Ambujakhya Mukherjee vs The State

P.B. Mukharji, J.—This is a Rule taken out by the Petitioner under Article 227 of the Constitution. It was heard along with 14 other Rules because it was represented to us from the Bar that they all involved certain main but common questions of law, and that on a decision on these Rules depend hundreds of applications which are pending in this Court on the points involved, and also before the Government.

This Rule, in common with the other Rules, raises questions of Constitutional validity, interpretation and meaning of Section 5A of the historic and controversial West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) which marks the end of the feudal age of landlords and zamindars of this State.

The facts giving rise to this Rule may first be stated briefly. By a deed dated December 30, 1953 the father transferred some of his properties to his sons. The deed is described as a deed of settlement. Proceedings were started u/s 5A of the West Bengal Estates Acquisition Act for determining whether these transfers were bona fide or not. The Special Officer came to the conclusion that it was not a bona fide transfer and u/s 5A(2) of the Act cancelled such transfers. Both the transferor and the transferees, i.e., the father and the sons jointly appealed against that decision u/s 5A(6) of the Act to the Special Judge. The Special Judge dismissed the appeals. The facts found by him are (1) that the document was executed on December 30, 1953 and, therefore, came within the time indicated u/s 5A(1) of the Act, i.e., between May 5, 1953 and the date of vesting, (2) that the document was executed in favour of persons who came within the relations mentioned in Section 5A(7)(ii) and (3) that the aggregate area of land owned by the intermediary exceeded 20 acres in extent with respect to non-agricultural land and 25 acres in extent with respect to agricultural land.

In respect of the facts found, we do not conceive our jurisdiction under Article 227 of the Constitution to interfere with such findings of fact in the present case. The only question raised in the appeal before the Special Judge was that the document in question was neither a sale nor a mortgage nor an exchange nor a gift but was only a deed of settlement and was therefore not a "transfer" within the meaning of the word "transfer" u/s 5A(7)(iii) of the Act. In other words, the only point raised in the appeal before the Special Judge was that this deed was neither a sale nor a mortgage nor an exchange nor a gift. In support of that contention reliance was placed on Section 2(24) of the Indian Stamp Act defining a "settlement". The Special Judge came to the conclusion and finding that this transfer was "a deed of gift though styled as a deed of settlement." We agree with that finding and conclusion of the Special Judge.

We shall state our reasons very briefly on this point, which was the only point argued by the Petitioner in the appeal before the Special Judge, before proceeding to discuss other questions. The Stamp Act cannot be of any great assistance to the Petitioner on the true meaning and interpretation of the word "transfer". Whether a transfer is a deed of settlement or a gift is to be determined with reference to the substance of the transaction in question. No doubt different rates under the Stamp Act are indicated for gifts and deeds of settlement; but they in our view are not decisive in determining the real question and nature of the transfer. The Court is never concluded by the apparent tenor or description of the instrument or by stamp put on it but is always free to decide this point according to the real nature and substance of the transfer involved. This is well settled by a long series of leading decisions like the Inland Revenue v. Oliver [1909] A.C. 427 and Inland Revenue Commissioners v. Glasgow and South Western Rly. Co. [1887] 12 A.C. 315. It is to be emphasised that the stamp duty is really and fundamentally a duty on the instrument and not on the transaction itself. See the observation of the Privy Council in Minister of Stamps v. Towned [1909] A.C. 633, 639. What we are concerned in this case is not about the duty paid on the instrument as such but on the real nature of the transfer involved in the transaction.

The facts and circumstances as much as the construction of the language of the deed show that this apparent deed of settlement is in reality, effect and in substance quite clearly and irresistibly a deed of gift. We have carefully considered the terms of the deed. In the first place, no doubt it is described in Bengali as "Nirupan-Patra" but the words in the habendum and operative parts of the deed clearly show that they expressly, obviously and unequivocally make specific gifts of specific properties to individual sons named therein. Secondly, reference is made in the deed to the desire to settle a family dispute to avoid quarrels between sons after the father''s death, but it is found as a fact that at the time of the deed there was no family dispute between the parties at all and no question of resolving any dispute could have arisen at that time. Thirdly, the transferor had sons and they were entitled to get properties according to their legal shares under succession and inheritance and there was no necessity for executing a deed of settlement in their favour. Fourthly, it is found as a fact that even after the execution of the document some sons were born to the transferor. This goes to show as a fact that the apparent recital in the deed that the document was executed to resolve family dispute was not correct. Finally, it was also found as a fact that a considerable portion of the property was retained by the transferor himself and this was not included within the deed of settlement. This goes to show again that this was not really a deed of settlement to resolve family dispute, as alleged.

For these reasons we hold that the transfer in this case is a gift, and comes within Section 5A(7)(iii) of the Act.

Here in this Court before us the Petitioners have set out as many as 17 grounds in paragraph 14 of the petition. Before discussing the various points of contention argued before us, we prefer to dispose of some more preliminary points of objection.

The first point of objection taken by the Petitioner is that the State Government formed no opinion as required by the provisions of Section 5A(1) and, therefore, the entire proceeding is void ab initiv. The point of this contention is that u/s 5A(1) of the Act the State Government must be, at the outset, of the opinion that there are prima facie reasons for believing that the transfer was not bona fide. It is contended that the State Government does not in this case express this opinion that there are prima facie reasons for believing this particular transfer to be not bona fide. The point in this form was never taken before the Enquiring Officer. The only relevant ground here is ground No. 7 but then it is. again not on this point, but on the point that opinion cannot be delegated, and to which the answer given on behalf of the Government is that opinion is an administrative act and cannot be reviewed, on the basis of two decisions of the Supreme Court on Industrial Disputes Act, reported as State of Madras Vs. C.P. Sarathy and Another, and Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, . The main inspiration of the present argument before us is based on the actual language of the order using the words "the transfer may not be bona fide". It is, therefore, said that the words used are "may not be bona fide" and they show that the State Government was in doubt whether it was bona fide or not. We are unable to construe the words "may not be bona fide" in this context of the present case as meaning that there was any doubt on the point whether there were prima facie reasons for believing the transfer not to be bona fide. On the contrary, such a prima facie opinion cannot say positively that it is not bona fide. It can only be a tentative opinion and that tentative character of the opinion is quite well expressed in our view by the words that the transfer in this case "may not be bona fide".

The Petitioner relied on the decision of the learned single Judge Purushottam Chatterjee, J. in Civil Rules No. 3700-3733 of 1960 and in the matter of Miscellaneous Appeals Nos. 379 of 1957, etc. and in the matter of Dilip Kumar Misra v. The State of West Bengal Unreported (delivered on June 10, 1963). The particular passage in that judgment on which reliance was placed by the Petitioners is as follows:

Mr. Roy on behalf of the Petitioners has urged first that in all these cases the authorised officer of the State Government has found that the transfer may not be bona fide. If the officer has his doubts about it, it is better that he should not trouble others as the law says that when the ''State Govt.'' has'' prima facie reasons to believe that such a transfer was not bona fide, it is only then that it can start proceedings. Therefore the orders by which the authorities believed that they might not have been bona fide but still continued the proceedings are set aside.

We are unable to accept that view because we are of the opinion that all that is necessary u/s 5A(1) of the Act is an opinion that "there are prima facie reasons for believing that such transfer was not bona fide" and that requirement is met sufficiently when the officer says that he is of the opinion that the transfer may not be bona fide. It is necessary to point out here that the actual language of the statute is first "prima facie reasons" and then "for believing that such transfer was not bona fide". "Prima facie reasons" and "believing" are words indicative of the tentative character of the opinion and not a conclusive and definite opinion. The language, therefore, of the order in question that the transfer "may not be bona fide" is in that view unexceptionable. There can be no conclusive proof or opinion one way or the other at this stage. Indeed the argument on this point fails to notice the whole relevant context of the order by separately taking the words "may not be bona fide". These words do not stand separate and I quote below the actual order which runs as follows:

Perused the relevant records and connected papers. I am of opinion that there are prima facie reasons for believing that the transfer may not be bona fide.

It, therefore, expressly uses the words "I am of opinion" and therefore the order abundantly satisfies the requirement of Section 5A(i) of the Act.

A reference may also be made in this connection to the observation that I made in the case of Haranath Ghosh v. State of West Bengal and Ors. (1962) 67 C.W.N. 129 (133). We are, therefore, unable to uphold this contention of the Petitioner.

It is then urged as a ground by the Petitioner that there could be no delegation by the State Government of the power and function to form the opinion that there are prima facie reasons for believing that the transfer was not bona fide. It is contended that the State Government has no jurisdiction to delegate its authority to form such opinion to the Revenue Officer and the proceedings started by the Revenue Officer on such delegated authority are ultra vires the provisions of the Act and as such are void. Some relevant observations on this point also might be seen in my decision in Haranath Ghosh v. State of West Bengal and Ors. Ibid at p. 137. But those observations do not dispose of all the arguments now made in this case on this point and I shall deal with such arguments now. Section 5A(4) of the Act expressly says-

The State Government may delegate all or any of its powers under this section to such officers in its service as it may deem fit.

"All or any of its powers" under this section appear to include the power to form an opinion u/s 5A(1). Section 5A(4) does not introduce any limitation for delegation of all or any of its powers under this section except, of course, in the sense that it must be to such officer as the State Government may deem fit. It does not say that power u/s 5A(1) cannot be delegated whereas other powers of enquiry in the following Sub-sections of Section 5A can be delegated. Section 5A(4) makes no such distinction or difference or discrimination between the different powers under different Sub-sections of Section 5A. Indeed, the power u/s 5A is really one and that of enquiry and the opinion in Section 5A(1) is a starting condition for the exercise of that power and in aid thereof. Rule 3(a)(1) of the West Bengal Estates Acquisition Rules, 1954, expressly recognises this delegation of the powers or function to form an opinion by saying-"or of any officer in its service to whom its powers under Sub-section (1) of Section 5A may be delegated". Realising this difficulty it is contended by Mr. Dutta, on behalf of the Petitioner in this case, that the duty to form an opinion that there are prima facie reasons for believing that the transfer is not bona fide u/s 5A(l), is not at all a "power" within the meaning of that word in Section 5A(4) of the Act and, therefore, Rule 3(a)(1), just quoted is ultra vires the Act. Formation of opinion u/s 5A(1) of the Act is argued to be a function and duty and not a "power". This argument is ingenious but not, in our view, sound. Section 5A must be read as a whole. Its marginal note indicates that it is "Restriction on certain transfers". It provides when and how an enquiry to question such transfers is to be made and how such enquiries are to be determined. It begins with Sub-section (1) which gives the conditions for starting an enquiry. It reads as follows:

The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 5th day of May 1953, and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was not bona fide.

A broad analysis of this Sub-section shows clearly that the enquiry may be made only after the date of vesting; secondly, it is the State Government that may start the enquiry; thirdly, the enquiry is limited to the case of transfer of any land by an intermediary ; fourthly, such transfers must be within the specified period of time, between May 5, 1953, and the date of the vesting; lastly, it is to have an opinion that there are prima facie reasons for believing that such transfer is not bona fide. When all these conditions are satisfied or are present, the enquiry starts.

The enquiry may result in coming to the conclusion that the transfer was not bona fide in which event the State Government''s duty is to make an order that it is not bona fide and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to be made. That is provided in Sub-section (2) and this of course is without affecting any rights inter se between the transferor and the transferee, subject no doubt to such cancellation. This is made clear in proviso (2) of Sub-section (2) of Section 5A. The next Sub-section (3) of Section 5A provides for a case when the State Government finds that a transfer is bona fide and then it makes an order to that effect. This Sub-section (3) goes on to provide for certain consequences stated there to which we shall have to make a detailed reference later on in the judgment.

Immediately thereafter follows Sub-section (4) for delegation already quoted above. The words "powers under this section" in Section 5A(4) therefore in that particular context must include all that is stated in Sub-Sections 1, 2 and 3 of Section 5A. This opinion is part of the entire powers of enquiry. Indeed, it is the very ammunition of that "power" and without which it does not fire. A "power" can be as much a "function" or "duty" and it is nonetheless so because it involves a function or duty. It is the State Government which has the "power" to form an opinion u/s 5A(1) and nobody else has the "power". The State Government must also, from the practical point of view, act through its officers and therefore the opinion of the State Government u/s 5A(1) must necessarily be through the process of the instrumentality of an officer or some personnel of the Government. From the practical point of view it is difficult to see how else the State Government can form an opinion except through its officers or persons authorised by it.

"Opinion" no doubt is individual but the opinion of an institution, such as the State, although expressed to be in the name of the institution or its organ, must in the ultimate analysis be of individual or individuals authorised by the institution.

