JUDGMENT

Shamsuddin Ahmed, J.

1. In this writ application under Article 226 of the Constitution of India the validity of Section 4E of the West Bengal Land Reforms Act, 1955 (inserted by the West Bengal Land ReformsAmended Act, 1981) is under challenge.

2. Writ petitioners' case in short is that Smt. Binapani Pal and Smt. Srilata Pal were the owners of; 2.53 acres of land in different plots described in paragraph 2 of the writ petition in Mouza Salap, J.L. No. 52, P.S. Domjur, Dist. Howrah. They purchased these lands in the year 1961-62 and since then using the land for non-agriculture purpose. They have divided the land into small plots for residential and commercial purpose. The area concerned has developed into a residential and commercial area. At times the lands in question were used as kitchen garden and vegetables were sometimes grown for domestic use. Out of these lands petitioners purchased several portions by registered deeds on different dates as narrated in paragraph 4 of the writ petition. These purchases were made in the year 1980. The petitioners entered into an agreement for sale of the case lands and agreement for sale was executed. When they had been to the Sub-Registers Office at Domjur they were informed that the Sale Deeds can be registered only after permission from the Collector has been obtained in terms of Section 4E of the West Bengal Land Reforms Act as communicated to the Registering Authority under a Government Memo, dated September 17, 1986 issued by the respondent No. 1. A copy of the Memo is Annexure 'B' to the writ petition. It has been contended that Section 4E encompasses a particular category of land namely, lands mainly used for agriculture or as an orchard. According to the writ petitioners the expression 'mainly used for agriculture' is too vague and it gives to the Collector power to grant permission to transfer in wide terms and such power is unguided, unrestricted, unfettered leading to its use arbitrarily. According to the writ petitioners, the lands which is used as kitchen garden cannot be said to be lands mainly used for agriculture purpose or for orchard. Accordingly, such type of land is not covered by Section 4E and for getting a Transfer Deed registered no permission is necessary. Writ petitioners claimed that none of them possess land in excess of ceiling limit described by the West Bengal Land Reforms Act or the Urban Land (Ceiling & Regulation) Act, 1976. According to them Section 4E imposed an unreasonable restriction and is violative of Article 300A of the Constitution of India. It is contended that there is no nexus between the restrictions imposed by Section 4E and the object to be achieved by the provisions of the West Bengal Land Reforms Act, mainly on these grounds the validity of Section 4E is being challenged.

3. Affidavit-in-Opposition sworn in by one Gopal Chandra Haider, Asstt. Secretary, to the Land & Land Reforms Department, Government of West Bengal has denied the allegations made in the writ petition. According to the said Affidavit-in-Opposition it has been contended that because of Section 1A of the W.B.L.R. Act the provisions of this Act is immune from challenge because of its protective umbrella given to it by Article 31C of the Constitution of India. To achieve the purposes specified in clauses (b) & (c) of Article 39 of the Constitution of India Section 4E has been enacted. In terms of the said Section Board of Revenue, West Bengal drew the attention of the Judicial Department of Government of W. Bengal to the aforesaid provisions of Law. It is urged that provisions of Section 26 of the Urban Land (Ceiling & Regulations) Act, 1976 in respect of vacant non-agriculture land also provides for similar permission for intended transfers. The Section was enacted to put a regularity measure to an indiscriminate transfer of land mainly used for agriculture or orchard to achieve the object of the West Bengal Land Reforms Act. It has also been contended that for guidance of the Collector in dealing with the applications Under Section 4E guidelines and direction has been given to the Collector in exercise of powers Under Section 62 of the said Act. A copy of the said guidelines is Annexure 'A' to this affidavit. According to them the expression 'land used mainly for agriculture' connotes the land is pre-dominently used for agriculture. Agricultural land has been denned in Section 2(b) of the West Bengal Estates Acquisition Act, 1953. The expression 'ordinarily used' cannot be precisely denned. Its general connotation is adequately intelligible and does not face the Authorities with unlimited and uncanalised power. This follows particularly because of Annexure 'B' to the Affidavit. It is also contended that the said affidavit-in-opposition that the writ petitioners did not produce their respective documents of purchase. Since the purchases were made in the year 1980 and the area concerned exceed 500 sq. metres and because of assertion made by the writ petitioners that the land is not used for agriculture purposes it will come under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976. According to the respondents there is a prima facie case to indicate that the provisions of the said Act has been violated on the facts as disclosed by the writ petitioners. It has also been contended that since the West Bengal Land Reforms Amendment Act, 1981 has received the assent of the President under Article 254 of the Constitution of India, it has a over-riding effect over any provisions of any Act made by the Parliament or the State Legislature.

