G.N. Ray, J. - (1.) This writ petition is directed against the adjudication made by the authority under Sec. 4(1) of the West Bengal Restoration of Alienated Land Act, 1973 in Case No. 294 of 1976 and the appellate order passed by the appellate authority on an appeal from the order passed in the said Case No. 294 of 1976 and further adjudication by the authority under Sec. 4(1) of the said Act on remand of the matter by the appellate' authority on 4th August, 1978. The respondent no. 4, Sri Bijoy Krishna Bera owned and possessed various lands as referred to in para 1 of the writ petition and the said respondent no. 4 by two registered kobalas dated 6th May, 1969 and 26th July, 1968 sold such properties to one Bankim Behari Sasmal for Rs.1,000/ - and Rs.998/ -. Later on the purchaser, Sri Bankim Behari Sasmal sold a portion of the R.S. plot No. 390 and bamboo grove of dag No. 394/489 and the tank in C. S. 390/488 to the writ petitioner on 30th March, 1972 by a registered kobala for a consideration of Rs. 1900/ -. The respondent No. 4 thereafter made an application under Sec. 4(1) of the West Bengal Restoration of Alienated Land Act, 1973 for restoration of the lands transferred by him to Sri Bankim Behari Sasmal a part of which was subsequently transferred to the writ petitioner, Sm. Ratu Dutta. The authority under Sec. 4(1) of the West Bengal Restoration of Alienated Land Act allowed the said application made by the respondent No. 4 and directed for restoration of the disputed land on and from 1st Baisakh, 1384 B.S. and it was further directed that the petitioner would pay Rs.1650/ - to the opposite party in five instalments which he would start paying after two years from the date of the order.
(2.) Being aggrieved by the aforesaid" adjudication the writ petitioner preferred an appeal under the Restoration of Alienated Land Act before the appellate authority whereupon L.A. 42 of 1977 was started. By a judgment dated 15th December, 1977 the appellate authority directed that the applicant Sri Bijay Krishna Bera would be restored to possession of the plot No. 390/488 and also a part of the homestead land but in respect of the said plot no. 390 the said Sri Bera would not get any possession on such portion where Sm. Ratu Dutta had constructed a house and a tubewell. It was further directed that Sm. Ratu Dutta would be entitled to retain plot no. 394/489 which was recorded as a bamboo clump on the footing that the said plot was not an agricultural land within the meaning of Restoration of Alienated Land Act, and the application for restoration of possession of the said non -agricultural land was not maintainable. The appellate authority inter alia ordered that in view of the definition of landing Sec. 2, the tank in plot No. 390/488 should be treated as agricultural land. The appellate authority further directed that in view of modification of the order of restoration by the appellate authority, there should be revision of the compensation payment and the matter was sent back on remand before the Special Officer being authority under Sec. 4(1) of the Act for making the order of restoration and the Award of compensation in terms of the direction contained in the appellate order. After such remand, the said Special Officer considered the report of the Amin dated 2nd August, 1978 and held inter alia that from such a report it transpired that Sm. Ratu Dutta occupied homestead land measuring.08 decimals only. Sm. Ratu Dutta was entitled to retain altogether. 15 decimals out of.47 decimals there should be order for restoration of possession to the applicant. The said Special Officer further held that a sum of Rs.650/ - should be deducted from the original award of compensation of Rs. 1650/ - and the applicant Sri Bera should therefore pay a sum of Rs. 1000/ - to Sm. Ratu Dutta in five equal instalments and he would have the right to go into the possession of the other plots measuring.32 decimals and from 1st Baisakh 1386 B.S., Sm. Dutta should deliver vacant possession of such land.
(3.) After such order on remand of the matter was made by the Special Officer the instant writ petition has been moved by the petitioner Sm. Ratu Dutta and the learned counsel appearing for the petitioner has contended that on the face of the application made by the respondent no. 4 Bijoy Bera, the said application for restoration of alienated land was not maintainable under the said Act and the authority under Sec. 4(1) of the said Act therefore could not assume any jurisdiction to decide the case of restoration of the said land. The learned counsel has contended that the application itself discloses that the lands are tank, bhiti and bamboo grove. Such lands not being agricultural lands cannot be the subject matter of restoration under the said Restoration of Alienated Land Act. He has further contended that so far as the writ petitioner is concerned, she has purchased only a portion of the land and as such the application for restoration against her was not maintainable. The learned counsel has further contended that the appellate authority had no jurisdiction to remand the matter to the Special Officer and such order of the appellate authority was wholly without jurisdiction and accordingly the Special Officer could not pass any further order on the purported remand and on such ground also the impugned orders are illegal and without jurisdiction. The learned counsel has contended that under the West Bengal Restoration of Alienated Land Act, there is no provision which authorises the appellate authority to send the matter back on remand to the special officer. Accordingly, such order and consequential order passed by the special officer on remand must be held to be illegal and without jurisdiction.;