Here the argument breaks off into subtler grounds under the Constitution. Article 154 of the Constitution is invoked to show that the executive power of the State is vested in the Governor and can only be exercised by him directly or through an officer subordinate to him in accordance with the Constitution. It is, therefore, argued that there can be no delegation of power u/s 5A(4) of the West Bengal Estates Acquisition Act. This argument is seductive but is misleading. Article 154 of the Constitution deals with executive power and its vesting. Section 5A of the Act, its purpose and procedure deal with quasi-judicial power. The procedure for these enquiries, containing in Sub-section (5) of Section 5A, provision for giving opportunity to the transferor and the transferee of being heard and granting Enquiry Officers all the powers of a civil Court for the purpose of taking evidence, enforcing the attendance of witnesses and compelling the production of documents, read with the provision in Sub-section (6) of Section 5A for appeals to a Special Judge who is or has been a District Judge or an Additional District Judge and who is to dispose of such appeal according to the prescribed procedure, suggest beyond doubt that the power in Section 5A of the Act is at least a quasi-judicial power, and is not executive power at all. Taking the whole and a total view of Section 5A we are of the opinion that the powers indicated there are quasi-judicial and therefore Article 154 of the Constitution has no application. Even if Article 154 of the Constitution could be stretched to cover the power u/s 5A(1) of the Act, it is difficult to see how that will materially help the Petitioner in this case because even Article 154 of the Constitution recognises that such executive power of the State shall be exercised by the Governor either directly or through officer subordinate to him in accordance with the Constitution. Hence delegation u/s 5A(4) will be in conformity with the mandate of Article 154, because such delegate officers will be exercising that power, as "officer subordinate to" to the Governor, within the meaning of that Article.

For these reasons we are unable to uphold this objection of the Petitioner and we hold that the function or power of the State Government u/s 5A(1) can be delegated u/s 5A(4) of the Act, whether considered as a power or considered as a function, and we hold that such delegation is neither prohibited by the Act nor by the Constitution, and therefore, Rule 3(a) of the West Bengal Estates Acquisition Rules in recognising that delegation is not ultra vires the section of the Act.

The next important ground urged by the Petitioner is that the provisions of Section 5A conferred upon the State the function of a Court of law and/or a judicial tribunal and therefore the same is unconstitutional and void. This raises a very important and significant question of constitutional law. The point of this argument is that Section 5A invades the judicial power of the Courts under the Constitution and encroaches upon such judicial powers. It is said that this particular section turns the Governor virtually into a Court of law. A reference again is made to Article 154 of the Constitution to show that the whole of the executive power of the State is vested in the Governor. It is then said that the State Government means the Governor. Reference in this connection is also made to the relevant clauses in both the Central and State General Clauses Act. On the basis of that assumption it is argued by Mr. Dutta with considerable force and ability that the State Government in Section 5A of the West Bengal Estates Acquisition Act means the Governor and the Governor being vested with only the executive power must be impliedly held to have excluded from acquiring any judicial power or quasi-judicial power. In other words, it is said that the affirmative vesting of executive power in the Governor must imply exclusion of judicial power. It is a kind of implied prohibition that he wants us to draw from the constitutional provision contained in Article 154 of the Constitution. He has also drawn our attention to the decision of the High Court of Australia in the Victorian Stevedoring and General Contracting Company Proprietary Limited v. Dignan 46 Commonwealth Law Reports 73.

The difficulty of applying and adopting these cases and the cases under the American Constitution is that in those Constitutions there is a clear, categorical and express provision vesting judicial power as such. Significantly enough, there is no vesting of judicial powers as such in the Indian Constitution. There is no corresponding Article like Article 154 in respect of the judicial power in the Indian Constitution. The only vesting clause in this connection is Article 235 of the Constitution where it is provided:

the control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court.

That, however, is not vesting of judicial power as such but only of control over district and subordinate Courts, and cannot, therefore, be compared to the analogous provisions where judicial power is expressly vested in the American and Australian Constitutions. There is really no strict and rigid separation of judicial power in the Indian Constitution from the executive and the legislature. Reference in this connection may be made to Article 50 of the Indian Constitution which says:

The State shall take steps to separate the judiciary from the executive in the public services of the State.

This, however, is a directive principle not enforceable by the Courts, but then it is an express recognition of the fact that to begin with there is in the Indian Constitution no separation of the judiciary from the executive in the public services of the State; even then, as it is, Article 50 of the Constitution is far from vesting of judicial power in any particular judicial organ in the State as has been done in the Australian and American Constitutions and in some other Constitutions.

Even the Australian case cited above does not help the Petitioners'' contention and may be said to go against them when the following observations of Gavan Duffy, C.J. and Strake, J. at page 84 of the said report are noticed:

It does not follow that, because the Constitution does not permit the judicial power, of the Commonwealth to be vested in any tribunal other than the High Court and other Federal Courts, therefore, the granting or conferring or regulative powers upon bodies other than Parliament itself is prohibited. Legislative power is very different in character from judicial power: the general authority of the Parliament of the Commonwealth to make laws upon specific subjects at discretion bears no resemblance to the judicial power. Indeed, unless this view is correct, and if there has been a delegation of legislative power, the judgment in the Huddart Parker case and in Dignan''s case overlooked an obvious point and the cases were wrongly decided.

The ordinary principle of statutory construction that if something is expressly granted by the statute then it impliedly excludes what is not expressly granted cannot be uniformly applied as a general proposition without qualification in the interpretation of the Constitution. A written Constitution provides the clear, broad imperatives of the Constitution. To infer negatives by implications by the application of this doctrine will lead, in course of time, to a vast unwritten Constitution, the results of whose implications may greatly impede, overwhelm and contradict the written Constitution of India. It, therefore, cannot be said on a reading and interpretation of Article 154 of the Constitution that because the executive power is expressly vested in the Government, therefore the Constitution of India impliedly excluded the Governor or the executive power of the State from exercising any duties and functions in relation to the judicial powers. This is far from saying that it is a desirable practice. It is not. But then what this Court is considering now is not what is desirable but what is unconstitutional.

Reference on this point may be made to the decision of the Supreme Court in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, . There the learned Chief Justice of India, B.K. Mukherjea, C.J. at page 586 of that report lays down that the executive in India in an appropriate case may be empowered to exercise judicial function in a limited way, and observes as follows:

It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.

The main features of judicial power are well settled. The Attorney General of Australia v. The Queen and the Boiler-makers'' Society of Australia and Ors. [1957] A.C. 288 (314-15), discusses the constitutional aspect leading to Victorian Stevedoring and General Construction Co. Pvt. Ltd. v. Dignan (Supra), case already mentioned. In Labour Relations Board of Saskatchewan v. John East Iron Works Limited [1949] A.C. 134 (P.C.), the Privy Council observed at page 149:

Without attempting to give a comprehensive definition of judicial power, they accept the view that its broad features are accurately stated in that part of the judgment of Griffith C.J. in Huddart, Parker and Co. Proprietary Ltd. v. Moorhead, 8 C.L.R. 330, 357 which was approved by this Board in Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation [1931] A.C. 275. Nor do they doubt, as was pointed out in the latter case, that there are many positive features which are essential to the existence of judicial power, yet by themselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so-called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also. Whether in the present case the power exercised by the Appellant board u/s 5(e) of the Act is a judicial power, their Lordships do not decide.

The Privy Council in this case, however, said that the constitution and the functions of the particular institutions there discussed made it "doubtful whether it was in the strict sense a Court exercising judicial power at all" to lead conclusively to the opinion that it was not a superior district or County Court or a Court analogous thereto.

It is difficult and may be unwise to apply notions drawn from other statutes and other Constitutions when we have special and particular statutory provisions like Section 5A of the West Bengal Estates Acquisition Act, and the Constitution of India containing very specific provisions upon this point. They alone must govern the case. No doubt, Section 5A(5) and Section 5A(6) as well as Section 57A of the Act talk of powers of a Civil Court and procedure analogous to Civil Court in certain aspects. They are not by themselves enough to convert either the Revenue Authority conducting the enquiry u/s 5A or the Appellate Authority u/s 5A(6) into full-fledged regular Courts of ordinary hierarchy. They are authorities and agencies exercising quasi-judicial power and this Court under the constitutional provisions of Articles 226, 227 and 228 certainly has the power to control them in case they infringe the provisions of the statute or the Articles of the Constitution.

An interesting development of this branch of the argument has to be noticed at this stage. It is said in argument that the procedure laid down in Section 5A of the West Bengal Estates Acquisition Act really is an attempt to roll up in one organ the Judge, the prosecutor and the party. The argument is that it is the State Government which initiates the enquiry by coming at first to a prima facie view that the transfer may not be bona fide. Then it is the State Government which again conducts the enquiry. Then it is the State Government again which passes the order whether the transfer is bona fide or not. It is, therefore, said that by some process or other Section 5A of the Act violates the basic principles of natural justice. The argument has attraction, but no substance. The State Government is not responsible for the transfer, which is being investigated u/s 5A of the Act. The State Government is not, therefore, a party to the transfer under enquiry. The transferor and the transferee are engaged in the transfer in full view of the statute announcing that on a particular date the lands are to vest in the Government. Before that date of vesting comes, private transfers are made in many cases obviously with a view to preventing lands vesting in the State. The amendment is, therefore, introduced by Section 5A of the statute to prevent such evasion of statute by authorising State Government to start enquiry only in specific cases of transfers, of particular classes and between particular dates. The officers of the State Government to whom powers are delegated u/s 5A(4) and who have to work according to the elaborate procedure laid down in Section 5A(5) and appeal in Section 5A(6) cannot be said to be the persons who are combining the roles of the prosecutor, Judge and the party. Such an argument is entirely wrong not only on the interpretation of the Act, but also on the scheme provided therein. Although not on similar statute at all, reference in this connection may usefully be made to the observations of Subba Rao, J. of the Supreme Court in Gullapalli Nageswara Rao etc. Vs. The State of Andhra Pradesh and Others, . In the scheme of Section 5A of the Act, I am satisfied that the Revenue Officers and the Appellate Authorities thereunder cannot also be said to be Judges in their own causes.

For these reasons, we are unable to uphold the Petitioners'' contention that Section 5A has conferred upon the State the function of a Court of law or a judicial tribunal and on that ground, unconstitutional and void or that it involves the principles of natural justice.

On behalf of the Petitioners, Mr. Dutta throws another constitutional challenge on Section 5A of the Act. One of his grounds in the petition is that Section 5A(3) discriminates between transfers found on enquiry u/s 5A(3) to be bona fide and transfers against which no proceeding u/s 5A was started. He contends that this is violative of Article 14 of the Constitution. Strictly speaking, although this point arises in some of the rules, it does not arise in this particular case, because the transfer in this case has not been held to be bona fide but is held to be not bona fide and, therefore, has been cancelled. But Mr. Dutta brings it in aid of his argument, because he challenges the constitutional validity of the entire Section 5A of the Act by saying that this being unconstitutional on the ground of Article 14 makes the whole section unconstitutional as no part of the section is severable.

To appreciate his point on this branch of the argument would demand, in the first place, an interpretation of Section 5A(3) of the Act. It provides that in the case where

if after such enquiry the State Government finds that the transfer was bona fide

the State Government shall make an order to that effect that it is bona fide. So far, so good. But it proceeds to say that when such a finding is made, certain consequences shall ensue. Among such consequences two are mentioned in that Sub-section. They are:

(i) the land shall, without prejudice to any rights which the transferor or the transferee may have against each other, be deemed to be the land of the transferee for the purpose of this Act ;

(ii) if any such land or any part thereof is retained by the transferee under the provisions of this chapter, such land or such part thereof may be taken into account in calculating the land which may be retained by the transferor, under this Chapter, as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him.

Mr. Dutta''s argument on this point proceeds on the assumption that where after an enquiry the State Government has found a transfer to be bona fide, the transferor suffers a penalty from which similarly circumstanced bona fide transferor against whom no enquiry had been started is spared. Therefore, he says that between the same class of bona fide transferors, a discrimination is made because in the case provided under Sub-section (3) of Section 5A the transferor loses certain land which the other bona fide transferor against whom no enquiry had been started does not lose.

This argument is based on questionable assumptions. Before dealing with these assumptions, it is necessary to point out that the learned Government Pleader on behalf of the State has rightly contended before us that the question of constitutional validity under Article 14 of the Constitution on the ground of discrimination cannot be raised in this case because of the protection given to this legislation under Article 31A of the Constitution which expressly provides that:

Notwithstanding anything contained in Article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31.

If the learned Government Pleader is right in his submission under Article 31A of the Constitution, then it is a complete answer to the Petitioner''s contention. But this in its turn requires examination of the position under Article 31A of the Constitution so far as the impunged statute is concerned. But before dealing with this point of the relationship between Article 31A and the impugned statute, it is necessary to express our view and decision on the points urged.