4. To appreciate the case of the respective parties Under Section 4E of the Act is set out below :

"4E Bar to registration-

No transfer (including sales in execution of a decree of a Civil Court or for recovery of areas of Land Revenue) of any land or interest in such land within an urban agglomeration as defined in the Urban Land (Ceiling & Regulation) Act, 1976, or within any particular of such urban agglomeration, as may be specified by the State Government by Notification in the Official Gazette and the used mainly for agriculture or as an orchard, without any Order in writing of the Collector shall be valid and no Registering Authority shall notwithstanding the provisions of the Registration Act, 1908 register a document of such transfer unless Order of the Collector in writing permitting such transfer is produced :

Provided that an application made to the Collector for permission for any such transfer made of once own motion or for registration of transfer in execution of a decree of a Civil Court shall be disposed of by the Collector within 60 days of the application failing which it shall be within the rights of the Registering Authority to register the document of transfer."

5. On an analysis of the said Section, it will appear that it prohibits transfer of land which are used mainly for agriculture or as an orchard and also bars its registration under the provisions of the Registration Act unless an Order of the Collector in writing permitting such transfer is obtained and preduced. Proviso to this Section lays down that if such application for permission is not disposed of by the Collector within 60 days the Registering Authority will be within their rights to register the document of transfer, Mr. Ghosh has primarily contended that expression 'mainly used for agriculture' is vague. The term has not been defined. Accordingly, the Collector is vested with unguided power which he can use arbitrarily, because of vagueness, this Section cannot be held to be valid. Executive Authorities shall not be vested with such unguided power.

6. The Ld. Advocate General contended that expression 'mainly' means 'pre-dominently'. If the user of land is for agriculture pre-dominently, it is covered by Section 4E. Casual use of any land for agriculture will not bring the land within the scope of Section 4E. Moreover, a guideline Annexure 'A' dated 27th March, 1987 has dealt with the matter and has given adequate guidelines to the Collector in disposing of the applications under this Section. It is claimed that the said Notification Annexure 'A' was issued in exercise of powers Under Section 62 of the Act. Sction 62 provided that State Government may give such directions, not inconsistent with the provisions of this Act to any Collector, Revenue Officer or prescribed Authority under this Act as may appear to the State Government to be necessary for carrying out the purposes of this Act or any rule made thereunder. This Section empowers the State Government to issue directions or guidelines in respect of any provisions of the Act for carrying out the purposes of the Act. Annexure 'A' to the Affidavit-in-opposition has accordingly been issued in exercise of powers vested in the State Government. In paragraph 3 of the said Notification it is stated that the policy of the State Government in enacting this provisions of law is to secure that ownership and control of land are so distributed and that the agricultural resources are so used as best to subserve the common good and to prevent concentration of property to the common detriment. Keeping these objects in view the Collector shall take into consideration the following points in dealing with and disposing of an application Under Section 4E of the Act and shall cause an enquiry to be made for the said purposes. Amongst other grounds it provides that enquiry shall relate to if the proposed transfer is a colourable transfer of agriculture or orchard land and the future use of the land is likely .to be other than agriculture or as an orchard. To ensure this the transferees required to give a declaration that the character or nature of the land will not be changed. The point of enquiry will also relate to if the land in question is a vested land or not and if the transferor holds land in excess of ceiling limit. In this connection, an Affidavit has to be sworn in by the transferor declaring the total quantity of land of various description held in the West Bengal by him. Permission will be refused by the Collector until the excess land which is to vest in the State has been determined by the Revenue Officer and possession taken over by the State. In dealing with such application the Collector has been asked to consider the provisions of Sections 14M (5) & (6) as well as Section 14P of the Act. The Collector has also been directed to intimate the persons concerned if he finds that though the land is recorded as agricultural land or an orchard but is not being used mainly for agriculture or as an orchard that his case does not come within the purview of Section 4E. Drawing my attention to this provision of Annexure 'A' to the Affidavit-in-opposition, the Ld. Advocate General contended that if the section is read along with Annexure 'A' there will be no vagueness and sufficient and any land owned by raiyat in excess of ceiling area applicable to him shall vest in the State free from all encumbrances. Section 14M provides the ceiling area in case of a raiyat as well as its family members. It is, therefore, quite clear that the lands used mainly for agriculture or as an orchard is within the scope of the West Bengal Land Reforms Act. Therefore, the decision relied on by Mr. Ghose does not help him on his contentions.

