gone into. The transaction needs a comprehensive examination/investigation. There is no bar or preclusion of initiating denovo proceedings, as per orders of Ld. Divisional Commissioner, Kangra. The revision petition is partially accepted and remanded to Collector, Kangra as per above orders. 10. Announced in the open Court on 13.12.2013. The record of the Courts below be returned and the file of this Court be consigned to the record room after due completion.