KARTICK CHANDRA BISWAS Vs. NEMAI CHARAN SANTRA

JUDGEMENT

(1.) THIS is an application by the owner of two plots of land namely, c. s. plot No. 463 and c. s. plot No. 492 of Mouza Ranjitbati from an order of the Appellate Officer disallowing his claim in respect of c. s. plot 492, for termination of bhag cultivation by the opposite party. The owner claimed that the paddy for 1361 B. S. in respect of both the plots had not been made over to him by the opposite party who is a Vag-chasi

(2.) IT appears that before the Board the opposite party did not dispute that the owner was the owner in respect of plot No. 463 and not of plot No. 492 also. Before the Appellate Officer it appears that the opposite party pointed out that as far as c. s. plot No. 492 was concerned it was recorded in the record of rights that it is in the possession of under-riots. The petitioner claimed to have taken settlement from the landlord after the landlord had obtained khas possession after the auction purchase of two plots in execution of a rent decree he had obtained against the tenants. The question, however, whether the under-riot was still on the land, c. s. plot No. 492 at the time of the auction purchase of the landlord does not appear to have occurred to the Board. Although the owner himself referred in his petition to the record of rights. it does not appear to have occurred to the Board to call upon the owner to produce the record of rights to see if there was any lacuna in the evidence of title led on his behalf. The result was that when this was pointed out to the Appellate Officer he confirmed the Board's order with respect to plot No. 468 only but not with respect to plot No. 492. With respect to c. s. plot 492 it is pointed out to me by Mr. Laik on behalf of the petitioner that the Board's order also is not valid because it is signed only by three members of the Board which consists of five. Rule 8 (1) of the rules under West Bengal Bargadars Act, 1950 is ultra vires the Act because three members of the Board which consist of five members cannot legally constitute the Board for decision of any matter referred to in Section 7. The Board's order must accordingly be held to be bad in law. If the Board's order goes, necessarily the Appellate Officer's order also must go with the. result that the application of the owner must be treated as pending and. as the Boards have been abolished this application will be treated as pending on the date when Chap. III. of the West Bengal Land Reforms Act 1955 came into force. Under section 21 (2) of that Act it will be treated as transferred to the Officer or Authority having jurisdiction over the area in which the land or the proceedings situate. That authority in disposing of the application shall consider whether the owner has adduced sufficient evidence in proof of his title. The parties will be entitled to give further evidence if they choose. The rule is accordingly made absolute. The orders of the Board as well as of the Appellate Officer are set aside. No order as to costs.