Chandan Kumar Banerjee, J. - (1.) In this writ petition under Article 226 of the Constitution the petitioner has challenged an order passed by the Special Officer as well as by the appellate authority under the West Bengal Restoration of Alienated Land Act, 1973. Mr. De, learned Advocate for the petitioner has urged various points including 4hat the Special Officer or the appellate authority did not consider the evidence given by the petitioner with regard to possession of land by the transferor. The continued improvement of the land by the petitioner was not considered, the statement contained in the sale deed were not considered, the instalments allowed and the calculations made were not in accordance with the rules and the Act. Mr. Chatterjee learned Advocate for tho respondents took a preliminary objection that the petition is verified by one Tarak Nath Basak, a tadbirkar and ha verifies paragraphs 1 to 5, 22 to 26 and 28 to 31, of the petition as true to his knowledge although he was now where in the picture when the matter was heard by the Special Officer or by the appellate authority. He has not properly verified the petition before this Court and the writ petition should be dismissed In limine. Mr. Chatterjee appearing for the respondent Nos. 4 and 5 also urged that the points urged by Mr. De are not to be found in the grounds made out in the petition or in the body of the petition. The order passed by the appellate authority suffers from no defect. He has considered the facts end came to his conclusions. There is no illegality done and therefore, the order can-1 not be disturbed. Mr. Samajdar, learned Advocate for the respondent Nos. 1, 2 and 3 submit that the orders of the Special Officer and of appellate authority did not suffer from any defect. On the facts and circumstances the appellate authority found that the talc was a sale in distress, the admitted case of the parties being that the sale was for meeting the expenses of the marriage of the second daughter of the Respondent No. 4, Himadri Prosun Chattopadhyay and sale for meeting the marriage expenses of a daughter was a distress sale. There is no evidence on record to show that the transferor's or any of them possessed more than two hectares of land at the time of the sale. The assertion made by the petitioners and their father was denied by tho transferor in bis evidence and the categorical evidence of Himadri was that he did not possess the lands which were described in the partition deed they have been sold away earlier and at the material time he possessed eighty decimals of land jointly with the co-sharers. The contention of Mr. Chatterjee that there is no properly verified petition before this Court has great force. The petitioner have invoked the Constitutions Writ Jurisdiction of this Court for redress of his grievances whereby be alleges that his rights have been infringed, the petition should have been verified by the petitioner and the petition should be dismissed on that ground alone. the grounds urged by Mr. De are not to be found in the petition. Here the Special Officer rejected the application of the transferor's. There was an appeal by the transferor's. The appellate authority reversed the decision of the Special Officer and directed restoration of tho land to tho transferor's. In doing so the appellate authority himself calculated the usufruct of the land, deducted the same from the consideration and the interest payable and directed payment by instalments, It does not appear that there was any evidence as to improvement of the land by the transferor either before the Special Officer or before the appellate authority. Thus there is no question of awarding any amount on account for compensation for improvement effected. The only defect in the order appears to be that under the provisions to sub-section (4) of Section 4 of the West Bengal Restoration of Alienated Land Act, 1973 is that the first instalment should be payable within three months from the date of the order. This had not been done by the appellant authority in directing re-payment of the consideration with interest less the amount calculated by him as share of the income. No doubt it would have been better if the appellant authority had merely set aside the order and sent back the matter to the Special Officer for determination of the income and for fixing the instalment payable. But because he did not do so that does not make the order illegal or without jurisdiction. But the first instalment of payment should have been directed to be paid within three months from the date of the order; that was not done and that is a violation of section 4 (4) proviso to the said Act. The order of the appellate authority is quashed to the extent that the direction contained therein as to payment of the amount determined by him by instalments is set aside. Rest of the order is sustained. The matter is sent back to the Special Officer under the said Act for fixing the instalments in accordance with law. The Special Officer is directed to dispose of the matter within three months from date.
(2.) The Rule is disposed of accordingly. There will be no order as to costs.
(3.) This judgment will also govern C.R. No. 2962 (W) of 1976.;