7. In Bhim Singhji's case referred to above Supreme Court held permajority that the entire ULCR Act, 1976 is valid save and except Section 27(1) in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or of a portion of such building which is within the ceiling area. Section 26 of the ULCR Act provides for a notice to be given before transfer of vacant: land. It provides no person holding vacant land within the ceiling limit shall transfer such land by way of sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority. Sub-section (2) of the Section provides for an option of the Competent Authority to purchase such land on behalf of the State Government at a price calculated in accordance with provisions of Land Acquisition Act. It further provides that if such option is not exercised within a period of 60 days from the date of receipt it shall be presumed that the Competent Authority has no intention to purchase such land and it shall be lawful for such person to transfer the land to whomsoever he may like, subject to the proviso to the said section. Section 28 of the said Act regulates registration of documents in certain cases. In case of transfer covered by Section 26 a registering officer shall register a document of transfer unless the transferor produces before such registering officer evidence to show that he has given notice of the intended transfer to the Competent Authority under the section and where such transfer is by way of sale the period of 60 days the limits of an urban agglomeration and referred to as such in the master plan or .... but does not include any such land which is mainly used for the purpose of agriculture. It may be noted that in this definition the expression mainly used for purposes of agriculture has been used. Mr. Ghose submitted that since the provisions of Section 27(1) of the ULCR Act and the provisions of Section 4E under challenge is similar accepting the decision the Section 4E shall also be held to be invalid. It may be noted that this decision does not set aside the entire Section 27(1). It only invalidates that part of which impose a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building. Section 21 of the ULCR Act defines vacant land. It means land not being land mainly used for the purposes of agriculture in an urban agglomeration but does not include land on which construction of a building is not permissible under the Building Regulation inforce in the area in which such land is situated. Section 4 lays down that in case of every person the ceiling limit shall be in respect of only vacant land. Land with a building does not come within the definition of vacant land. No ceiling limit has been provided for land with building. Accordingly the land with building does not come within the scope of the ULCR Act. Putting restriction on transfer of such land which does not come within the scope of the Act was held to be invalid. Section 4E related to lands which are mainly agriculture or an orchard. Agricultural land and orchard land are very much within the scope of the West Bengal Land Reforms Act. The definition of land Under Section 2(7) of the West Bengal Land Reforms Act means land of every description and includes land under various uses as enumerated in the said section. Section 14S provides that on the commencement of the provisions of Chapter 11B or on any subsequent date any concrete guides has been provided to the Collector in dealing with and in disposing of the applications Under Section 4E., It will appear that even though the expression mainly agriculture is not defined in the Section itself and if it is read with the guidelines issued by the State Government it will clearly appear that there is little scope for abusing the power given to the Collectors Under Section 4E. In this view the main challenge thrown Mr. Ghose fails.

