JUDGMENT P.K. SAMANTA, J. 1. Heard the Learned Advocates for the respective parties. Perused the records relating to the Big Raiyats proceeding namely B.R. Case No. 54 of 1967 in relation to the disputed lands. 2. The subject matter of this writ petition is 4.16 decimals of lands of plot no. 3451 of Rs. Khatian No. 209 of Mouza Chaital, Police Station Haroa, District 24 Parganas. This writ petition is directed against the grant of pattas in favour of the respondent nos. 7 to 28 in respect of the aforesaid lands. 3. The case of the writ petitioners is that the disputed lands belonged to Balaram Roy and others who were recorded as Raiyats in respect of the same and had sold the same by two registered Kobalas dated 2nd June, 1959 to one Jaker Mondal and his son Sahidur Rahaman Mondal. The names of the said Mondals were mutated in the Rent Roll of the said lands. The petitioners by 9 registered sale deeds dated 19.7.1982, 13.1.1983 and 17.5.1983 purchased the aforesaid lands from the successor-in-interest of the said Mondals. Since after purchase while the petitioners are in peaceful possession of the same, it came to the knowledge of the petitioners that the local Gram Panchayat and Sthaye Samity were purporting to distribute the said lands among the landless persons of the locality. Since no proceeding for vesting of the lands was within the knowledge of the petitioners and/or their predecessor in interest so the petitioners moved a writ petition in this court challenging the purporting vesting of the same. In the said writ petition a rule was issued which was registered as C.R. No. 2796(W) 1984 and an interim order of injunction restraining the State/respondents from settling the disputed lands was passed on 19th March, 1984. In the said writ petition the present private respondents were not parties. In these state of things some time in the month of June, 1984 the said respondent nos. In the said writ petition the present private respondents were not parties. In these state of things some time in the month of June, 1984 the said respondent nos. 7 to 28 having tried to forceably enter upon the disputed lands on the plea that they were granted pattas in respect of the same, the present writ petition was moved challenging the said pattas on the ground that there being no vesting order of the said lands in presence of the writ petitioners and/or their predecessor-in-interest the purported settlement of the same by granting pattas by the state/respondents was absolutely in illegal exercise of authority under the provisions of law. It is further the case of the writ petitioners that the names of the predecessor-in-interest of the petitioner namely the Mondals were mutated in the Rent Roll of the said lands after their purchases in the year 1959 and the rents having been realised from them they were recognised as tenants under the State Government. The petitioners having purchased the disputed lands from the said Mondals the purported order of vesting of the same, if there be any, without any notice and behind the back of the said Mondals and/or the petitioners is absolutely bad in law and consequently the pattas are liable to be set aside. 4. The state/respondents though did not file any affidavit-in-opposition to this writ petition but pursuant to the order of this court produced the records relating to the Big Raiyat proceeding in respect of the disputed lands. On the strength of the said records it was contended that the disputed lands vested to the State Government in the aforesaid B.R. Case No. 54 of 1967 initiated against the father of Balaram Ray namely Krishna Chandra Roy. Consequently, it was urged that the petitioners being the post vesting transferee cannot have any interest whatsoever in the disputed lands and the same being the vested lands of the State Government were lawfully settled amongst the respondent nos. 7 to 28 by granting pattas. In this writ petition by an interim order dated 13th September, 1994 the private respondents were restrained from disturbing the possession of the petitioners in any manner whatsoever in the disputed lands pending disposal of the writ petition. 7 to 28 by granting pattas. In this writ petition by an interim order dated 13th September, 1994 the private respondents were restrained from disturbing the possession of the petitioners in any manner whatsoever in the disputed lands pending disposal of the writ petition. The said respondents filed an application for vacating the aforesaid interim order, which, by order of this court was treated as an affidavit-in-opposition to this writ petition. In the said application it was reiterated that the disputed lands vested to the State Government in the aforesaid B.R. Case No. 54 of 1967 from the ceiling of lands of the father of Balaram Roy namely Krishna Chandra Roy. It was further disclosed that in the said record of rights the R.S. Case No. 4 of 1983-84 was noted which was for distribution and/or for settlement of the same to the landless persons of the locality. Accordingly, it was contended that the settlement of the disputed lands by granting pattas in their favour was made lawfully and the petitioners are not entitled to any relief whatsoever in this writ petition. 5. Upon perusal of the entire records relating to the B.R. Case No. 54 of 1997 in the name of Krishna Chandra Roy it appears that though the said proceeding was initiated by an order dated 21st September, 1967 but in fact the said proceeding was not proceeded thereafter since 30th January, 1968. However, the said proceeding was re-opened by an order dated 6th July, 1983 when said Krishna Chandra Roy had died. Notices of the said proceeding however were served upon the heirs of said Krishna Chandra Roy which includes said Balaram Roy. The records of the said B.R. Case further reveal that said Krishna Chandra Roy held in all 38.18 acres of agricultural lands of which 15.16 acres of lands were transferred by him in favour of his heirs and legal representatives during the mischief period as prescribed under section 5A of the West Bengal Estate Acquisition Act, 1953. Accordingly, in the said B.R. Case two schedules of lands were