LALCHAND GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The self-same order is the subject-matter of challenge in both the Rules. The first Rule has been obtained by the son, the transferee and the second one by the transferor, the father. The subject-matter of challenge is an order passed in a proceeding under section 5A of the West Bengal Estates Acquisition Act. The impugned proceeding was initiated on 30.09.67 and in Case No.404/67. The final order is one dated 7.12.67. There is no dispute now before this Court that the impugned transfer which was declared not by the bona fide aforesaid final order, was one with in the prohibition period contemplated by section 5A of the West Bengal Estates Acquisition Act. The only point that has been pressed before me as it was passed before the Tribunal below is that this proceeding is barred because of earlier proceeding under section 5A in respect of the self-same transfer which was disposed of on 26.5.59. It appears that on 15.1.59 a proceeding was initiated under section 5A against the present petitioners in respect of the disputed transfer dated 14.12.53. This was Case No.1/59. Ultimately, by an order dated 26.5.59 this proceeding was dropped by the Revenue Officer.

(2.) It was so dropped because, on the materials then before the Revenue Officer it was not found that the transferor was holding lands above the ceiling at the date of vesting or at the relevant time of transfer. This is, however, not the real position. Subsequently it was found out that the transferor is holding land more than the ceiling on the date of the transferor. Hence, the present disputed proceeding was initiated and the impugned transfer was ultimately declared to be not bona fide. Mr. Banerjee contends, however erroneous, the earlier decision must be held to be binding between the parties and as such the present proceeding is without any jurisdiction. The Tribunals below have, in my opinion, rightly held that there was no final decision in the earlier proceeding. At that stage it could be ascertained that the transferor was holding land above the ceiling and as such the proceeding was dropped. There is no final adjudication into the nature of the proceeding. In my opinion, an order dropping proceeding under section 5A as in the present case, would not debar a fresh proceeding to be initiated. As this is only point urged in support of this Rule and when I find no merit in this contention, these applications must fail and the Rules must be discharged.

(3.) Mr. Banerjee, however, has taken exception to a statement made in the affidavit-in-opposition wherein the respondents have stated that after the aforesaid order declaring the transfer to be not bona fide all such lands have been made to real. Unfortunately no such order has been disclosed in the affidavit-in-opposition I make it clear that no such order is the subject-matter of challenge in this proceeding and it has not come within the scope of adjudication now being held in this case. The petitioners right, if any, to challenge any such vesting, if that has not been done in accordance with law, is specifically reserved. Subject to the observations as above, these Rules are discharged. There will be no order as to costs. Rule discharged.