8. Mr. Ghose then drew my attention to the decision (Maharao Saheb Sri Bhim Singhji v. Union of India). This case related to the Vires of Urban Land (Ceiling & Regulations) Act, 1976. The majority judgment of the Full Bench held that Sub-section (1) of Section 27 was invalid in so far as it imposed an restriction on transfer of any urban or urbanisable land with a building or a portion only of such building, which is within the ceiling area. Such property will therefore be transferable without the constraint mentioned in Sub-section (1) of Section 27 of the said Act relates to provisions on transfer of urban property. It lays down that no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding 10 years or otherwise, any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of 10 years of such commencement or from the date on which the building is constructed whichever is later, except with the previous permission in writing of the Competent Authority. ULCR Act, 1976 is an Act to provide for the imposition of a ceiling on vacant land in urban agglomeration. Urban Land has been denned in Section 2(o). According to it urban land means any land situate within the referred to in Sub-section (2) of that Section has elapsed and in case of transfer referred to in Section 27 no document shall be registered unless the transferor produces the permission in writing of the Competent Authority for such transfer or is satisfied that the period of 60 days referred to in Sub-section (4) of that Section has elapsed. Effect of Section 26 and Section 28 is similar to Section 4E of the West Bengal Land Reforms Act under challenge. As Supreme Court has upheld the validity of Section 26 & Section 28 of the ULCR Act, there is no reason why on similar grounds the validity of Section 4E shall not be upheld. In this connection, it may also be noted that ULCR Act has used the expression 'mainly used for agriculture'. Supreme Court did not find that such, expression is no vague as to invest to the Authorities concerned with unguided power resulting to its arbitrary use. Section 5 of the West Bengal Land Reforms Act provides that transfer of a holding of a raiyat shall be made by an instrument which must be registered and the Registering Officer shall not accept for registration any such instrument unless it satisfies Clauses (a) to (d) of the said Section. Clause (c) lays down that purpose for which the lands shall be used by the transferee has to be stated therein. The user of the land in contravention of Sections 4B & 4C is not permitted under the Law. This being the position regulating the incident of ownership of a raiyat in respect of a holding under the West Bengal Land Reforms Act provisions for regulation for registration of the document is only a natural corollary.

9. Mr. Ghose, learned Advocate for the writ petitioner has submitted that the impugned provision is in contravention of Article 300A of the Constitution of India. Article 300A provides that no person shall be deprived of his property save by Authority of Law. If provision of Section 4E is held to be valid, no question of violation of Article 300A arises. Right to property has ceased to be a fundamental rights under the Constitution of India. To determine if any enactment violates the command of Article 300A, is only to be seen whether the Law which makes such provision of depriving a citizen of his1 property is a piece of legislation properly enacted. In this application though the submission has been made by the learned Advocate it has no direct bearing as the question of validity of provisions of Section 4E is under challenge. If that is upheld and even if it causes some deprivation and/or limited embargo on enjoyment of the property or of any incident of ownership that cannot be violative of Article 300A of the Constitution of India.

10. Learned Advocate General has submitted that this enactment has a protective umbrella in terms of Article 31C of the Constitution. I have already referred to Section 1A of the West Bengal Land Reforms Act. It was declared that the Act is for giving effect to the policy of State towards securing the principles specify in Clauses (b) & (c) of Article 39 of the Constitution of India. Article 31C grants saving of laws giving effect to the certain directive principles of the Constitution of India and provides that notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away of abridges any of the rights conferred by Article 14 or Article

19. Article 39 imposes an obligation on the State to direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best, to subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. I have already indicated that West Bengal Land Reforms Act was enacted to achieve these purposes and Section 1A has enacted is no uncertain terms of object of the legislation. On an analysis of the Act itself it will appear that it has adequately provided for imposing a ceiling limit on the holding of a raiyat and for vesting the lands in excess of the ceiling limit and distribution of such vested land in the State to persons holding no land or holding land in a very small quantity. Accordingly, this enactment has the protective umbrella of Article 31C of the Constitution of India.and it cannot be challenged as being violative of Article 14 or Article 19.

11. Learned Advocate General also contended that in this application the writ petitioners have not come up with clean hands. The writ petitioners have claimed that they have become the owners of the property by virtue of the purchase in the year 1980 when the ULCR Act, 1976 has already come in force. If the character of the land as claimed by the writ petitioners is for residential purpose and no structure has been constructed thereon it will come within the definition of vacant land of the said Act. In getting such lands transferred the provisions of Sections 26 & 28 will operate, unless the transferred document indicated that these lands are agricultural lands. The documents of transfer if produced would have indicated the nature and character of the land purchased by the writ petitioners. If in the need itself without purchase the land which are all agricultural in nature they cannot now change its character by constructing residential premises thereon and if it was vacant land at the time of transfer then such transfer if not in compliance with the provisions of the ULCR Act should be treated as invalid in Law. The writ petitioners have not replied to these allegations made in the Affidavit-in-opposition not they have produced those documents of transfer. It is, therefore, difficult for the Court to arrive at a definite finding as to the nature and character of the land purchased by the writ petitioners and if the provisions of Section 4E of the West Bengal Land Reforms Act is in their case.

12. In view of my findings as above, I uphold the validity of Section 4E of the West Bengal Land Reforms Act, 1955 as inserted by the West Bengal Land Reforms (Amendment) Act, 1981 and this writ application stands dismissed.