The classification in this case is not unreasonable and may be defended on that ground. Not all bona fide transferors can be said to be classed together by reason of their being only bona fide transferors. The distinction comes with the fact that some transfers are found to be prima facie not bona fide. Therefore, that creates a difference between one bona fide transfer and another. No doubt, a transfer which is prima facie said to be not bona fide may ultimately turn out to be bona fide, but that does not make it all the same class. Transfers not prima facie bona fide and transfers which are prima facie bona fide can be said not to belong to the same class of transfer. It has also been held by a learned single Judge of this Court, Banerjee, J. in Ratnakar Ghosh and Anr. v. State of West Bengal and Ors. (1961) 66 C.W.N. 405, that Article 31A of the Constitution saves Section 5A(3) of the Act. Without repeating ourselves on the point, we say that we agree with the view and opinion expressed by Banerjee, J. in that decision on this point.

It has been contended on this branch of the argument for the Petitioners that Article 31A of the Constitution does not protect Section 5A of the West Bengal Estates Acquisition Act on the ground that Section 5A does not deal with the acquisition by the State of an estate or any rights therein or the extinguishment or modification of any such rights. It is an ingenious argument to begin with. It is also argued that Section 5A does not come within the meaning of "law providing for the acquisition by the State of any estate or rights therein or the extinguishment or modification of any such rights" as appearing in Article 31A of the Constitution.

Section 5A provides for restrictions of certain transfers. But it appears as a section of the West Bengal Estates Acquisition Act which is expressly and obviously a statute for the acquisition of the estates, rights of intermediaries and of raiyats and under-raiyats. Section 5A cannot be torn apart from this context and is part of the whole Act which contains the scheme of the acquisition of estates and rights therein and vesting them in the State and it is a part of this whole scheme of acquisition under the Act to cancel certain transfers by intermediaries on specified dates'' in certain events and qualifying the rights of the transferors and transferees in case of certain prima facie not bona fide transfers turning out to be bona fide after the enquiry.

What is then said is that the words "estates or rights in relation to an estate" have a special meaning under Article 31A and the present Petitioners do not answer that special meaning in respect of these two words. Sub-Article (2) of Article 31A of the Constitution says:

In this Article,-

(a) the expression ''estate'' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, etc....

(b) the expression ''rights'', in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder (raiyat, under-raiyat) or other intermediary and any rights or privileges in respect of land revenue.

This argument really is based on the conception of raiyati lands under the Bengal Tenancy Act. It is said that after the West Bengal Estates Acquisition Act, 1953, estates within the meaning of the Bengal Tenancy Act vanished. The raiyats and under-raiyats were brought within new Chapter VI of the West Bengal Estates Acquisition Act by the West Bengal Estates Acquisition (Amendment) Act, 1955 (West Bengal Act XXXV of 1955). The Constitution (First Amendment) Act, 1951, introduced in the Constitution Article 31A and Article 31B and the 9th Schedule. But the Constitution (Fourth Amendment) Act, 1955, introduced the further amendment of Article 31A with which we are now concerned and this Fourth Amendment came into force on April 27, 1955. It is, therefore, said that if we interlace the West Bengal Estates Acquisition Act and its amending Act 35 of 1955 with the Constitution (First Amendment) Act and the Constitution (Fourth Amendment) Act, then the position is that there was no estate within the meaning of the Bengal Tenancy Act and no rights in relation to such estates. Therefore, it is said that Article 31A does not protect Section 5A of the West Bengal Estates Acquisition Act, which, incidentally, was introduced by Section 2 of the West Bengal Estates Acquisition (Amendment) Act, 1954 (Act XIII of 1954). As a piece of confusion, as a superb constitutional puzzle and as a statutory shock to sense of time, the situation is truly Gilbertian. But both the statute and the Constitution have liberally used the "deeming" provision in this connection presumably to override anticipated practical difficulties.

Before noticing the deeming provisions and the retrospective constitutional and statutory provisions, it may not be out of place to make a reference to the two Kerala cases which came up for final decision before the Supreme Court: (1) Purushothaman Nambudiri Vs. The State of Kerala, and (2) Karimbil Kunhikoman Vs. State of Kerala, . In the former case, it is pointed out by the Supreme Court that in treating the expression "estate" as of wide denotation it has to be enquired in other case whether there was a local definition of "estate" prevailing in the relevant existing law, and if there was one, that would determine the nature of the property, but if there was no definition in the relevant existing law, the Courts would enquire whether there was a local equivalent and in that connection it would be necessary to consider the character of the given agricultural property and its attributes. Gajendragadkar, J. at page 705 of that report observed:

Therefore, in deciding the question as to whether the properties of the Petitioner are an "estate" within the meaning of Article 31A(2)(a) we are not prepared to adopt the narrow construction that the estate must always and in every case represent the estate held by zamindars or other similar intermediaries who are the alienees of land revenue.

In the latter case, it is pointed out by the Supreme Court that as the definition of the "estate" came on the Constitution on January 26, 1950, and is based on existing law, the Court is to look into the law existing on January 26, 1950, for the purpose of finding out an estate under Article 31A of the Constitution. These two decisions of the Supreme Court were rendered on the same date and by the same Bench of the learned Judges. They arise on the same Kerala Agrarian Relations Act, 1961. The first Supreme Court decision does not at all help the Petitioners. It is true that in the second Supreme Court decision in Karimbil Kunhikoman Vs. State of Kerala, , the whole of the Kerala Agrarian Relations Act, 1961, was struck down as violative of Article 14 of the Constitution in so far as it applied to raiyatari lands in those areas of the Kerala State which were transferred to the State of Madras. But in Karimbil Kunhikoman v. State of Kerala''s case it was found as a fact that areca and pepper plantations were not included in the definition of Section 2(39) of the Kerala Act and it was held there that there was no appreciable difference between the economics of tea, coffee and rubber plantations and areca and pepper plantations. The Supreme Court in this case considered the object and purpose of the Kerala Act and the basis on which exemption had been granted under Chapters II and III of the Kerala Act to plantations as defined in that Act and held that there was no reason for making any distinction between tea, coffee and rubber on the one hand, and areca and pepper on the other. Therefore, it came to the conclusion that the provisions relating to plantations were violative of Article 14 of the Constitution. This argument is not applicable at all to the Petitioners in this case.

The short answer to this branch of the Petitioners'' argument can be given independently of all decisions on this point Section 52 of the West Bengal Estates Acquisition Act expressly declares that the land held by the raiyats and the under-raiyats are estates and a person holding under a raiyat or an under-raiyat is a raiyat for the purposes of Clause (c) and (d) of Section 5. By this statutory provision an "estate" is created and declared which clearly comes within Article 31A(2)(a) of the Constitution. Now this particular piece of legislation and specially Section 52 of this Act was substituted for the former section with retrospective effect by Section 16 of the West Bengal Estates Acquisition (Amendment) Act, 1955, being West Bengal Act XXXV of 1955. By that section of the amending Act, it was expressly provided that this section was deemed to have always been in existence. The language used in Section 16 of the amending Act is "the following section shall be substituted and shall be deemed always to have been substituted". Similarly, Section 5A of the West Bengal Estates Acquisition Act was inserted with retrospective effect by Section 2 of the West Bengal Estates Acquisition (Amendment) Act, 1954, being West Bengal Act XIII of 1954, where the language again is "the following section shall be inserted and be deemed to have always been inserted".

Coming now to the Constitution (Fourth Amendment) Act, 1955, by which Article 31A of the Constitution was amended, we find that Section 3 of the Constitution (Fourth Amendment) Act, 1955, also uses the language "for Clause (1) the following clause shall be deemed always to have been substituted, etc." That being the position, the retrospective effect both of the statute and of the Constitution amendment clearly provides for the lands held by the raiyats being statutorily declared to be estates. If this provision be deemed to have been always there, then the argument on behalf of the Petitioners on this point loses all force. The estate was then obviously there and it has not "vanished" as was suggested by the arguments at the Bar for the Petitioners. Then the word "estate" as defined in Article 31A(2) of the Constitution brings this particular "estate" declared by Section 52 of the West Bengal "Estates Acquisition Act within the constitutional competence. In any event, Clause (b) of Article 31A(2) of the Constitution clearly includes any right of a raiyat or an under-raiyat or other intermediaries expressly as within the definition of the expression "rights in relation to an estate". We, therefore, hold that Section 5A of the Act is protected by Article 31A of the Constitution.

In this application there has not only been a general attack challenging the constitutional validity of the West Bengal Estates Acquisition Act but also in respect of its meaning and interpretation. To appreciate the many intricate questions of interpretation argued, it will be essential to have at least a bird''s-eye view of the historical background as much as of the scheme of this Act and its relation with a cognate Act in this State on the connected problems.

This Act is the herald of new legal order of land tenure. The preamble of the West Bengal Estates Acquisition Act quoted above indicates the objects. The Bill was published on May 5, 1953, in the official Gazette. It sounded the death knell of the old feudal order of land tenures under private zamindars and landlords. It marks the sunset of private ownership of land and the permanent settlement, which for over a century and a half was at once the bete noire and the cynosure, for while the Conservatives adored it as the high watermark of excellence in land revenue jurisprudence, the radicals cursed it as the very symbol of foreign tyranny. The Land Revenue Commission of 1938 recorded its opinion by a majority that the zamindary system was no longer suited to the conditions of the present time. It recommended that the interest of all classes of rent receivers should be acquired in reasonable terms so that the actual cultivators might become tenants holding directly under the Government. Next came the Bengal Administration Enquiry Committee, 1945, which examined the question mainly from the administrative point of view. It expressed its opinion that the present system of land tenure was outmoded and was an obstacle to the maximum utilisation of the land and water resources of the country. Similarly, the Agrarian Reforms Committee proclaimed the same view. Reasons, historical, sociological, agrarian, economic and ideological, have been marshalled to show the need for the present Act. The wisdom of yesterday has been duly condemned by bell and candle, as foolish today and if the course of time is not linear but cyclic, the present sagacity of today will no doubt be dismissed tomorrow as primitive and archaic, and that in the name of progress.

The published statement of objects and reasons of the Act declared the following fourfold purposes:

(1) to eliminate the interest of all zamindars and other intermediaries by acquisition on payment of compensation,

(2) to permit all intermediaries to retain possession of their khas lands up to certain limits and to treat them as tenants holding directly under the State,

(3) to acquire the interests of zamindars and other intermediaries in mines, and

(4) to provide for certain other necessary and incidental matters.

In the classic work of C.D. Field on the Regulations of the Bengal Code and in his equally famous Introduction there dated October 11, 1875, the great and learned author observed:

the existing system in almost in all departments is of modern creation, but its foundations rest in the past; and the greater knowledge of that past which made one engaged in the work of administration possesses, the better he is acquainted with all that has been already done and tried and approved or condemned by experience the more competent will he be to work the system now in force and to suggest improvements where it is found to fail.

That caution, however, was not perhaps observed in introducing this new Act and new legislation. For with the advent of the Act, and almost simultaneously with it, ensued ceaseless amendments, a process which is going on even this year, such as:

(1) West Bengal Act XIII of 1954 published on 23.4.54.

(2) West Bengal Act XVIII of 1954 published on 2.10.54.

(3) West Bengal Act XXXV of 1955 published on 25.11 55.

(4) West Bengal Act IV of 1957 published on 9.3.57.

(5) West Bengal Act V of 1957 published on 8.1.58.

(6) West Bengal Act VI of 1958 published on 19.7.58.

(7) West Bengal Act XXV of 1958 published on 26.1.59.

(8) West Bengal Act XVII of 1960 published on 7.10.60.

(9) West Bengal Act IX of 1961 published on 24.4.61.

(10) West Bengal Act XIX of 1961 published on 14.10.61.

The avalanche of amendments has come in such quick sucession that no one has a complete statute and it is difficult to get the complete statute and to trace which amendments have retrospective effect and what is their real import in a total view and a total context. The Government has not got it, the Courts do not get it, and all that the best efforts and time can produce is a body of incomplete miscellaneous correction slips, very often incorrectly printed or even typed and mostly misplaced and inserted at wrong places. This is an avoidable evil and should be remedied in public interest and it will not be inappropriate even today to remind us what a very historic woman said on a very historic occasion for India, which still represents the ideal of all good legislation:

In their (people''s) prosperity will be our strength, in their contentment our security, and in their gratitude our best reward (Queen Victoria''s proclamation dated November 1, 1858)

and this Court would like to see our laws are impressed with these objectives of prosperity, contentment, security and gratitude of the people for whom the laws are meant.

It will be wrong to think that present problems of land tenures are new to this age, or, even unprecedented. Lord Hastings in his Minute of December 31, 1830, wrote:

Never was there any measure conceived in a purer spirit of generous humanity and disinterested justice than the plan for the Permanent Settlement in the lower provinces. It was wrothy (of) the soul of a Cornwallis: yet this truly benevolent purpose, fashioned with great care and deliberation, has to our painful knowledge subjected almost the whole of the lower classes throughout these provinces to most grievous oppression-and oppression, too, so guaranteed by our pledge, when we are unable to relieve the sufferers.

