Sinha, J. - (1.) These three applications involve a short point of law and have been heard together. The petitioners in these three cases are occupancy raiyats (Raiyat Sthitiban) and their holdings are situated in village Debipur Gurguria, J. L., No. 163 under Police Station Jaynagar, within one of the temporarily settled estates, being lot No. 119, in Pargana Sunderban within Touzi No. 3016 of the Collectorate of 24-Parganas. It is unnecessary to go into the detailed facts of the case. It is sufficient for our purposes to set out some admitted facts which have a direct bearing on the point at issue. The record-of-rights in respect of village Debipur Gurguria where these lands are situated, was finally published in 1933, under the provisions of Chapter X of the Bengal Tenancy Act, 1885, (Act VIII of 1885). It was then revised and finally published in 1943. In the year 1946, settlement operation for preparation of record-of-rights in respect of the said village Debipur Gurguria under the provisions of Chapter X of the Bengal Tenancy At 1885, was again started. It is a matter of dispute as to what stage the settlement operation reached, but it is admitted that the final publication was no. made under section 103A(2) of the Bengal Tenancy Act, 1885. This is the position when the West Bengal Estates Acquisition Act, 1953, (Act I of 1954) (hereinafter referred to as 'the Act') came into operation. Thereafter, an order has been passed, purporting to be an order under section 39(1) (b) of the said Act. It has been published by the Deputy Secretary, Land and Land Revenue Department by order of the Governor of the State of West Bengal in the Calcutta Gazette dated the 5th August, 1954, (Part I pages 2616-7). The relevant part of the order is as follows : "24-Parganas-No. 10880 L. Ref.-20th July, 1954. In exercise of the power conferred by Clause (b) of Sub section (1) of Section 39 of the West Bengal Estates Acquisition Act, 1953, (West Bengal Act I of 1954) read with the Rule 26 of the West Bengal Estates Acquisition Rules, 1951. the Governor is pleased, for carrying out the purposes of the said Am, to make this order directing that the record-of-rights prepared and finally published under Chapter X of the, Bengal Tenancy Act, 1885, (VIII of 1885), in respect of the District of 24-parganas, be revised by a Revenue officer in accordance with the provision-. of Chapter V of the said Act and the and Rules made in this behalf by the State Government..........."
(2.) The rest of the notification consists of the particulars to be recorded under sub-section (3) of the said section.
(3.) In order to discover the defect in this notification, it is necessary to refer to section 39(1) (b) and (4) of the Act which are set out below. "39-Preparation of record-oi rights. I Subject to the provisions of sub-section (4), the State Government may, for carrying out the purposes of this Act, make an order directing- (b) that the record-of rights prepared and finally published under Chapter X of the Bengal Tenancy Act, 1885, (VIII of 1885), in respect of any district, or part of a district be revised, by a Revenue Officer in accordance with the provisions of this Chapter and such rules as may be made in this behalf by the State Government. (4) Where any proceedings in respect of the preparation of record-of rights have been commenced under Chapter X of the Bengal Tenancy Act 1885, before this Act comes into fore and such record-of-rights has not been finally published before such date, am further proceedings required for the completion and final publication of' such record-of-rights shall be undertaken in accordance with such rules as may be prescribed. Such record-of-rights shall thereupon be deemed to have been duly prepared and finally published under this Chapter.";