Judgment Ajay Nath Ray, J.: This is a reference made to me by an order dated 22nd February, 1999 of the Hon'ble Acting Chief Justice S.K. Mookherjee (as His Lordship then was). The reference had been earlier sent to the Hon'ble Mr. Justice B.P. Banerjee (as His Lordship then was) by an order dated 11th February, 1998 passed by the then Hon'ble Chief Justice Prabha Shankor Mishra of this Hon'ble Court. 2. That order of 11th February, 1998 was consequential upon a difference of opinion jointly recorded by the Hon'ble Mr. Justice S.K. Mookherjee and the Hon'ble Mr. Justice D.P. Sarkar-II (as Their Lordship then were). The order of 6th February, 1998 was as follows:- "Since we have differed on the question of interpretation of the relevant statutory provisions, the records may be placed before the Hon'ble Chief Justice for an appropriate order of reference." 3. On the same date, i.e., 6.2.98 Their Lordships delivered their differing judgments. Those judgments were delivered in a Mandamus Appeal filed by the clients of Mr. Mukherjee from a judgment and order of P.K. Samanta, J., delivered by His Lordship on 29th September, 1997. 4. The writ petitioners before Samanta, J. were Mr. Mukherjee's clients. They lost before His Lordship and the writ petition failed in the first Court. S. K. Mookherjee, J. was of the opinion that the appeal should fail. Sarkar II, J. however, opined that the appeal should be allowed and that there should be a direction to the District Collector to hear the Reference Case afresh, filed against the order dated 10.5.95. 5. His Lordship also set aside the order dated 28.8.95 passed by the Additional District Magistrate (Land Reforms), in brief A.D.M. (L.R.). 6. It appears, however, that the order dated 28.8.95 was passed by the A.D.M. & D.L. & L.R.O., Nadia, i.e., Additional District Magistrate and District Land and Land Reforms Officer, Nadia. 7. The order dated 28.8.95 formed the central subject-matter of dispute in the writ petition before Samanta, J. which His Lordship also specifically observed. 8. How the order came about be understood so that the difference in opinion might be appreciated. 9. The clients of Mr. Mukherjee claimed to be persons entitled to be beneficiaries by reason of the operation of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975. 10. 8. How the order came about be understood so that the difference in opinion might be appreciated. 9. The clients of Mr. Mukherjee claimed to be persons entitled to be beneficiaries by reason of the operation of the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975. 10. Under this Act of 1975, occupiers have been defined in the explanation of section 2 and roughly speaking they are agricultural labourers, artisans or fishermen; they might be tenants, licensees or trespassers; if the land in possession of the defined occupier does not exceed .0334 hectare, then such land, by reason of section 4 of the said Act shall stand acquired by the State Government and vest absolutely in favour of the occupier. If the land or area in occupation is more only the above area mentioned will vest. Section 4 of the said Act is set out below- "4. Acquisition of lands for occupiers.- Where an occupier has been in possession of any land on the 26th clay of June, 1975 then- (a) if the land in his possession does not exceed .0334 hectare, such land, and (b) if the land in his possession exceeds .0334 hectare, so much of such land does not exceed .0334 hectare, shall stand acquired by the State Government and shall thereupon stand transferred to and vest absolutely in favour of such occupier." One Talapatra originally claimed to be the occupier and he filed an application before the authorities for order and action accepting him as the occupier in whose favour the land in question situated at Nakashipara, Krishnanagar, Nadia has vested. 11. By certain orders passed in or about July 1992, Talapatra's application was accepted by the Revenue Officer but for all our purposes, four heirs and legal representatives of Talapatra are to be taken as substituting him. 12. The owners of the land, against whom the vesting would be operative, have been represented before me by Mr. Das. Mr. Das's clients made a reference under section 9 of the said Act of 1975. Their main contention was that the order of vesting had been passed without proper notice to the owners. Section 9 of the said Act is set out below:" 9. Das. Mr. Das's clients made a reference under section 9 of the said Act of 1975. Their main contention was that the order of vesting had been passed without proper notice to the owners. Section 9 of the said Act is set out below:" 9. Settlement of disputes.- (1) If there is any dispute on the question as to whether a land has vested in an occupier under the provisions of section 4, the matter shall be referred to the Collector, whose decision thereon shall be final. (2) The manner in which the Collector shall decide the dispute shall be such as may be prescribed." 13. The matter first went before the A.D.M. & D.L. & L.R.O., Nadia. By an order dated 4.11.94, when both parties were present, he ordered that the case records be sent to the S.D.L. & L.R.O, Krishnanagar, i.e., Sub-Divisional Land and Land Reforms Officer, Krishnanagar. The case was then taken up by the S.D.L. & L.R.O. By an order dated 4.11.94, he state that "the appeal succeeds". He also placed quite some importance on whether the dwelling house on the land in question had been constructed by the occupier himself. 