STATE OF WEST BENGAL Vs. SAILENDRA KUMAR SEN

JUDGEMENT

(1.) The Division Bench consisting of A. K. Sen, B. C. Roy, JJ. has referred the above revision cases to the Special Bench in view of the questions of great public importance involved therein. The questions relate to the interpretation of the provisions of Section 5-B of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) hereinafter referred to as the said Act, with reference to the date of their application to raiyati and under-raiyati holdings and consequences arising therefrom.

(2.) The relevant facts are as follows :--On December 18, 1970 the Assistant Settlement Officer Settlement 'C' Camp No. IIA, Diamond Harbour, initiated proceedings under Section 44 (2a) of the said Act for revising the finally published record-of-rights in respect of some khatians within his jurisdiction, which, according to him, were incorrectly recorded with auction purchaser the opposite party herein, as raiyat. Proceedings in respect of entries of khatians Nos. 10, 11' (624, 625 Khanda) of Mouza Haradhanpore gave rise to Case No. 156 of 1970 (under Section 44 (2a)) while proceedings in respect of entries of khatians Nos. 6, 7, 13, 15 and 24 (302, 308, 309 and 310 Khanda) of Mouja Kailpara was registered as Case No. 22 of 1970 (under Section 44 (2a)). It appears that the lands were purchased' by the opposite party in rent execution sales, on November 6, 1954 in respect of Haradhanpore lands and on Dec. 3, 1954 in respect of Kailpara lands. It was held by the Assistant Settlement Officer in the said Section 44 (2a) proceedings, following some decisions of this Court, that on the issue of the notification under Section 49 bringing the provisions of Chap. VI, relating to acquisition of interests of raiyats and under-raiyats, into force, Section 5-B applied with retrospective effect to raiyati and under-raiyati holdings, as if they were estates as contemplated in the said section. As a result, in accordance with Section 5-B which provides that there could be no sale of estates under the Bengal Tenancy Act after June 1, 1954 and any sale held thereafter is to be deemed as void and of no effect the auction purchases in rent sales made admittedly after that date by the opposite party were thus void and of no effect. Accordingly by orders dated January 8 and 27, 1971 the record-of-rights in respect of above khatians were directed to be revised as recording the names of the former recorded raiyats as raiyats with possession of the lands with the auction purchaser as adverse to the recorded raiyats.

(3.) Appeals were preferred against the aforesaid orders by the opposite party under Section 44 (3) giving rise to E. A. Appeals Nos. 86 and 87 of 1971 respectively. By an order dated December 9, 1971 the learned Ninth Additional District Judge, Alipore as the Tribunal under Section 44 (3) allowed the appeals on contest and set aside the impugned orders holding that Section 5-B had no application to raiyati interest and the Assistant Settlement Officer was not justified in treating the auction purchases as invalid. The State of West Bengal has obtained the connected rules against the said orders of the learned Tribunal which on reference, are now before us.