prepared A schedule comprised of the lands held by Krishna Chandra Roy and the B schedule comprised of 15.16 acres of lands as above which were transferred by said Krishna Chandra Roy during the mischief period. The said B schedule contained the disputed lands comprised in plot no. 3451 measuring 4.16 decimals of lands. The said B schedule contained the disputed lands comprised in plot no. 3451 measuring 4.16 decimals of lands. A proceeding under section 5A of the said Act being case no. 2 of 1967 was started and was disposed of by an order dated 9.11.1983 by holding that the transfers of the said lands by said Krishna Chandra Roy were not bona fide. On the basis of such determination in the said 5A case the Revenue Officer concerned on the selfsame day namely, on 9.11.1983 disposed of the said B.R. Case No. 54 of 1967 by directing the vesting of the entire B schedule lands which were transferred during the mischief period and by allowing the A schedule lands measuring 23.02 acres of lands to be retained in the ceiling of said Krishna Chandra Roy. The Revenue Officer concerned was of the opinion that the ex-intermediary Krishna Chandra Roy was not entitled to retain any land of B schedule inasmuch as the same were declared as under non-bona fide transfer under section 5A of the said Act. Accordingly, the balance 23.02 acres of lands which were marked in A schedule were allowed to be retained in the said proceeding. 6. The records as produced in course of hearing of this writ petition do not however reveal that the said 5A proceeding was disposed of by giving an opportunity of hearing either to the said Mondals to whom the land was transferred by Balaram Roy in the year 1959 and/or to the writ petitioners who purchased the same by Kobalas dated 19.7.1982, 13.1.1983 and 17.5.1983. The aforesaid 5A proceeding was initiated in the year 1967 while Balaram Roy, a transferee during the mischief period sold his right, title and interest in the same to the Mondals as above on 2nd June, 1959. 7. Sub-section (5) of section 5A of the said Act provides that the procedure to be followed in such enquiry shall be such as may be prescribed, provided that no order shall be passed in an enquiry held under this section except after giving the transferor and the transferee an opportunity of being heard. 7. Sub-section (5) of section 5A of the said Act provides that the procedure to be followed in such enquiry shall be such as may be prescribed, provided that no order shall be passed in an enquiry held under this section except after giving the transferor and the transferee an opportunity of being heard. That again Rule 3A of the West Bengal Estates Acquisition Rules, 1954 provides as under:- "Procedure for enquiry under section 5A (1)-The procedure for enquiry under sub-section (1) of section 5A shall be as follows:- (1) Where, in the opinion of the State Government or of any officer in its service to whom its powers under sub-section (1) of section 5A may be delegated, there are prima facie reasons for believing that transfer of any land made by an intermediary between the 5th day of May, 1953 and the date of vesting is not bona fide, the State Government or such officer may record a formal order to that effect. (2) Thereafter the State Government or such officer shall cause to be served on the transferor and the transferee of such land and also on the bargadar, where such land is under the cultivation of a bargadar and such other party as may be found to be interested in or affected by the transfer a copy of such order and a notice requiring them to produce necessary documents and other evidence for providing whether or not the transfer of such land was bona fide and shall specify in such notice a date, time and place for the production of such documents and other evidence and the hearing of the case. (3) Upon hearing the transferor, the transferee, the bargadar and other party referred to in sub-rule (2) as appear at the hearing of the case and considering such documents as may be produced and the evidence, if any, which may be adduced and after making such enquiry, if any, as the State Government or such officer, thinks make an appropriate order. If, however, the transferor, the transferee, the bargadar or other party referred to in sub-rule (2) does not appear on the date and at the time and place fixed in the notice under sub-rule (2) for the production of the documents and evidence and for the hearing of the case on any subsequent date to which the hearing may be adjourned the State Government or such officer, as the case may be, shall be entitled to proceed to hear the case and to make such order ex parte against the non-appearing transferor, transferee, the bargadar or other party." Thus, proviso to sub-section (5) of section 5A read with Rule 3A of the said Rules clearly mandates that the other party as may be found to be interested in or affected by the transfer made during the mischief period shall be given hearing in the proceeding for the purpose of determination as to wheather the same was bona fide or not. In this particular case, though the Mondals acquired interest in the disputed lands by purchases in the year 1969 but it does not appear that the said Mondals were served with the notice of the proceeding under 5A of the said Act which was initiated long thereafter in the year 1967. It also does not appear that the said Mondals were given any opportunity of hearing in the said proceeding even while their names were mutated in the rent rolls on the basis of their purchases made in the year 1959. Thus the said proceeding under section 5A of the said Act was proceeded with and disposed of with full knowledge of the said Mondals as transferees and behind their back and therefore in absolute disregard to the statutory provisions prescribed therefor. The order passed in the 5A proceeding declaring transfer made in favour of Balaram Roy, the transferor of the disputed lands in the year 1959, cannot therefore in any way bind the said Mondals who purchased the same from said Balaram Roy long before the said proceeding was initiated and had no notice of the same. Consequently the same cannot also bind the writ petitioner who again acquired right, title and interest in the disputed lands by virtue of their purchases as above from the said Mondals. 