It is said there that Lord Gornwallis was responsible for making the Settlement permanent upon the information possessed at the time and without adequate provision for protecting the rights of the raiyats and other subordinate holders. As the present generation is allergic to history, it would be useless to quote history except to mention Shore''s famous Minutes for those who are still foolish enough to read the past history of our own country, for they represent the essential problems which even then agitated the minds of jurists and administrators in order to realise that the present slogan of "land for the tiller of the soil" is not so new as this generation thinks. But then the Bengal Tenancy Act first became statute in the year 1885 and it was not thought necessary in its long life to amend that Act so radically, so frequently and in such quick succession as the present Act except on two occasions, one in 1928 and the other in 1938. The only similarity appears to be that the First Regulation of 1793 initiating the Permanent Settlement was passed by the Governor-General in Council on May 1, 1793, and just exactly about 160 years after and in the same month of May, to be accurate, on May 5, 1953, the West Bengal Estates Acquisition Act was published. Land tenure in Bengal seems to have a May Day.

The West Bengal Estates Acquisition Act, 1953, is really an Act for nationalisation of land. It, therefore, does not stand by itself, because mere nationalisation of land will not help the problems involved in it. It is only a means to an end which must show how the land nationalised is to be used for the benefit of the people. Its sister Act is the West Bengal Land Reforms Act, 1955, which inter alia lays down the principles of distribution of lands. Between these two Acts we have most of the present land law and land policy of this generation in this State.

The statutory revolution on this point was also linked up with constitutional turmoil of the amendments. The Constitution of India came into effect in 1950. The Constitution (First Amendment) Act, 1951, came on June 18, 1951, introducing, inter alia, Article 31A for the purpose of saving of laws, providing for acquisition of estates and Article 31B for validation of certain Acts and Regulations. The next constitutional landmark on this point came with further constitutional amendment in the Constitution (Fourth Amendment) Act, 1955, which came into force on April 27, 1955, amending Article 31 and Article 31A and also the 9th Schedule by adding further Acts and statutes into the list of constitutional protection.

The West Bengal Estates Acquisiton Act, 1953, having regard to its historical mission, is a comparatively short statute with about 60 sensible sections and is divided into seven chapters. The First Chapter includes the definition and contains the significant Section 3 which says that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law or in any contract, express or implied and notwithstanding any usage or custom to the contrary subject, however, to certain exemptions in favour of land held by Corporation, not being a local authority or company, and in favour of land, possession of which was taken by the State Government before the issue of any notification u/s 4. The Second Chapter deals with the acquisition of estates and the rights of the intermediaries. The scheme of this chapter is that there has to be a notification by the Government vesting estates and rights of intermediaries. Such vesting is made free from all encumbrances. The effect of the notification is stated in Section 5. Then follows the impugned Section 5A putting restrictions on certain transfers during a certain period. Section 6 deals with the rights of the intermediaries to retain certain lands and this is their most valuable right under the Act so far as the intermediaries are concerned. The relevant procedure for retention of land and all ancillary provisions in connection therewith are provided in this chapter. The Third Chapter deals with assessment and payment of compensation and preparation of Compensation Assessment Roll and the methods and calculation of gross and net income. The Fourth Chapter deals with mines and minerals. The Fifth Chapter deals with the preparation of record of rights and the procedure in respect thereof and their corrections and modifications. The Sixth Chapter deals with the acquisition of interests of raiyats and under-raiyats, who were apparently at first excluded in the Act as indicated above. The Seventh Chapter deals with the authorities for the purposes of the Act, delegation of powers by the State Government to such authorities, appointment of Special Judges and Tribunals. The Act does not deal with the question of how the estate will use the lands after they have vested in the State.

For that purpose another Act was passed, called the West Bengal Land Reforms Act, 1955, being West Bengal Act X of 1956. This is an Act with nine chapters and its preamble states:

An Act to reform law relating to land tenure consequent on the vesting of all estates and of certain rights therein in the States.

This is also an Act by Section 3 of which it is said that the provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act.

Chapter II of the Act deals with raiyats and their rights.

Chapter III deals with Bargadars, who are also governed by separate Acts like Bargadars Act, 1950 and 1956.

Chapter IV makes provisions as to revenue.

Chapter V deals with consolidation of land comprised in holdings and co-operative farming societies.

Chapter VI deals with the principles of distribution of lands.

Chapter VII deals with maintenance and revision of record of rights.

Chapter VIII deals with the management of estates vested in the State.

Chapter IX deals with the misellaneous subjects, such as delegation of powers by the State Government, appeals, power to compel production of records and documents and power to make rules.

Section 49 in Chapter VI of the Land Reforms Act announces the principle to be:

Subject to the provisions of this Act, settlement of lands which are at the disposal of the State Government shall be made, on such terms and conditions and in such manner as may be prescribed, that persons who are residents of the locality where the land is situated and who intend to bring the land under personal cultivation and who own no land or less than two acres of land, preference being given to those among such persons who form themselves into a co-operative farming society.

Provided that no premium shall be charged for such settlement.

The curious part about this statute is that although it is more than 7 or 8 years old, the whole Act has not even yet come into force. Indeed the provisions of Section 2, Clauses (2), (7), (8) and (9); Section 3, Section 16, Section 17 except Sub-section (3) thereof, Section 18, Section 19, Section 21, Section 59 only so far as it relates to Clause (7) thereof and Section 60 came into force in all the districts of West Bengal from March 31, 1956, by Notification No. 6346 L. Ref. dated March 30, 1956, published in the Calcutta Gazette extraordinary dated March 31, 1956. Then, Section 57 came into force in all the districts on September 1, 1957, except Purulia and except certain police stations of Chopra, Karandighi, Islampur and Goalpokhar of the Raigung sub-division in the district of West Dinajpur under Notification No. 14990 L. Ref. dated August 13, 1957, published in the Calcutta Gazette extraordinary dated August 17, 1957. Section 2(12) came into force on January 15, 1958, in all the districts with the same exceptions as above. The provisions of Sections 19A and 19B came into force on February 16, 1958, in all the districts except the places mentioned above. But the real and vital provisions of the statute, specially with regard to the principles of distribution as laid down in Section 49, have not yet, even after 7 or 8 years, come into force. An Act which predicates only for the future, with little or no application for the present is a malpractice in legislation, because it attempts to bind future Parliaments or State Legislatures, which cannot be done, and introduces uncertainty of present rights and insecurity of future prospects.

The whole picture is one of great statutory confusion on this point. This Court, while exploring this veritable legal wilderness, is impressed with the view that it will be really for the social welfare of the country if there is a uniform Land Code for the whole of India, so that the rights and obligations appertaining to land and its tenures and particularly the position of the tillers vis-a-vis the State and the Government could be collected in one place and there is a complete picture. Otherwise the confusion, as it stands, is too great. Not only are the subjects unable to find their precise rights and obligations but equally uncertain is the Government''s position when different statutes operate in the same field taking sectional views in each Act. If uniform Civil and Criminal Procedure Codes are needed in this country today, still greater is the need for the uniform Land Code in India, where agrarian interests are vital for her prosperity and where agriculture is the very soul of her economy. This need is urgent and imperative in the light of the many constitutional and statutory amendments. The necessity for a uniform Land Code for the whole of India cannot be overemphasised. The general policy is clear enough today and that is nationalisation of all lands with certain specific exemptions. This is intended to liberate Indian land tenure from the age-old burdens and tyranny of feudalism.

Arguments at the Bar included citation and comparison of similar provisions of other statutes in other States. But the statutory picture is as varied and as divergent as can be imagined, and analogies are misleading. Although the ideas may be similar, the statutory provisions are very often different. For instance, we have not succeeded in finding a provision like Section 5A(3)(ii) of the West Bengal Estates Acquisition Act in any other similar Acts in any other States in India. Section 8 of the Ajmeer Abolition of Intermediaries and Land Reforms Act, 1955, on which Thakur Raghubir Singh and Others Vs. The State of Ajmer (Now Rajasthan) and Others, , was decided by the Supreme Court or the Bihar Land Reforms Act, 1950, as amended by the Amending Act of 1959, on which State of Bihar and Another Vs. Umesh Jha, , was decided by the Supreme Court was not concerned with any provision similar to Section 5A(3)(ii), of the West Bengal Estates Acquisition Act. The ceiling of lands that can be retained, the procedure for retention, the procedure and the amount of compensation are all as varied as possible throughout India in different States. The temptation to rely on authorities based on other statutes, however great, should be avoided in this context, because the provisions are so materially different in different statutes. We have, therefore, considered it inappropriate to base our decision on Section 5A of the West Bengal Estates Acquisition Act on the analogy of other statutes and other statutory provisions in other States for the obvious reason that such analogy is not accurate and is misleading.

This will be the convenient stage now to proceed to discuss in detail the statutory challenge relating to the interpretation of the West Bengal Estates Acquisition Act. It has been contended before us by Mr. Dutta on behalf of the Petitioners that the raiyati lands are not vested in the Government by this Act. In support of this argument, reliance was placed on Section 4 of the Act which only mentioned "all estates and the rights of every intermediary in each such estate". Such estate is the only estate which shall be vested in the State free from all encumbrances. Therefore it was argued that the definition of intermediary u/s 2(i) did not include a raiyat or an under-raiyat. To advance this argument it was contended that that was the reason why subsequent introduction of Sections 49, 52, and in fact the whole of Chapter VI had to be made specially providing for acquisition of interests of raiyats and under-raiyats. Reliance was also placed in this connection on a decision of the learned single Judge, S.K. Sen, J. in Prahlad Chandra Dey v. Gobinda Chandra Dey and Ors. (1959) 67 C.W.N. 452. That decision, however, is on Section 5B and not Section 5A. Section 5B of the Act provided that:

On and from the 1st day of June, 1954, no estate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1859 (XI of 1859) or the Cooch Behar Revenue Sales Act, 1897 (Cooch Behar Act V of 1897) or the Bengal Patni Taluks Regulation, 1819 (Ben. Regn. VIII of 1819) or the Bengal Tenancy Act, 1885 (VIII of 1885) as the case may be, etc.

This Section 5B is in material particulars different from Section 5A. In this decision it was held that the amendment in respect of Chapter VI of the West Bengal Estates Acquisition Act taken with the notification u/s 49 of Chapter VI of the Act did not constitute a declaratory legislation declaring that the raiyat came within the scope of the Act along with estates and tenures so that the same could be interpreted not merely prospectively but also retrospectively. It was held there that the effective date to be inserted in Section 5B of the Act, in so far as the sale of raiyati jotes were concerned, could not be any date earlier than November 25, 1955, when Sections 49 and 52 of Chapter VI were substituted for the old sections. But then the following observations of the learned Judge at page 455 of the report really go against the main contention of the Petitioners, as I shall presently show:

It is to be observed that in Section 52, it is clearly provided that the provision of Chapters II, etc.'' shall not apply as they are, but they shall apply with necessary modifications. When the Act became applicable to raiyati jotes from a much later date, it is also necessary modification of Section 5B of Chapter II that the date mentioned in Section 5B from which Court-sale of raiyati jotes should become void would be a much later date, viz. the date on which by notification the Act was made applicable to raiyati interests.

The argument was further developed by Mr. Dutta on behalf of the Petitioners by this submission that the raiyati lands, in any event, have not vested in the State by this Act, because notification u/s 4 cannot be given in respect of raiyati lands after the expiry of the date of vesting, i.e., the 1st Baisakh, 1362 B.S. If this argument of Mr. Dutta is to be accepted, then the whole of Chapter VI would really become absolutely useless and nugatory because when the amendment itself was introduced in the shape of Sections 49 and 52, the date for such notification had already expired. The notification u/s 4 of the Act and the notification u/s 49 of the Act are entirely different kinds and types of notifications. Notification u/s 4 is for vesting estates and rights of intermediaries in the State. The notification u/s 49 is a notification by which the provisions of Chapter VI of the West Bengal Estates Acquisition Act can be brought into operation in a district or part of a district and for which it expressly provides for the possibility of different dates for different districts.

It would be necessary here to analyse a little more closely the provisions of Section 4 of the West Bengal Estates Acquisition Act. Sub-section (2) of Section 4 provides:

The date mentioned in every such notification shall be the commencement of an agricultural year ; and the notification shall be issued so as to ensure that the whole area to which this Act extends, vests in the State on or before the 1st day of Baisakh of the Bengali year 1362.

It was, therefore, necessary to provide in Section 52 of the Act that:

On the issue of a notification u/s 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for the purposes of Clauses (c) and (d) of Section 5.

