C.N. Laik, J.
1. This Rule arises out of a proceeding under Section 5-A of the West Bengal Estates Acqulsition Act. 1953. The transferor is the petitioner. The Revenue Officer held the transfer to be bona fide. Thereafter a fresh proceeding was started under Section 5-A(3)(ii) of the said Act. One of the grounds agitated before the Special Judge in appeal on behalf of the petitioner is that Section 5-A of the Act was ultra vires of the Constitution. That point has now been set at rest by a decision of this Court and it has been held to be intra vires. The said point is no longer being pressed.
2. The other point that was agitated before the Special Judge was that the order passed by the Revenue Officer under Section 5-A(3)(ii) of the Act was Illegal Mr. Sen appearing on behalf of the petitioner has a point coupled with sweet reason. He says that there is no finding arrived at either by the Revenue Officer or by the Special Judge in appeal as to whether the transferred land or any part thereof was as a matter of fact, retained by the transferee under the provisions of Section 5-A(3)(ii). It has given a new edge to the controversy. The said Sub-clause (ii), in my opinion, opens with the duty laid on the Revenue Officer first, to come to a finding as to whether any such land was retained by the transferee. I will stop here to observe further, then and only then, the Revenue Officer can proceed to apply the consequences under Clause (ii) of Section 5-A(3). This is the arithmetic of the legal stability and the dust. I believe, should now settle down. It is a hopeful straw in the wind for the petitioner for the present.
3. I have heard Mr. Sen Gupta combating the view of his opponent appearing on behalf of the State which is in an awkward spot in this case. Having heard both the learned Advocates. I think that Mr. Sen's contention is correct and the same should be accented I noticed Mr. Sen Gupta's sense of uneasiness as he ran into trouble. His argument cut too many corners and opened prematurely.
4. Accordingly, the Rule is made absolute in part in other words, the finding that Section 5-A was not ultra vires would remain and it would no longer be allowed to be agitated by the petitioner before the Revenue Officer but so far as the order passed on the 4th of November 1969 under Section 5-A(3)(ii) read with Section 47 and Section 6(1) of the Act passed by the Revenue Officer must be set aside with a direction to the Revenue Officer to come to an appropriate finding as directed above and as provided for in Clause (ii) of Sub-section (3) of Section 5-A of the Act The part of the order of the Special Judge to the above extent is also set aside.
5. The parties would be entitled to adduce evidence before the Revenue Officer so that he might come to a proper finding. The Revenue Officer is reminded to read carefully the Judgment of this Court in Ambujakhve Mukherjee v. State of West Bengal reported in ILR (1966) 1 Cal 495 and then to proceed to decide the case and pass necessary and appropriate orders as provided for in the Act and the Rules, after service of notice on the parties.
6. There would however be no order for costs.
7. Let the records be sent down Immediately.