8. Consequently the same cannot also bind the writ petitioner who again acquired right, title and interest in the disputed lands by virtue of their purchases as above from the said Mondals. 8. Besides, as above the order of vesting of the disputed lands, including the lands transferred by Krishna Chandra Roy during the mischief period, made in the aforesaid big raiyats proceeding again cannot be sustained inasmuch as sub-section (2) of section 5A provides that if after an enquiry the State Government finds that such transfer was not bona fide, it shall make an order to that affect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made; provided that, subject to such cancellation, nothing in the sub-section shall be deemed to affect any rights which the transferor or the transferee may otherwise have against each other. The implication of the said sub-section (2) read with the said proviso is that if a transfer made during the mischief period is held to be not bona fide in an enquiry under section 5A of the said Act then the same shall not be treated as cancelled vis-a-vis the transferor and the transferee but it shall stand cancelled for the purpose of the provisions of the West Bengal Estate Acquisition Act, 1953 and more particularly for the purpose of determination of the ceiling of lands of the transferor on the date of vesting. In other words, for the application of the provision of West Bengal Estates Acquisition Act, 1953 in the case of such a non-bona fide transfer it will be deemed as if such transfer which was made during the mischief period was not held. The resultant effect of the said provisions would be that for the purpose of determination of the ceiling of the lands of the transferor, the lands so transferred during the mischief period would be taken into his account as if the same were not transferred. Thus, in substance the lands so transferred during the mischief period and are held to be not bona fide transfers shall be deemed to be the lands of transferor on the date of vesting. Thus, in substance the lands so transferred during the mischief period and are held to be not bona fide transfers shall be deemed to be the lands of transferor on the date of vesting. If that be so, then the transferor will have every right to retain any or all of the lands so transferred during the mischief period in a proceeding for determination of the ceiling of his lands under section 6 of the said Act. Therefore, under the provisions of the West Bengal Estates Acquisition Act, 1953 and in view of the discussions as above there is no scope to hold the lands which were transferred during the mischief period and where such transfers were held to be non-bona fide transfers in a proceeding under section 5A of the said Act would vest to the State automatically and consequently upon such determination under section 5A of the said Act. Thus the lands so transferred during the mischief period would also be retainable like all other lands of the transferor under the provisions of the said Act. The transferor has therefore the every right to retain the same to further protect the interest of his transferee in exercise of his right to retain the lands as per the ceiling limit prescribed under the said Act. Therefore, the decision of the Revenue Officer concerned made in the aforesaid B.R. Case No. 54 of 1967 for vesting of all the lands including the disputed lands transferred by the big raiyat during the mischief period, to the State Government as because the transfers so made were held to be not bona fide, was in direct conflict with the provisions of the said Act. The said order of vesting is therefore not tenable in law. 9. In all these views the order of vesting of the disputed lands cannot be sustained in law. The concerned authority was empowered to settle and/or distribute amongst the landless persons only those lands which have vested to the State Government and it had no authority whatsoever to distribute and/or settle any land which had not vested to the State Government. Again vesting of lands in the State Government must necessarily be in compliance with the provisions of law and not otherwise. Again vesting of lands in the State Government must necessarily be in compliance with the provisions of law and not otherwise. The order of vesting, if any which did not conform to the provisions of law and/or procedure prescribed under the law, cannot have any effect in the eye of law and, therefore, the purported action for settlement on the basis thereof cannot also have any legality and/or validity in the eye of law. The authority concerned cannot have any power to settle and/or distribute any lands in the absence of a valid and legal order of vesting of the same. 10. Thus, the purported order of vesting of the disputed lands having no validity in the eye of law, the settlement of the same amongst the respondent nos. 8 to 28 was beyond the competence of the authority concerned. No doubt the provisions of section 49 (2) of the West Bengal Land Reforms Act, 1955 provides for annulment of the settlement of the lands which was made by mistake or obtained under any provisions of said section by practice of fraud, misrepresentation or otherwise. But this is not a case where settlements were made by mistake or obtained by practice of fraud or misrepresentation. On the contrary, the settlements in favour of the respondent nos. 8 to 28 by the authority concerned, in view of the findings as above were absolutely unlawful. Since this writ petition was heard in presence of the said respondents and in view of the findings as above no useful purpose will be served if the respondents are further directed to annul the settlements by initiating proceeding under section 49(2) of the said Act. This writ petition is accordingly allowed. The Rule is made absolute. The settlements made by the authority concerned in respect of the disputed lands in favour of the respondent nos. 8 to 28 shall stand cancelled. Writ petition allowed.