Therefore, the notification u/s 4 becomes applicable mutatis mutandis to raiyats by reason of the express provisions of Section 52 of the Act which must always be deemed to have been there. If the date 1st Baisakh, 1362 B.S. in Section 4(2) of the Act could not be changed, then the whole of Section 52 would be inapplicable and will be dead letter. That is the reason why I decided in Haranath Ghosh v. State of West Bengal and Ors. (1961) 67 C.W.N. 129 (135-36):

The words ''mutatis mutandis'' following the word ''modification'' make it abundantly clear as to the modification intended u/s 52 of the Act. In other words, the word ''modifications'' in Section 52 of the Act means contextual adaptation of these chapters of the Act to the case of raiyats and" under-raiyats and not amendment of the substantive provisions and effects of those chapters. The contextual adaptation is only intended to make these chapters applicable to the case of raiyats and under-raiyats....

Therefore, the date 1st Baisakh, 1362 B.S. could be changed u/s 52 read with Section 49 of the Act and in fact was so changed by notification in this case where the date of vesting was fixed on August 14, 1956, for the raiyats which was necessarily after 1st Baisakh, 1362 B.S. It would be unnecessary to add any further reasons to this branch of the case in support of our view and it would be enough to conclude with a reference to the observations of the Supreme Court in the State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, , in support of the view we are taking.

We have already discussed this question whether raiyati lands have vested in the State by this Act and specially on the ground that no notification u/s 4 could be given in respect of raiyati lands after the expiry of 1st Baisakh, 1362 B.S., as urged on behalf of the Petitioners. In fact, however, there was a notification No. 6830 L. Ref. dated April 10, 1956, u/s 4 in this case. It may be urged that the first notification u/s 4 already issued would cover the question because the Constitution was retrospectively amended. It was also contended, and rightly, that the second notification could be made by reason of the words "mutatis mutandis" appearing in Section 52 of the Act. Reference in this connection was made to the decision of Katras Jharia Coal Co. Ltd. Vs. State of West Bengal and Others, . This was a case touching the question of existing lessees and sub-lessees of mines and minerals. It relates to mines and minerals after the definition of the term "intermediary". It is not concerned with the words "mutatis mutandis" as appearing in Section 52 of the Act which must be taken into consideration in the present application. Again, there was no second notification in that case as it is here. Section 2(2) of the amending West Bengal Act IV of 1957 while extending the definition of intermediary makes it clear that the added provision "shall be substituted and be deemed always to have been substituted".

Coming back now to the statutory interpretation of Section 5A of the West Bengal Estates Acquisition Act and the challenge made on the ground of discrimination, I have already said that this challenge was based on a number of assumptions. The basic assumption which is now to be analysed is whether Section 5A(3) is really a penalty discriminating against the kind of bona fide transfer as distinct from the bona fide transferor against whom no proceeding had been started u/s 5A of the Act. The assumption, in our view, is erroneous. Long arguments have been advanced before us and liberal references were made in such arguments to the debates and proceedings in the Assembly. The language of the Act, though involved in many places, and apparently illogical in some others, must, in the first instance, be analysed to find whether any reasonable construction is possible. After an anxious consideration we have come to the conclusion that an interpretation of this section is possible without doing violence to common sense or a sense of fairness. The scheme of Section 5A of the Act must be kept broadly in view. There are some special features of Section 5A of the Act. It will be now necessary to consider those special features from the point of view of such interpretation of this section. This section was introduced, historically, to avoid the large transfers that started on the publication of the Bill on May 5, 1953, in the official gazette. That is the reason why the words "May 5, 1953" are expressly mentioned in Section 5A(1) of the Act. The amendment introducing Section 5A, as indicated above, was inserted with retrospective effect by Section 2 of the West Bengal Estates Acquisition (Amendment) Act, 1951 (Act XIII of 1954). The date of vesting, originally as provided for, was April 14, 1955. Therefore, the two dates, May 5, 1953 and April 14, 1955, represent the period of time within which transfers were liable to be scrutinised. That is the obvious policy of Section 5A of the Act to prevent large-scale evasion of the statute. Similar provisions were made all over India in the different statutes of the different States to prevent private transfers frustrating the object of the Act. Therefore, the State acquired right u/s 5A of the Act to enquire into these transfers between May 5, 1953 and April 14, 1955. The object of such enquiry was to find whether the transfers were bona fide or not bona fide. Now this test of bona fide or not bona fide is not to be understood in the ordinary sense of bad faith. It is a special kind of statutory bad faith defined by the section itself. Section 5A(7) of the Act provides its own dictionary to say what transfer is not bona fide. It expressly provides in Clause (1):

A transfer shall be held to be not bona fide if it was made principally or partially with the object of increasing the amount of land which a person may retain under this chapter or principally or partially with the object of increasing the amount of compensation payable under Chapter III or Chapter IV.

This shows that what is bona fide or not bona fide is to be determined by two express tests laid down there. If the transfer is principally or partially with the object of increasing the amount of land which could be retained, then it is not bona fide under the Act. Secondly, if the transfer again is principally or partially with the object of increasing the amount of compensation, that is permissible under the Act, then also the transfer is not bona fide. It, therefore, means that in order to come to the conclusion if a transfer is not bona fide it is necessary to find that principally or partially the transfer is made with the object of increasing the amount of land which a person may retain under the Act or principally or partially to increase the amount of compensation payable under the Act as mentioned in Sub-clause (1) above. In no other sense a transfer is to be held as bona fide or not bona fide. It follows from this definition that such a transfer does not at all deal with any question of title between the transferor and the transferee and their rights inter se.

From this it follows that when a transfer is cancelled as not bona fide within the meaning of the Act as above, what is done is that the State Government makes an order that the transfer is not bona fide and thereupon the transfer stands cancelled as from the date on which it was made or purported to have been made. But it is clearly laid down in the proviso to Section 5A(2):

Subject to such cancellation, nothing in this Sub-section shall be deemed to affect any rights which the transferor or the transferee may otherwise have against each other.

The next feature is the situation when the State Government finds after the enquiry u/s 5A that the transfer is bona fide within the meaning of the Act as mentioned above, then it is provided that the State Government shall make an order to the effect that the transfer is bona fide. It is laid down in Section 5A(3) of the Act that upon such an order being made, two consequences shall follow. They are:

(i) the land shall, without prejudice to any rights which the transferor or the transferee may have against each other, be deemed to be the land of the transferee for the purpose of this Act ;

(ii) if any such land or any part thereof is retained by the transferee under the provisions of this chapter, such land or such part thereof may be taken into account in calculating the land which may be retained by the transferor under this Chapter as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him.

Bitter arguments have raged round the interpretation of these two consequences. So far as the first consequence is concerned, it appears comparatively not so controversial; all that it says is that naturally when a transfer is held to be bona fide, the land should belong to the transferee. That is made expressly clear in that part of the consequence, but that even is without prejudice to the rights which the transferor or the transferee may have against each other. Undoubtedly it should be so, because the Government''s order that the transfer is bona fide does not touch the question of title and if, for instance, when a transferor has transferred his property to which it is ultimately found that the transferor had had no title, then surely the. transferor''s right to transfer would be liable to be cancelled independently of the Act, as it should he. Similarly, there may be other defects in the transfer, in area, easement rights, and other factors for which the parties to the transfer must be left free to exercise their own rights against each other. But then the other feature of this consequence is that the land transferred is deemed to be the land of the transferee for the purpose of this Act. This has been critised at the Bar as being illogical for it should not have been "deemed" to be his land because under the transfer, it is the transferee''s land and held to be bona fide. But there is a short answer to this argument. That answer is that this enquiry u/s 5A of the Act is not a kind of finding on the title to or defect in respect of the land, but is only a finding on the question whether this is a bona fide transfer within the limited meaning of bona fide as given in Section 5A(7) of the Act. The enquiry and the finding are, therefore, both extremely limited. Hence, the words used are "deemed to be the land of the transferee for the purposes of this Act" in Clause (i) of Sub-section (3) of Section 5A of the Act. That is all that this Act does when it makes an order under that provision declaring that the transfer is bona fide. It can only be said that it is deemed for the purpose of the Act and no more, because the enquiry is limited to that object. Now the words "purposes of the Act" mean in this context either the purpose of retaining the land, which is a right recognised under this Act or for getting compensation for the land, which is also a right recognised under the Act. In other words, the transferee under Clause (i) of Section 5A(3) of the Act can retain the transferred land within the meaning of the Act or allow the land to vest in the Government and claim compensation for it under the Act. That appears to us to be a fair and reasonable interpretation of Clause (i) of Section 5A(3) of the Act.

On Clause (ii) of Section 5A(3) of the Act, the argument has been more controversial and bitter. Mr. Dutta, appearing for the Petitioners, puts his criticism in this way. He submits in the first place that the transfer has been held to be bona fide by the State Government after an enquiry u/s 5A of the Act. In other words, he submits that the State Government has found such a transfer not to be with the object either to retain more lands than permissible under the Act or to acquire more compensation than is allowable under the Act. If that is so, then Mr. Dutta submits, it becomes inexplicable why the transferor should again be penalised by such transferred lands being brought within the calculation of lands which such a bona fide transferee could retain under the Act. This, he says, is wholly irrational, insensible, vindictive and is out and out a penalty for such a transfer. There is a good deal of force in this contention and a prima facie reading of Sub-clause (ii) of Section 5A(3) of the Act appears to justify the bitter criticism which Mr. Dutta has made of this provision and on the assumption of which he has again challenged the proposition as wholly discriminatory and therefore vitiating Section 5A.

Clause (ii) of Section 5A(3) has been set out above. A close and careful analysis of that provision shows that it comes into operation only "if any such land or part thereof is retained by the transferee under the provisions of this chapter". That is the first condition for the application of this provision. If the transferee does not retain the transferred land or any part thereof within the meaning of this Act, then no further application of this provision is called for. In other words, if the transferee has not retained such transferred land, transferor''s calculation of land to be retained by the transferor will not be disturbed.

But when the transferee has retained the transferred land or any part thereof under this chapter of the Act, then this statutory provision requires that such land or such part thereof may be taken into account in calculating the land which may be retained by the transferor under this chapter. Now the obvious meaning of this provision is that what is to be taken into account is the transferred land or part thereof. But then comes the difficulty, what is the object for which such transferred land or part thereof should be taken into account. The object in plain language is to calculate the land which may be retained by the transferor under this chapter. Here the words "the land" are obviously not merely the transferred land or any part thereof but all the land which is permissible to be retained by the transferor under this chapter-That means obviously the land which can be retained u/s 6 of the West Bengal Estates Acquisition Act. But if the transferred lands have been transferred bona fide to the transferee, then why should they be taken into account in calculating the land which the transferor can retain. That seems illogical, because the transferor has parted with the possession of the land in favour of a transferee, who is a bona fide transferee. Maybe, on the basis of such transfer the transferor has retained the limit of the land which he can retain u/s 6, in which event if he is to calculate back lands already transferred by him, it might mean that the transferor would lose the land which after the transfer he had retained u/s 6 within the ceiling permitted to him. The result may be that in some cases such transferor may go without any land or be satisfied in other cases with land much less than the ceiling permitted by the Act. This is the injustice and this is the hardship against which Mr. Dutta, for the Petitioners, argues. This argument has to be met by an interpretation, fair and reasonable. It is no good saying that, however unreasonable and stupid it may be, this was exactly what the legislature did and the Courts are not to reason why. This Court would like to think that the legislature does not do such an insensible thing.

On a very careful and anxious consideration of this aspect of interpretation of this particular provision, we think that a reasonable interpretation is possible to justify the statutory provision. This transferred land is taken into account in calculating the land which the transferor can retain for the following reasons. In the first place, the transferor made this transfer after May 5, 1953, when he found that the Bill had already been published in the Gazette proposing to pass this Act by which certain lands or estates would vest in the State by April 14, 1955, The transferor was also aware that under the Bill as published, he could retain only up to a ceiling specified in Section 6 of the Act. Now, what can he do ? He can transfer all the lands he was then holding beyond the proposed ceiling or he can also transfer land which he might have retained within such ceiling. These are the only two possible cases under this particular statutory provision. Now in the first example where the transferor has transferred all lands in excess of the ceiling provided in Section 6 of the Act, the transferee retains such land or part thereof as can be retained under the provisions of this chapter of the Act. The transferee, therefore, exercises his right of retention over the transferred land under the Act. To bring it back in the calculation of the transferor''s land in order to calculate how much the transferor can retain, it may mean that the transferor will lose either whole or part of the lands retained by him under the Act. The transferor really suffers no penalty in that event, because for the bona fide transfer of his lands he has already got the full value of the transfer or full satisfaction of the transfer from the transferee. If he loses the whole or some part of the land retained by him when this transferred land is taken into account for calculation, then for whatever is lost he will be entitled to claim compensation from the Government.

