A.C.GUPTA,J. - (1.) This Rule is directed against an order passed by the appellate authority under Sec. 44(3) of the West Bengal Estates Acquisition Act affirming an order of the Assistant Settlement Officer made under Sec. 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 had 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 the petitioners question the propriety of the order revising the record of rights in respect of the lands in question. On behalf of the petitioners it was contended that the order under Sec. 44(2a) was without jurisdiction in view of the first proviso to the Sec. which says that an officer revising on entry in the record of rights under Sec. 44(2a) is not empowered to cancel or modify "any order passed under Sec. 5A" of the Act. This contention is based on the following facts : In respect of the same lands an enquiry under Sec. 5A was started in or about the year 1959 on the assumption that the lands had been transferred within the period mentioned in Sec. 5A, that is between May 5, 1953 and the date of vesting. The transfer alleged 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 Sec. 5A that he found that the transfer was made before May 5, 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 Sec. 47 of the West Bengal Estates Acquisition Act in which the Revenue Officer referring to the order passed in the enquiry under Sec. 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 Sec. 5A. On this view the Revenue Officer dropped the proceeding under Sec. 47 of the Act.
(2.) The question that arises for decision is whether on these facts the first provisio to Sec. 44(2a) is attracted, in other words, whether an order recorded in the course of an enquiry under Sec. 5A that the transfer in question is outside the scope of the Sec. can be called an order "under Sec. 5A" as contemplated in the first proviso to Sec. 44(2a).
(3.) Sec. 5A empowers the State Government to enquire into any case of transfer of land by an intermediary made between May 5, 1953 and the date of vesting. Sub -section (1) of Sec. 5A indicates that the enquiry must be proceeded by the formation of an opinion by the State Government that prima facie the transfer was not bona fide. Formation of such an opinion necessarily implies a finding that the transfer was made within the period stated in Sec. 5A(1). This finding, however, is also prima facie and tentative as the opinion is. The enquiry under Sec. 5A, as sub -sections (2) and (3) of the Sec. make it clear, is directed to find out whether the transfer was or was not bona fide. In making this enquiry the State Government or the Officer to whom it may delegate its powers under sub -section (4) of Sec. 5A obviously exercises quasi -judicial powers. The jurisdiction to enquire depends upon a condition precedent, namely, formation of an opinion by the State Government, and the fact that the transfer was made between May 5, 1953 and the date of vesting. Unless the transfer was made within the period stated in Sec. 5A(1), neither the State Government nor any of its Officers acquires the jurisdiction to make the enquiry. The Supreme Court in the case of Ujjam Bai v/s. State of Uttar Pradesh & Anr. : A.I.R. 1962 S.C. 1621, quotes with approval the following passage from Halsbury's Laws of England, Third Edition, Volume 11, page 59, on an aspect of the jurisdiction exercised by an inferior tribunal : "The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent (such as notice) or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the inferior tribunal has to try and the determination whether it exists or not is logically and temporarily prior to the determination of the actual question which the interior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact : "when, at the inception of an enquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not".;