14. However, on 6.3.95, he in his turn, directed that the case records be "sent back to the B.L. & L.R.O., Nakashipara with a direction for passing reasoned order in accordance with law." Then the case was taken up by the B.L. & L.R.O., i.e., Block Land & Land Reforms Officer. 15. In the order date 10.5.95, the B.L. & L.R.O., gave a lengthy reasoning. He described the proceeding as a proceeding under section 9 of the said Act. Again and again, he mentioned section 9 in his orders. He described himself as Collector under section 9 of the W.B. H/S. Act, 1975. He also headed the order as on the order dated 29.3.95 as "remand". 16. The B.L. & L.R.O. by the said order of 10.5.95 stated that the appeal is allowed on contest and that the order of the Revenue Officer in Proceeding No. 3436 of 1992 is set aside. 17. The clients of Mr. Mukherjee had instituted an earlier writ petition, as they were aggrieved by the order of 10.5.95. The writ petition was disposed of at the motion stage by N.K. Mitra, J. (as His Lordship then was) and the order dated 17.7.95 passed by His Lordship is as follows:"17.7.95. 17. The clients of Mr. Mukherjee had instituted an earlier writ petition, as they were aggrieved by the order of 10.5.95. The writ petition was disposed of at the motion stage by N.K. Mitra, J. (as His Lordship then was) and the order dated 17.7.95 passed by His Lordship is as follows:"17.7.95. Since an appeal lies against the impugned order under the statute, the petitioner is to prefer such an appeal and so far as this Court is concerned, I am not inclined to interfere with the matter. With this observation, the Civil Order is dismissed." 18. Then came the impugned order dated 28.8.95 passed by the A.D.M. & D.L. & L.R.O., Nadia and that order is set out below: "Whereas it appears that Smt. Jyotsna Talapatra w/o Late Nirmal Ch. Talapatra and Ors. of Jagadanandapur P.S. Nakashipara have submitted a memo of reference under section 9 of the W.B. Acquisition of Homestead Act, 1975 against an order dt. 10.5.95 passed by Collector under section 9 of W.B.H.S. Act in another reference case being No. 2/93 of 1995 arising out of original case No. 3436 of 1992, and, whereas it also appears that the subject matter and contesting parties are same the only difference being applicants of the instant case were the respondents in Case No. 2/93 of 1995 in both the reference cases, and, whereas any dispute once settled as per provisions laid down under section 9 of the W.B. Acquisition of Homested Act, 1975 is final, and whereas it is against the principles of res judicata. Hence, the memo of reference is not accepted." 19. Then the appeal from the order of N.K. Mitra, J. was disposed of by the Division Bench presided over by B.P. Banerjee, J. on 4.9.95 when the Bench observed that Their Lordships did not find any reason to interfere with the order passed by the learned Trial Judge. 20. It is to be noted that the order of N.K. Mitra, J. was not considered by the A.D.M. & D.L. & L.R.O., Nadia when he passed the order on 28.8.95 and the order of 28.8.95 was not brought to the notice of the Division Bench on 4.9.95. 21. If the order of 10.5.95 passed by the B.L. & L.R.O. is an order under section 9 of the 1975 Act, as the order states on its face again and again, them Mr. 21. If the order of 10.5.95 passed by the B.L. & L.R.O. is an order under section 9 of the 1975 Act, as the order states on its face again and again, them Mr. Mukherjee's clients are out of Court. 22. Both Samanta, J. and Mookherjee, J., as I most respectfully read Their Lordships judgments, have been greadly persuaded by the fact that the B.L. & L.R.O., although not a Collector, is given power to act as a Collector under section 9 of the said Act. 23. Mr. Das most helpfully drew my attention to the notification in this regard, which is dated 16.7.85 bearing No. 229 RH issued by order of the Governor under the hand of J.K. Bandhu, Dy. Secretary to the Government of West Bengal. That notification is set out below:- "Government of West Bengal Panchayat and Community Dev. (C.D.) Department Raj Bhaban No. 229-RH Calcutta, the 16th July, 1985. Notification In exercise of the power conferred by clause (c) of section 2 of the West Bengal Acquisition of Homested Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 (West Bengal Act XLVII of 1975), and in continuation of this department notification Nos, 455-RH, dated the 29th September, 1980 and 430-RH, dated the 29th December, 1984, the Governor is further pleased hereby to appoint all the District Land and Land Reforms Officers and Settlement Officers, Deputy District Land and Land Reforms Officers, Sub-divisional Land and Land Reforms Officers, Block Land & Land Reforms Officers and Member of the Subordinate Land Revenue Service, Grade I to discharge within their respective jurisdictions any of the function of a Collector under the said Act. By order of the Governor, J.K. Bandhu, Dy. Secretary to the Government of West Bengal." 24. Their Lordships have opined that as the decision was by a Collector within the meaning of section 9 of the said Act, that was a final decision and no further reference under section 9 of the said Act would lie. The A.D.M. & D.L. & L.RO. has held to the same effect in his order of 28.8.95. 25. Sarkar- II, J., en the other hand, opined that the order of 10.5.95 passed by the B.L. & L.RO. was under section 4 of the said Act. Thus, His Lordship was of the opinion that a section 9 reference there from should be heard on merits once again by a higher authority. 25. Sarkar- II, J., en the other hand, opined that the order of 10.5.95 passed by the B.L. & L.RO. was under section 4 of the said Act. Thus, His Lordship was of the opinion that a section 9 reference there from should be heard on merits once again by a higher authority. 