Here again, the significant words used in Sub-clause (ii) of Section 5A(3) of the Act are "may be taken into account". Here the word "may" is not necessarily "must", for indeed there may be cases of forced transfers or transfers under compelling circumstances for compelling needs and in which case the word "may" seems to indicate, as argued even by the learned Government Pleader in this case, a "discretion". On the other hand, if a transferor has transferred land bona fide within his ceiling, then it obviously means that in spite of the published Bill on May 5, 1953, providing for Section 6 of the Act, he chose not to retain lands up to the ceiling and transferred them and got value for the same. Therefore, the transferred land is taken into account in calculating the land to be? retained by the transferor and this calculation in such an event is a notional adding back to make up the statutory ceiling. Here again, there is no penalty for the transferor as he himself chose not to retain lands within his ceiling as he was entitled to, but voluntarily transferred them.

If this view is taken, then the apparent illogicality of this statutory provision is considerably reduced. This taking into account in calculating the transferred lands in Sub-clause (ii) of Section 5A(3) is made really by way of statutory fiction because the words used there are "as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him". In other words, it is a kind of rider to the definition of a transfer not bona fide in Section 5A(7)(i) of the Act. It is a rider in this sense that a transfer under Sub-Section 7(i) is not bona fide only if it was with the object of increasing the amount of land which a person may retain under this chapter or to get more compensation under the Act as provided therein. But Section 5A(3)(ii) says that in case of a bona fide transfer the statutory fiction is that such bona fide transferred land will be taken into account in calculating the land to be retained by the transferor as if the transferor had not transferred and had retained the land under the Act. If he had retained the land through other names, then he would have come within the mischief of the transfer being held not bona fide under Sub-Section 7(i).

Therefore, on this view of the interpretation, we do not think that there is any discrimination involved as alleged on behalf of the Petitioners.

Section 5A(3) makes it quite clear that if after the enquiry the State Government finds that the transfer is bona fide, then its duty is to make an order to that effect, namely, that it is bona fide. The order at that stage is nothing more and nothing less. Section 5A(3) proceeds thereafter to say "and thereupon the following consequence shall ensue, etc." It does not appear to us that the administration of these consequences is a part of this particular enquiry u/s 5A. Section 5A is only concerned with declaring a transfer bona fide or not bona fide. If it is not bona fide, it is cancelled as in Sub-section (2) of Section 5A. If it is bona fide, it will make an order to the effect that it is bona fide. But administration of consequences such as in Clauses (i) and (ii) in Section 5A(3) involves many other enquiries which cannot be proper or germane to the limited enquiry u/s 5A of the Act. After a transfer has been held to be bona fide, or not bona fide and therefore cancelled, further consequences naturally will ensue under the Act at appropriate stages before appropriate authorities either under the Act or otherwise. For instance, preparation of the Record of Rights can always be carried out to give effect to the purposes of this Act as laid down in Chapter V and particularly Section 39 and the limitations mentioned therein. It is expressly provided, for instance, in Section 44(1) proviso, that no order passed u/s 5A shall be liable to be re-opened in pursuance to an objection made u/s 44(1) of the Act. Therefore, u/s 5A order should be taken and given effect to without re-opening it under any objection. Section 45A of the Act specially provides that any Revenue Officer empowered by the State Government in this behalf may correct any entry or any Record of Rights, if it is necessary, in his opinion, to do so in pursuance of an order u/s 5A. That means that the Revenue Officer has the authority to correct an entry in the Record of Rights in order to give effect to an order u/s 5A of the Act and in which event it is for him to administer the con sequences at that stage for the proper preparation of the Record of Rights as a result of that order. There is a proviso to Section 45A which says:

That no such correction shall except where it is made in pursuance of an order u/s 5A be made until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

This, in our opinion, does not mean that where as a result of an order u/s 5A of the Act he is to administer the consequences either under Sub-section (2) or Sub-section (3) he can always do so without notice to the parties concerned and hearing them. He can only do that without notice where in any conceivable case the order u/s 5A is clear and undisputable as to what correction in the matter of consequence is intended, but the Revenue Officer, in our opinion, in all other cases must necessarily give reasonable notice to all parties concerned who are interested and be heard in the matter before correcting the Record of Rights by administering the consequence. Even Record of Rights prepared and finally published under the provisions of Chapter V can be modified u/s 47 of the Act as laid down there. It is in such proceedings that the consequences of an order u/s 5A can be appropriately administered and at that stage it will be possible for the Revenue Officer concerned to take all facts and circumstances into consideration regarding what land he will take into account, how to calculate u/s 5A(3)(ii) and whether Section 5A(3)(ii) at all applied in the facts and circumstances of the particular case and whether the transferee had retained the transferred land under the Act or any part thereof and such other considerations and circumstances as may come under the word "may" u/s 5A(3)(ii) of the Act.

The next point urged on behalf of the Petitioners is that the proceedings u/s 5A(3) cannot be started after the final publication of the Record of Rights. In support of this argument. Mr. Dutta for the Petitioners relied on Section 6(2) of the Act. He emphasised the words "as entered in the Record of Rights finally published under Chapter V" in Section 6(2) of the Act. He also relies on the provisions of Section 44 to indicate that there can be no enquiry u/s 5A after the final Record of Rights have been published. To help his argument on this point, he made a referrence to the provisions of Section 14(1) of the Act on the preparation of Compensation Assessment Roll. He relied on Rules 44(25) and paragraph 7 of Schedule B of the West Bengal Estates Acquisition Rules in support of his contention that the publication of the final Record of Rights was a complete bar to any subsequent enquiry u/s 5A of the Act. On this point he relied on a Division Bench decision of this Court in Ramnuggar Cane ir Sugar Co. Ltd. v. State of West Bengal (1958) 64 C.W.N. 760. The ratio of this decision is that neither the Act nor the rules made thereunder conferred any jurisdiction on the Revenue Officer to determine rents under any of the Sections 40, 41 and 42 of the Act after the draft Record of Rights had been published and consequently the determination of rent as made by the Revenue Officer in respect of lands held by the Petitioner u/s 6(1) of the Act was invalid and without jurisdiction. This case is of little assistance to the Petitioners in this case, because the Act has since been amended retrospectively by introduction of Section 42A. That decision was given on April 28, 1958. Section 42A was inserted in 1961 by West Bengal Act XIX of 1961 to overcome its effect. The decision, therefore, no longer applies. Secondly, this is not a decision on Section 5A nor does it consider the scope and effect of Section 45A of the Act. If Record of Rights and their final publication was to conclude "and stop all enquiries u/s 5A, then Section 5A will lose a good deal of its main object and purpose. It will also create discrimination and confusion because in some distracts they may have been finally published where the transfer can no longer be questioned on the basis of this argument while transfers in other districts where there was no final publication, could be questioned.

In fact, Section 5A enquiry has no reference whatever to the final publication of the Record of Rights. This section does not say nor does it contain this condition. It is independent of all Record of Rights. Indeed the provisions of Section 44 and Section 45A expressly indicate that in the first place the order u/s 5A is not liable to objection under the proviso to Section 44(1) of the Act and, in the second place, it gives the Revenue Officer jurisdiction to correct Record of Rights and to give effect to an order u/s 5A by reason of Section 45A. Publication of the Record of Rights cannot conclude and determine the liability and obligations u/s 5A of the Act. The Record of Rights is at best a prima facie proof which can always be rebutted. It is true that Rule 26 does not contain "lands retained" as an item, but then the retained lands under the Act can come in the column for "general particulars". In this connection Rule 6 of Schedule B under the Act may be seen. Therefore, to limit Section 5A enquiry by excluding transfers in respect of which final publication of the Record of Rights has already been made is to read a limitation which the statute in general and Section 5A in particular do not impose. We are, therefore, unable to accept this argument of Mr. Dutta.

One of Mr. Dutta''s submissions on behalf of the Petitioners is on the presumption contained in Section 5A(7)(ii) of the Act which provides as follows:

A transfer in favour of one or more of the following relatives of the transferor, that is to say, a wife, a husband, a child, a grandchild, a parent, a grandparent, a brother, a sister, a brother''s son, a sister''s son, a daughter''s husband, a son''s wife, a wife''s brother or sister, or brother''s wife, made between the 5th May, 1953, and the date of vesting shall be presumed to be not bona fide until the contrary is proved:

Provided that no such presumption shall be made in respect of transfer of land by an intermediary if the aggregate area of such land owned by the intermediary at any time between the 5th May, 1953 and the date of transfer did not exceed twenty acres in extent in the case of non-agricultural land and twenty-five acres in extent in the case of agricultural land.

His submission is that because the area in this case was less than 25 acres in case of agricultural land, therefore, the presumption cannot be applied. His point is that in this case the fact shows that the father transferred 22.03 acres of agricultural land and 0.48 demimals of non-agricultural land to his sons. From the statement marked Ext. B prepared from the finally published Record of Rights and relied on by the Revenue Officer it is found that 24.85 acres of agricultural land and 30-76 acres of non-agricultural land have been recorded in the name of Ambujakshya Banerjee as transferor. It was, therefore, found by the Revenue Officer "that the amount of land in possession of the transferor between the 5th May, 1953, and the date of transfer exceeds 25.00 acres in extent in the case of agricultural land and 20.00 acres in extent in the case of non-agricultural land". It will not be possible for us here to go into questions of disputed facts and we accept the facts as they have been found by the Revenue Officer.

The argument of the misapplication of the law of presumption does not stand scrutiny. If one analyses the whole procedure and the scheme as laid down in Section 5A, the point becomes clear. In the very first stage u/s 5A(1) the State Government has to have an opinion that there are prima facie reasons for believing that such proceedings are not bona fide. The prima facie conclusion obviously means that it is for the parties concerned in the transfer, that is, the transferor and the transferees to come in and contest and rebut that prima facie case. If they do not contest, then the prima facie case becomes absolute. That is the first presumption. It is no doubt not described as "presumption" but it is in the very nature and concept of a prima facie case. In the case of certain selected relationships as mentioned above in Section 5A(7)(ii), the transfers are presumed to be not bona fide until the contrary is proved, because of the nearness of those relationships. But it is provided that the nearness of those relationships giving rise to such presumption will not cause that presumption to arise, where the aggregate area of such land owned by an intermediary at any time between May 5, 1953, and the date of transfer did not exceed 20 acres in extent for non-agricultural land and 25 acres for agricultural land. This displacement of the statutory presumption is not on the basis only of the quantum of the land transferred. The words "aggregate" and "owned" mean the entire ownership of the intermediary and not merely the ownership in respect of the transferred land. We are, therefore, unable to accept this submission on behalf of the Petitioners.

This disposes of all the grounds urged in the petition before us. Mr. Dutta, however, made an effort to attract us by another point which is not urged as a ground in the petition before us. This point is that another transfer alleged to have been made by other co-sharers on the same day, December 30, 1953, has been declared bona fide u/s 5A enquiry and, therefore, this transfer should also have been declared bona fide by a kind of analogy. It is true that there is a reference to the other deed of transfer alleged to have been made by another co-sharer in the judgment of the Revenue Officer. But no reference is made to such a point in the judgment of the Appellate Authority nor is this point taken in the ground set out in the petition before us in this Court. This raises a new question of fact. That other transfer deed is not on the record either, nor was it formally proved. We are not in a position to know in what circumstances that transfer was held to be bona fide and what were the particular facts in relation to that transfer. In fact, the learned Government Pleader said that what was described as a transfer by a co-sharer was not a co-sharer at all, but who had partitioned all his properties more than 12 years ago. Be that as it may, those facts are not on record. Without relevant facts it will be inappropriate in a proceeding under Article 227 to find new questions of fact as a Court of First Appeal. We, therefore, are unable to entertain or accept Mr. Dutta''s submission on this point.

This leads to the question of the nature and scope of an application under Article 227 of the Constitution. The learned. Government Pleader, inter alia, emphasises that the scope of Article 227 of the Constitution is not such that this Court should record its finding either as a Court of First Appeal on facts or even as a Court of Second Appeal in questions of law. He contends that this Court on that ground alone should reject this petition. Many decisions have been cited to us at the Bar in support of this contention. Article 227 of the Constitution has come down to the present day, according to some, impaired, and according to some, unimpaired, through a long line of heritage. Without going into unnecessary history on the point, its origin can be traced for the present purposes to Section 107 of the Government of India Act, 1915 (Sections 9 and 10 of Chapter I). The marginal note of the Government of India Act, 1915, "powers of High Court with respect to Subordinate Courts" included significantly therein, inter alia, the power to direct the transfer of any suit or appeal from any such Court to any other Court of equal or superior jurisdiction in addition to the call for returns and making an issue, general rules and prescribing forms for regulating practice and procedures in such Courts as well as prescribing forms in which books and entries were kept by the officers of such Courts and setting table of fees to be allowed to Sheriff''s Attorney and clerks of the Court. On this Section 107 of the old Government of India Act, there is a decision of this Court in Manmatha Nath Biswas v. Emperor (1932) 37 C.W.N. 201 where Rankin, C.J., observes as "follows:

Soon after Section 15 of the High Court''s Act of 1861 had introduced the word ''superintendence'' to describe the power in question, it was pointed out by Norman, J., in Gopal Singh v. Court of Wards 7 W.R. 430 that it had ''a legal force and signification which are perfectly well known to the Legislature". He referred to Blackstone''s ''Commentaries'' and Bacon''s ''Abridgements'' as showing that the writs of mandamus and prohibition were methods of exercising this power and concluded, ''this power of superintendence is entirely distinct from the jurisdiction to hear appeals. If the inferior Court, after hearing the parties, comes to an erroneous decision either in law or fact on a matter within its jurisdiction, the Court having power of superintendence never interferes. The only mode of questioning the propriety of such a decision is by appeal''. In the Full Bench case Sukh Lal v. Tara Chand (I.L.R. 33 Cal. 68). Maclean, C.J., described the power of superintendence as somewhat analogous to that of the King''s Bench Division to interfere by mandamus, and in Kedar Nath v. Khettra Nath 6 C.L.J. 705, Mitra, J., said that it could only be exercised in cases of non-exercise or illegal exercise of jurisdiction.

