Judgment : An application under Section 4 of the West Bengal Restoration of Alienated Land Act, 1973 (hereinafter referred to as the 'Act') was filed at the instance of the writ petitioner before the Special Officer, Diamond Harbour-I, Development Block, 24-Parganas, who is authorised under the Act to entertian such application. It appears that the said application under section 4 of the Act was filed in respect of 1.68 acres of agricultural land comprising various plots in Khatian No. 44, Mouja Bhaganwanpur, P. S. Diamond Harbour, District-24-Parganas (S). The said application was filed on the ground that the writ petitioner at the time or transfer to the private respondent has not holding more than two hectres of land and the said land was sold in need of money for his maintenance and for maintenance of his family members. The said application under section 4 of the Act came to be registered as Case No. 1 of 1975. The Special Officer by a judgment and order dated 20.9.76 rejected the said application under section 4 of the Act holding, inter alia, that the writ petitioner at time of transfer held more than two hectres of land. 2. Feeling aggrieved by this order, the writ petitioner tiled an appeal being Appeal No. R. A. L. Appeal Case No. 117/76-77 before the Sub-divisional Officer, Diamond Harbour, 24-Parganas (S). By a judgment and order dated 11th of January, 1987, the appellate Authority dismissed the said appeal filed by the writ petitioner mainly on a finding that the writ petitioner could not prove that he and the members of his family held less than one acre of land on the date of filing of the application under section 4(1) of the Act. 3. Being aggrieved by the aforesaid two orders passed by the tribunals below, the writ petitioner has come up before this Court under Article 226 of the Constitution for setting aside the said two orders. 4. Having heard the learned Advocates appearing for the writ petitioner and the respondent No.3 and after ping through the orders impugned, I am of the view that the' order of the appellate Authority should be set aside and the appeal should be remitted back to the appellate authority for re-hearing of the same in the light of the observations that would be made by me hereinafter. 5. 5. It appears from the order of the appellate authority that the appellate authority dismissed the appeal of the writ petitioner merely on the following findings : "Now though there is no mention of family in section 4(1) of the Act, it is clearly stated in section 4(10) of the Act that the transferor will not get the benefit of the act if the transferor including the members of his family do not hold less than one acre of land on the date of application made under sub-section (1). The appellant could not prove that he including the members of his family held less than one acre of land on the date of application made under sub-section (1) of section 4 and hence consideration of other points of other sub-section mentioned in written argument, do not arise." 6. It is seen from above, that the appellate authority dismissed the appeal on a finding that the writ petitioner; who was the transferor in this case, had failed to prove that he was not holding at the time of transfer less than one acre of land, as required in section 4(10) of the said Act. 7. In my view, this finding of the appellate authority, is erroneous on the face of the record. 7. In my view, this finding of the appellate authority, is erroneous on the face of the record. At this juncture, it is necessary to refer to Sections 4(1) and 4(10) of the Act, which are as follows: Section 4(1) "(1) Where before the commencement of this Act (or between the date of such commencement and the date of commencement of the West Bengal Restoration of Alienated Land Amendment Act, 1980) a person being the transferor holding not more than 2 hectres of land in the aggregate (on the date of transfer) transferred the whole or any part of his land by, sale to any person being the transferee, then if.- (a) such transfer was made after the expiry of the year 1967 being (......) in need of money fur the maintenance of himself and his family or for meeting the cost of his cultivation, or (b) such transfer was made after the expiry of the year 1967 with an agreement, written or oral, for reconveyance of the land transferred, to the transferor, the transferor may, (within ten years from the date of commencement of this Act), make an application in the prescribed manner to the Special Officer having jurisdiction in the area in which the land transferred is situate for restoration of such land to him." Section 4 (10) : "(j) If the transferee including the members of his family holds on the date of transfer not more than ane acre of land including the transferred land and such land becomes the principal sources of income of the transferee including the members of his family, the Special Officer shall not make any order under sub-section (4) unless the transferor including the members of his family holds not more than one acre of land on the date of the application made under sub-section (1)." 