SANTOSH KUMAR SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule is directed against an order passed by the appellate authority under section 44 (3) of the west Bengal Estates Acquisition Act affirming an order of the Assistant Settlement Officer made under section 44 (2a) of the Act. The Assistant Settlement Officer by his order dated April 16, 1971 revised the record of rights by recording certain lands in Mouza Dakshin akhratola under Police Station sandeshkhali in the District of 24 Parganas as the lands of the petitioners overruling their objection that they lad settled the lands with tenants in the year 1357 B. S. The tenants with whom the lands were alleged to have been settled are the wives of two of the petitioners. The appellate authority also disbelieved the story of settlement and affirmed the order of the Assistant settlement Officer. In this Rule he petitioners question the propriety of he order revising the record of rights in respect of the lands in question.

(2.) ON behalf of the petitioners it was contended that the order under section 44 (2a) was without jurisdiction in view of the first proviso to the section in which says that an officer revising on entry in the record of rights under section 44 (2a) is not empowered to cancel or modify "any order passed under section 5a" of the Act. This contention is based on the following facts : In respect of the same lands an enquiry under section 5a was started in or about the year 1959 on the assumtion that the lands had been transferred within the period mentioned in section 5a, that is between May 5, 1953 and the date of vesting. The transfer allowed was the settlement pleaded by the petitioners in this case. It appears from the order dated January 15, 1960 passed by the Officer making the enquiry under section 5a that he found that the transfer was made before May 1953, in 1357 B. S. Having found this the Officer concluded his order by saying, "these transfers are considered to be bona fide under Rule 5 (3) of the e. A. Act". This was followed by a proceeding under section 47 of the Wes bengal Estates Acquisition Act in which the Revenue Officer referring to the order passed in the enquiry under section 5a observed that as it was found that the transfer was made prior to May 5, 1953 the declaration contained in the order that the transfer was bona fide was uncalled for and that it should have been held that the transfer did not come under the provisions of section 5a. On this view the Revenue Officer dropped the proceeding under section 47 of the Act.

(3.) THE question that arises for decision is whether on these facts the first provision to section 44 (2a) is attracted, in other words, whether an order recorded in the course of an enquiry under section 5a that the transfer in question is outside the scope of the section can be called an order "under section 5a as contemplated in the first proviso to section 44 (2a)