I agree with Roe, J., in the Patna case that superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence, but is, as Norman, J., had said, a term having a legal force and signification. The general superintendence which this Court has over all jurisdiction subject to appeal, is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law. Thus in England a mandamus to hear and determine according to law does not mean that the inferior tribunal is ordered to give a correct decision, nor does prohibition lie to correct a wrong decision on the merits. The limits put upon appeals by the Indian Legislature are a part of the judicial system which it is just as necessary for this Court to enforce u/s 107 as any other feature of that system Upon the Indian cases, however, I doubt whether sufficient attention has been paid to the fact that as regards Magistrates in particular, the King''s Bench in England has made extensive use of the writ of certiorari to bring up and quash convictions. Prohibition and mandamus are not, I think, the sole forms of superintendence which an Indian Court should bear in mind as a guide to the character of the power conferred by Section 15 of the Act of 1861. Defects of jurisdiction, fraud on the part of prosecutor and error on the face of the proceedings are all good grounds for certiorari. Thus in R. v. John Smith 8 T.R. 588, where the evidence was set out in the conviction or order and it appeared that there was no evidence proper to be considered by the Magistrates in support of a point material to the conviction, the conviction was quashed.

* * * * * *

The limit set to the right of appeal is not a limit to all remedy against usurpation of authority.

The famous expression that the learned Chief Justice used in that case that superintendence was intended to keep the Subordinate Courts within the "bounds" of their authority did fire off many other decisions, although Rankin, C.J., set aside the conviction in that case

where a revolver was very much involved. Since then we find use of the word "bounds" in this connection whenever we have to discuss the question of our superintendence over other Courts. The next stage was reached in Section 224(2) of the Government of India Act, 1935. In that Act the old Section 107 underwent some metamorphosis. The marginal note became different to Section 224 of the Government of India Act, 1935, and read as "administrative functions of High Courts" as distinguished from the previous marginal note of the older Act "powers of High Courts with respect to Subordinate Courts". It had some important features apart from the significant change in the marginal note which, inter alia, seems to imply that the "superintendence" mentioned there was only administrative superintendence and not judicial superintendence. This Section 224 maintained the usual clauses about returns, rules and forms and tables of fees but had a Sub-section (2) which expressly declares "nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision". This is probably Lord Simon''s answer to Rankin C.J.''s decision and as the author of Government of India Act, 1935, it was Lord Simon''s way to overcome that decision. This Sub-section (2) of Section 224 of the Government of India Act, 1935, makes it abundantly clear that superintendence did not include a new jurisdiction for the High Court to question a judgment of any inferior Court which was not otherwise subject to appeal or revision. In other words, the long excursion into Crown proceedings and prerogative writs which Rankin, C.J., made in his celebrated judgment to introduce a kind of superintendence and to use his military parlance to keep the Subordinate Courts "within the bounds" and to prevent them from going "out of bounds" became meaningless. Next, Section 224 of the Government of India Act, 1935, also unmistakably points out that the superintendence is administrative in this context and not judicial by reason of the fact that it removed the power to transfer suits and appeals which used to be included in the procedure u/s 107 of the old Government of India Act, 1935. The last constitutional landmark is reached in our present Constitution in Article 227. The marginal note uses the word "power of superintendence over all Courts by the High Courts". It maintains the general structure of Section 224 of the Government of India Act, 1935, but with very important modifications. Section 224(2) of the Government of India Act, 1935, is deliberately omitted and in its place Article 227(4) provides that "nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces".

The lament of Rankin, C.J., in Manmatha Nath Biswas v. Emperor (Supra), and his elaborate discussion of the high prerogative writs of the Crown of England to introduce superintendence here in this Court were fully met by Article 226 of the Constitution which recognised the power of the High Court to issue writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari.

In the context, therefore, it is a plausible argument that superintendence under Article 227 of the Constitution is really in the administrative sense and not in the judicial sense. But on this point certain decisions of the Supreme Court have concluded the situation and it will be necessary to refer to them which we shall do very briefly. We propose to refer to four decisions of the Supreme Court: (1) Waryam Singh and Another Vs. Amarnath and Another, , (2) Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , (3) Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, , and (5) unreported decision of the Supreme Court in Nibaran Chandra Bag v. Mohendra Nath Ghughu Civil Appeals Nos. 105 and 100 of 1960 (judgment dated 28-11-62) blue print pp. 7 and 8.

In Waryam Singh and Another Vs. Amarnath and Another, , the Supreme Court comes to the conclusion after tracing the above constitutional history on the point that the present Article 227 has restored to the High Court the power of judicial superintendence it had u/s 15 of the High Courts'' Act, 1861, and Section 107 of the Govt. of India Act, 1915, but is careful to point out that the power of superintendence under this Article is to be exercised "sparingly" and only in appropriate cases in order to keep the Subordinate Courts within the "bounds" of their authority and not for correcting mere errors. The omission of Section 224(2) of the Government of India Act, 1935, in Article 227 of the Constitution was regarded as significant in restoring the power of judicial superintendence to the High Court. The contention at the Bar before us, however, has been that the new Article 226 of the Constitution explains the omission of the provision previously contained in Section 224(2) of the Government of India Act, 1935. We are, however, bound by the decision of the Supreme Court and cannot now reconsider the position and give effect to this contention of the argument advanced on behalf of the Petitioners.

In the second case of Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , it is laid down that the question whether or not any rules of natural justice had been contravened should not be decided under any preconceived notions but in the light of statutory rules and provisions. But where no such rules which could be said to have been contravened by a tribunal are brought to the notice of the Court, it is no ground to interfere either under Article 226 or 227 of the Constitution simply because the tribunal held a view of the matter in the light of the statute which is not acceptable to the Court. It is said there at page 413 that the powers of judicial interference under Article 227 of the Constitution are not greater than the powers under Article 226 of the Constitution and the following observation was made:

Under Article 226, the power of interference may extend to quashing the impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in this case, either under Article 226 or 227 of the Constitution, was not justified.

The third case of the Supreme Court is Satyanarayan Laxminarayan Hedge and Ors. v. Mallikarjun Bhavannappa Tirumale (Supra). There again the question of jurisdiction under Article 226 of the Constitution came for consideration by the Supreme Court and there at page 142 of that report the following observation was made:

Article 227 corresponds to Section 107 of the Government of India Act, 1915. The scope of that section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdetion or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything, it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision u/s 115 of the CPC or under Article 227.

Curiously enough, the judgment according to the authorised report in (Supra), does not at all contain the above observation. There being this conflict, this Court naturally has to proceed on the basis of the version of the judgment in the authorised report.

The latest pronouncement of the Supreme Court to which our attention was drawn is Nibaran Chandra Bag v. Mdhendra Nath Ghughu is yet unreported and this judgment was delivered by the Supreme Court on November 28, 1962. At page 4 of the blue print of that report, the Supreme Court observed:

The jurisdiction conferred by that Article is not by any means appellate in its nature for correcting errors in the decisions of Subordinate Courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority, vide Nagendra Bora v. Commissioner, Hills Division (Supra).

Again at page 7 of the blue print of the judgment, the Supreme Court observed:

Even assuming that the Revenue Tribunals erred in their interpretation of the compromise, it could not be a ground on which their finding could be set aside under Article 227, in view of the fact that the compromise was but one of the several items of evidence on which the finding was based. If thus there was material, the order could not be characterised as perverse to permit of interrence. We, therefore, consider that there was no justification to interfere with this concurrent finding of the Revenue Tribunals.

The power of superintendence under Article 227 of the Constitution will be better preserved if this power is not confused with the ordinary appellate and revisional powers under the Civil and Criminal Procedure Codes on the one hand, including such revisional powers as u/s 115 of the CPC relating to the exercise of jurisdiction by the Subordinate Courts or Section 439 of the Code of Criminal Procedure and, on the other hand, the judicial superintendence granted by the Constitution under such constitutional provisions as the present Articles 226 and 228 of the Constitution. To use the powers of superintendence under Article 227 of the Constitution in such a manner as to make it co-extensive and competitive with powers granted under the Civil and Criminal Procedure Codes and under Articles 226 and 228 of the Constitution would be most unfortunate. I should like to think that if Article 227 of the Constitution still leaves judicial superintendence to the High Court thereunder as it must now be recognised having regard to the decisions just discussed, then such judicial superintendence should be of that residual character which is not otherwise covered by the Civil and Criminal Procedure Codes or by other Articles of the Constitution like Articles 226 and 228. I am refraining from using the words "bounds" because it is not a term of precise significance in jurisprudence. If the word "bounds" is intended to mean jurisdiction of the Subordinate Courts, then such questions of failure of jurisdiction or excess or improper use of jurisdiction can always be amply corrected under the Civil and Criminal Procedure Codes as well as under Article 226 of the Constitution by the writs. Then there would be no point in the present context of the Constitution with Articles 226 and 228 of the Constitution to give further competitive powers to the High Court in respect of judicial as opposed to administrative superintendence. Where the High Court cannot reach the Subordinate Courts for correction either under the ordinary Civil or Criminal Procedure Codes or under Article 226 or Article 228 of the Constitution, then it is, I prefer to think, that the ultimate residuary jurisdiction of superintendence under Article 227 of the Constitution should be invoked and not otherwise. That is how I should like to understand the salutary principle laid down by the Supreme Court in the decision quoted above that this jurisdiction under Article 227 must be exercised "rarely" and "sparingly". Disregard of this fact today shows that this Article 227 is being indiscriminately used as a kind of appellate and revisional Court in respect of orders of subordinate Courts which would easily have been covered by other appropriate remedies under the ordinary law as well as under other specific Articles of the Constitution.

On the facts and circumstances of the present case before us, this Court, on the principles discussed above, is of the opinion that it appropriately comes within the ambit of Article 227 of the Constitution.

For the reasons stated in this judgment, the petition must fail and the Rule is discharged.

There will be no order as to costs.

Rule discharged.

Laik, J.—Estates (lands in popular phraseology), whose birth convulsions (acquisitions) have not subsided as yet, continue in shaping and reshaping even today and in rapid transitions, not because of lava-beds, marching seas, or grinding glaciers and also not because of volcanic infernos but because of successive invasions of the property rights of the citizens of our country and its proposed reforms at different stages with a purpose to achieve the objective of establishing a socialistic pattern of society in the respective States within the meaning of the directive principles contained in Articles 38 and 39 of our Constitution.

It is the same hands which tore open the earth to get at the minerals; which befouled oceans, rivers, lakes; tanks and fisheries; the same hands which today threaten to devastate the globe with war and whose fingers are already scratching at the sky and polluting the atmosphere ; have produced this piece of legislation, namely, the West Bengal Estates Acquisition Act, 1953 (W.B. Act I of 1954) (hereinafter stated for brevity''s sake as "the Bengal Act" or "the impugned Act" or simply "the Act").

Without repeating the broad features of the Act (done by my learned brother in his judgment, just now completely delivered) which has been passed mainly with the object of making provisions for the imposition of limits on the quantity of land that may be held by a person and in order to bring about an equitable distribution of land between the tillers of the soil and the landless people and though one cannot expect an absolute perspicuity in an enactment, it may be said that the Act is admittedly incomplete and ineffective as a whole, because no provision has been made for redistribution of land after acquisition and for relief of debts of the tillers of the soil. It is, in other words, not a composite and com prehensive piece of legislation-only a means to an end-rather complementary to its sister Act (West Bengal Act No. X of 1956), viz., the Land Reforms Act.

Not only the argument at the Bar that by the impugned Act, the State became a big Khasmahal and the State Government became a super-zemindar, can be accepted in view of the Supreme Court decision in The State of Bihar Vs. Sir Kameshwar Singh, , but the argument, as will appear from the discussion hereafter, that the Government, after the date of vesting, became a giant feudal lord with a costly, cumbrous and unmanageable machinery with the result that the socalled honey, as imagined, could not at once and readily percolate down to the common people ; and even if few drops showed signs of percolation, they were lost in the intervening space between the act of collection and actual utilisation, just and equitable to all sections of society, called social justice,-is also challenged.