8. Section 4(1) of the Act empowers the Special Officer to pass an order of Restoration of possession of the land sold if the transferor proves that (1) he does not hold more than two hectres of land and (2) he has sold the land in need of money fur his maintenance and for maintenance of his family members. Section 4(1) of the Act empowers the Special Officer to pass an order of Restoration of possession of the land sold if the transferor proves that (1) he does not hold more than two hectres of land and (2) he has sold the land in need of money fur his maintenance and for maintenance of his family members. Section 4(1) of the Act says that if the transferee including the members of his family holds on the date of transfer not more than one acre of land including the transferred land and such land becomes the principal sources of income of the transferee including the members of his family, then the Special Officer shall not make any order under sub-section (4) of Section 4 of the Act unless the transferor, including the members of his family, holds not more than one acre of land including the transferred land on the date of making the application under Section 4 of the said Act. 9. Therefore, from a bare reference to Sections 4(1) and 4(10) of the Act, it is clear that an applicant, who seeks restoration of the land sold by him, has to prove that on the date of transfer, he held not more than 2 hectres of land and such land was sold in need of money for his maintenance and for maintenance of his family members. If the Special Officer is satisfied that the said applicant has established his case for restoration of the land sold by proving the aforesaid grounds, still then it is not open for the Special Officer, under the Act, to pass an order of restoration of the land sold, if the transferee establishes that he, including the members of his family, holds on the date of transfer not more than one acre of land including the transferred land and such land has become the principal sources of income of the transferee including the members of his family. If the transferee proves as such, then again in order to get an order of restoration of the land sold under Section 4(1) of the Act, the transferor has to prove that he, including the members of his family, holds not more than one acre of land on the date of making the application under Section 4(1) of the Act. 10. 10. Therefore, in my view, it was not open for the appellate authority to dismiss the appeal of the writ petitioner only on the ground that the writ petitioner was not entitled to restoration of the land sold as he was not holding Jess than one acre of land on the date of making the application under Section 4(1) of the Act. The appellate authority, in its order, held that the writ petitioner could not prove that he, including the members of his family, held less than one acre of land on the date of making the application under Section 4(1) of the Act. In view of the above, it was not felt necessary by the appellate authority to decide the appeal on other points that were taken by the writ petitioners in their written argument, filed on their behalf. Application of Section 4(10) of the Act, in my view, would arise only after the applicant for restoration of the land sold, proves his case for restoration under Section 4(1) of the Act. Section 4(10) of the Act in my view says, that even if the transferor proves his case under section 4(1) of the Act even then the transferor shall not get restoration of the land sold if the transferor proves that on the date of transfer, he including his family members held not more than one acre of land and income from the transferred land became the principal source of income but inspite of that restoration of land shall be made in favour of the transferor only if the transferor proves that on the date of making the application under Section 4(1) of the Act he held not more than one acre of land. 11. 11. Therefore, the appellate authority before coming to the finding arrived at by it, ought to have, come to a finding as to whether the writ petitioner established his case for grant of restoration under Section 4(1) of the Act and thereafter, ought to have come to another finding as to whether the transferee, including the members of his family, was holding on the date of transfer not more than one acre of land including the transferred land and such land became the principal sources of income of the transferee including the members of his family only then the question of not granting restoration of land by the Special Officer under the Act, would arise except that if the transferor including the members of his family held not more than one acre of land on the date of making the application under Section 4(1) of the Act, he was still that entitled to restoration. 12. I am therefore, of the view that the appellate authority had acted illegally and in the procedure by holding that as the writ petitioner could not prove that he including the members of his family held land than one acre of land on the date of making the application under Section 4(1) of the Act, the appeal, filed by the petitioner, must be dismissed. 13. For the reasons aforesaid, the order of the appellate authority cannot be sustained and accordingly, the order of the appellate authority is hereby set aside. 14. The appeal is remitted back to the appellate authority for re-hearing of the same en merits afresh in accordance with law after giving opportunity to the parties of being heard and the appeal must be disposed of within six months from the date of communication of this order. 15. Accordingly, the Rule is made absolute to the extent as indicate above. 16. There will be no order as to costs. Let xerox copy of this order be given to the learned Advocates appearing for both the parties on usual undertaking.