26. We were would to hold that the order of 10.5.95 is an order under section 9 without recourse to an appeal (I clarify that a reference under section 9 is constantly referred to as an appeal), then I would be robbing Mitra, J.'s order of all content and meaning. 27. I would in that event further make the entire basis of the Division Bench affirmatory order dated 4.9.95 disappear. 28. The writ of Mr. Mukherjee's clients on the earlier occasion failed because the trial court and the Division Bench held that an alternative remedy by way of an appeal in the department was possible. 29. I would, therefore, respectfully differ with (both Samanta, J. and) Mookherjee, J.; I would add that although the B.L. & L.R.O. can be a Collector settling a dispute on a reference under section 9, yet just because the B.L. & L.RO. has passed an order, that does not necessarily make his order an order under section 9. 30. An order by the B.L. & L.RO. might be an order under section 4 as well as is the case herein. That is why, Mr. Mitra, J. and the Division Bench held that an appeal would lie therefrom. No order or application is mentioned expressly in section 4 of the Act. It is possible for any authority to pass an order under section 4, it might be the Block Land & Land Reforms Officer or it might be the Revenue Officer. 31. All that is necessary for exercise of revisional jurisdiction under section 9, which is called an appeal, is the existence of a dispute between the owner and the occupier. Such dispute is must often given rise to by an order passed under section 4. Such order was passed once in July, 1992. It get set aside on an appeal or a section 9 reference. The setting aside of the 1992 order was complete when the appeal was expressly allowed by the S.D.L. & L.R.O. sometime on or about 4.11.94. Such dispute is must often given rise to by an order passed under section 4. Such order was passed once in July, 1992. It get set aside on an appeal or a section 9 reference. The setting aside of the 1992 order was complete when the appeal was expressly allowed by the S.D.L. & L.R.O. sometime on or about 4.11.94. The remand of the case to the B.L. & L.R.O. thereafter could only be for a first decision under section 4 of the Act and the B.L. & L.R.O. could only record that the order of July, 1992 has been setaside. When he said that the order of July, 1992 is set aside, he was merely repeating what had already been said by the S.D.L. & L.R.O. on 4.11.94 when the appeal was allowed to succeed. 32. Chief Justice Mookherjee has opined that as the B.L. & L.R.O. is in the position of a Collector, an appeal from his order cannot be heard by another person of a higher rank, who is also a Collector because that would necessitate importing words into the statute. With the greatest of respect, I am unable to agree. If a person, who is a deemed Collector passes an order under section 4, then a section 9 reference has to be heard by another Collector and it would be reasonable if it were to be held that such later authority should be higher in rank than the person, who passed the earlier order. . 33. In this case, therefore, the best course would be to follow Sarkar, J.'s formula and I respectfully agree with His Lordship. The orders passed upto 10.5.95 shall remain on record as those have been approved at least indirectly as to their pro tante legality by even the Division Bench of our Court. However, this does not mean that the section 9 reference from the order of 10.5.95 must also go in favour of Mr. Das's clients. 34. The authority under section 9 shall decide in accordance with law and give decision either in favour of Mr. Mukherjee's clients or in favour of Mr. Das's clients, as might appear to him just and in accordance with the provisions of the 1975 Act. 35. Das's clients. 34. The authority under section 9 shall decide in accordance with law and give decision either in favour of Mr. Mukherjee's clients or in favour of Mr. Das's clients, as might appear to him just and in accordance with the provisions of the 1975 Act. 35. At the suggestion of the learned counsel, I have taken note of the fact that the District Collector is the District Magistrate, who usually does not hear a section 9 reference. Thus, the order dated 28.8.95 is set aside. The matter shall be decided afresh by the Additional District Magistrate and District Land & Land Reforms Officer deciding whether the 10.5.95 order in favour of Mr. Das's clients should remain or be reversed. 36. In taking such decision, the discretion of the authority to proceed in accordance with law shall be absolutely unfettered. 37. In case, the designated authority is now only D.L. & L.R.O. and the A.D.M. is a separate authority, then and in that event, the reference under section 9 from the order dated 10.5.95 shall be decided as aforesaid by the D.L. & L.R.O. Such decision be given within a period of five months from date hereof. 38. The suit filed by Mr. Mukherjee's clients shall await the decision as to vesting or not under the 1975 Act as the suit filed in the same month on the 19th as the decision given by the Division Bench in the earlier writ matter must abide by the ownership or vesting, as is still to be decided under the 1975 Act in accordance with law, and this order. 39. The Reference Case is thus disposed of. 40. Let urgent xerox certified copies of this order, if applied for, be supplied to the respective parties within three weeks from the date of making Such application. Reference case disposed of