It is not disputed that land revenue worth crores of rupees is still unrealised and the annual costs and expenses incurred by the State Government due to the working of the Act exceeded the annual realisation of land revenue for several years and there is no permanent re-distribution of land as yet. It was again argued on behalf of the Government and by one or two learned Advocates on behalf of the Petitioners that the Permanent Settlement has ugly memories and under its deadweight the raiyats groaned while, according to the argument of the majority, the provisions of the Act seem to perpetuate the existing arrangement, viz., the Permanent Settlement under a false name, under a masquerade, the only difference being that under the feather-weight of the impugned Act, the raiyats and the tillers of the soil are now bleating. In my opinion both the laments, to quote Mr. J. Friendly, are middle-aged laments over an old grey mare, as it would be wholly wrong to think that there is age-long conflict between zemindars and raiyats.

These 50 revision cases come from five districts, viz., Birbhum, Malda, Twenty-four Parganas, Midnapore and Jalpaiguri, based on the theory of extinct (not diminished) middle, somewhat similar to a familiar and a facile observation in Africa of the existence of a conspicuous upper class and equally obvious labour class but of the total absence of middle class, which class alone made England so great.

All the Rules arise on the enquiry cases, started under the pivotal provision of the Act, viz., Section 5A (hereinafter stated to be the impugned section) after the vesting of the rights of the intermediaries in the State of West Bengal. Along with these, there were other 176 enquiry cases which were heard analogously before the Tribunals below. We have been informed by the learned Advocates appearing on behalf of the State Government that similar questions have been raised in 1,000 ready revision cases in this Court which are pending decision. We are also informed that in all the districts, instructions have been issued on behalf of the State Government to wait for this decision, because the attention of the Government was drawn to more than one lac and seventy-five thousand cases of transfers (stated to be "not bona fide") till March 31, 1963 (to be precise 1,78,653 cases), out of which a little over 5,000 cases have been disposed of.

As a reward of this piece of legislation, which is difficult to learn and not in all places easy to understand without risk of error, the authorities, it appears, have eminently succeeded in their part not only in stimulating litigations between the State Government, the zemindars, proprietors, tenure-holders of all classes, raiyats, under-raiyats, bargadars, simple occupants and even lessees and sublessees of mines and minerals of which we find there is superabundant" harvest but they are also greatly successful in helping for the arrears of cases to pile up in this Court.

The main argument in Civil Revision Case No. 189 of 1962 was advanced by the learned Advocate, Murari Mohan Dutt, with ability, followed by the learned Advocate, Mr. Ganendra Narayan Roy, with assiduity. There are eleven sets of learned Advocates in the other revision cases who also advanced with clarity (not always with brevity) special points of law on special facts arising in their respective cases. On behalf of the State Government, Mr. Nirmal Chandra Chakravarty, the learned Government Pleader, and Mr. Jogeswar Majumdar, the learned Additional Government Pleader, argued with fecundity and the learned Advocate, Mr. Hemendra Chandra Sen, argued with sagacity, the Government side being assisted by the learned Advocate, Mr. Bijon Bihari Mitter, with steadfast gravity. All the learned Advocates not only placed the available informations and the Rulings and assisted this Court with the best of their ability but struggled to methodise the most material parts and the provisions of the impugned Act, particularly Section 5A thereof, and examined the points and advanced new interpretations which have been subject of great controversy and investigated with patience the difficulties which might attain it, suggested means of obviating them and in proposing them from the whole, a set of interpretations for carrying into execution the intention of Section 5A of the Act, so as to secure justice in a Social Welfare Legislation to all the parties including the State Government, and to prevent, if possible, the abuses which existed or may be apprehended in future.

There are different types of orders passed by the Tribunals below which are the subject-matters of challenge in these revision cases. These orders are classified into two broad divisions: (1) where transfers held to be "not bona fide" and (2) where they are held to be "bonafide". Within the classification of the orders holding transfers to be "not bona fide", there are again three types. The first type of order was "not bona fide and transfer stands cancelled". The second type was a mere declaration that the "transfer was not made with a bona fide intention" and no further order of cancellation was passed. The third and last type is where the transfers were held "partly not bona fide and partly bona fide" and no further order or direction, consequential or otherwise, was passed.

Within the other broad division of the orders holding transfers to be "bona fide", there are again four types of orders. The first type was a pure declaration of a transfer to be bona fide and nothing more. The second type was that besides the above declaration of bona fide, there appeared also a direction that the "transferred land would be taken into consideration for calculation". The third type of order was a declaration of transfer to be bona fide but with further direction of "proportionate deduction from the transferor''s land, which would vest in the Government", but without any finding as to whether the transferee has retained the transferred land. The fourth and the last type was the said declaration, with the direction of proportionate deduction, coupled with the finding that the transferee has retained the transferred land but without any evidence to support the said finding.

In only one case there is order of remand by the Appellate Tribunal for fresh enquiry by the Revenue Officer.

In these cases the nature and class of transferred land were of different varieties: (1) raiyati, (2) agricultural (whether raiyati or not, is not mentioned), (3) both agricultural and non-agricultural lands together, in one document, (4) non-agricultural lands only, (5) homestead lands, (6) Chukhani lands in the district of Jalpaiguri, (7) Khasmahal lands and (8) Khas and tenanted lands together in one document.

There are again four types of documents by which the lands are purported to be transferred: (1) deed of sale (Kobala), (2) deed of gift, (3) deed of settlement (Nirupanpatra) and (4) Heba.

The relationship between the transferors and the transferees in these cases differ widely, viz., transfers from (1) father to sons jointly (major and minor both), (2) father to minor son or sons, (3) mother to sons, (4) grandfather to grandsons, (5) husband to his brother-in-law (wife''s brother) (a ceremonious relation according to the Petitioners, whereas, according to the learned Advocates for the State Government, a very tainted relation), (6) husband to his grand-brother-in-law (i.e., brother-in-law''s brother-in-law), (7) landlord to his Gomostha or to his Ammuktear and, thereafter, from Gomostha to his relations and, lastly, from his relations to the strangers.

In all these cases, a little less than six hundred acres of lands in area is involved. According to the learned Government Pleader, the total cultivated area in West Bengal is about one crore and twenty-eight lacs acres of land, that is, about twenty thousand square miles, out of which the total agricultural lands became available to the State by the grace of the Act up to April 30, 1963, is live lacs twenty-six thousand three hundred and twenty-seven acres, out of which, again, a little over three lacs acres in area has been taken possession of by the State Government. It cannot be denied that in all countries of the world the possession of land even now bestows on the possessor a considerable respectability. Though physical coverage may be a misleading index in certain circumstances but solemn undertaking was given in the floor of Assembly that "plan would be taken for twelve lacs of landless agriculturists (Bargadars, Adhiars and others) immediately after the acquisition". While this charitable view is an agreeable aspect of life but it is argued that the same is not mercifully free from the atmosphere of nagging suspicion.

At the threshold of the discussion, to appreciate the principal arguments, noticed by my learned brother in his masterly dissertation, characteristic of him and following the tradition of the Supreme Court in several decisions, arising out of the Acts abolishing the estates of the zemindars from different States, and remembering that there is no pronouncement by the Supreme Court on the Bengal Act as yet and in view of the preamble in the Bill, which was published on May 5, 1953, that is, the date from which the impugned transfers u/s 5A are subject-matter of challenge, which inter alia states whereas the "Permanent Settlement" (Bengal Regulation 1 of 1793) made in May, 1793, has outlived its usefulness and has become unsuitable for the needs of a progressive society and whereas it is expedient in the public interest to provide for the State acquisition of estates, of the rights of intermediaries therein and of certain rights of raiyats and under-raiyats, and also in view of the statement of objects and reasons, viz. (1) to eliminate the interests of all zemindars and other intermediaries and (2) to permit the intermediaries to retain possession of their khas lands up to certain limits and to treat them as tenants and in order to convey in a brief space as to why a uniform land Code for the whole of India is necessary, it will be convenient to refer to the background of the land tenures in Bengal (a classical land of the Permanent Settlement) and to refer to the changes of the nature and relationship between the zemindars, proprietors, tenure-holders, raiyats and under-raiyats and to succinctly trace the legislative history down to the abolition of Permanent Settlement or to the present time, reserving certain important points for subsequent separate notice.

The tenure of land in India, specially in Bengal, is a subject which has generally been supposed to be one of considerable difficulty. It has been on more than one occasion the source of earnest discussion conducted with a certain degree of asperity by the holders of different and sometimes contrary opinions, each of whom produced probable arguments in support of the correctness of his particular views. Much of the difference of opinion and much of the difficulty which has surrounded the main questions in these cases and the questions raised but not decided may perhaps be traced to the fact that sufficient account has not been taken by the respective authorities responsible for the Act and particularly Section 5A thereof.

Institutions of estates, tenures, under-tenures, etc. which in some places were originally complete in all their parts and the subsequent development of which was perfect had in other places an incomplete existence originally or were afterwards but imperfectly developed. Their growth was impaired or even wholly stopped and this at different stages in different places. At one place the plant was stunted and dwarfed, at other places they were wholly rooted out by waves of circumstances which swept with varying violence all over the country, sometimes extending their influence directly into very remote channel, at other times producing indirect results by forcing before them the remnant of similar waves that had preceded them. Though on the surface it appears that many of the disputes have been occasioned by applying to all parts of the country facts and laws which are only true to particular tracts and by including in conclusions drawn from one sort of tenure, other tenures not exactly similar in their nature, but at the bottom it is not so.

It will here be convenient to take a brief retrospect of the nature of proprietary right to the land from early times. According to the picture of Hindu society presented by the Code of Manu, drawn up probably in the 9th century before Christ, the Government was vested with the power of an absolute monarch acting under the council of Brahmins. Though the King was the Lord paramount, the Code, being a system of plain principles, does not distinctly lay down to whom the soil belonged. The cultivators'' proprietary right has, on the other hand, been deduced from the text-"Land is the property of him who cut away the wood" and in the words of commentator of the Code, "who tilled and cleared it". This is not merely a question of historical justice but it appears that the present slogan that the land should belong to the tiller of the soil appears to be a borrowed slogan.

In the palmy period of the Mahommedan administration in Bengal, the land was plenty, more than there were men to till it. There was competition amongst the zemindars for raiyats, not amongst the raiyats for land. In Akbar''s time the zemindars of Bengal were numerous, rich and powerful. They existed in their own rights and privileges before the Mahommedan conquest. Without any formal acknowledgment they acquired stability by prescription. The Subadari of Bengal was euphemistically called the "Paradise of Nations". The persons blissfully ignorant of the legislative history often confounded the Bengal zemindars with the class of petty middlemen, ignorant and useless, if not absolutely pernicious, compared by O''Kinky with the "wretched Irish Cottiers" in his Notes, for the abolition of whose interests the State became so very anxious.

At that time no man would undertake to acquire a plot of land unless he was to enjoy it forever. Hence permanent tenants arose, giving rise to "Khudkasht raiyats" often confounded again with village zemindars and proprietors whose lands they cultivated. Mr. Holt Mackenzie was rightly of opinion that the residents (Khudkasht raiyats) of Bengal were of the same class with the village zemindars of the North-Western Province. In some parts of the country, for example, in Bundelkhund, the village zemindars, though petty half-tamed kings, were the actual cultivators and their zemindary was not a nursery of indolence. Wanchoo J. in the Supreme Court case of Smt. Padmini Kunwar Ju Sahiba Vs. State of Vindhya Pradesh (Now Madhya Pradesh), , however, observed that the zemindar in Bundelkhund State is a petty village official for the purpose of collecting rents and has no interest in the lands for which he collects rents.

Profane history relates that during the famine in Egypt, Joseph obtained from the Egyptians a surrender of their right in the land to the King on condition to supply their food. On the approach of the invading armies or marauding free-booters the zemindars were called upon to supply their wants to save the village from indiscriminate pillage and even by borrowing from the "Mahajans". It is argued by some of the learned Advocates that by the Act their clients'' rights in the lands have purported to vest in the State Government but without sober account of conditions affording the wherewithal to assuage their needs.

The province of Bengal, Behar and Orissa was the first territory in India in which the solution of the problem as to the property law in the morning of the British rule was attempted. According to them, a class of persons was called "zemindars" as to whose position and rights there was then, and has ever since been, the greatest doubt and discussion. In course of time, there also came to exist between the Sovereign and village zemindars a class of aristocracy, acquiring local position and importance, known as Rajas and Talukdars (later on called proprietors). The new status of zemindars, which Lord Cornwallis gave them by the Permanent Settlement in 1793, effacted many of the traces of their previous state of things. The old foundations were buried beneath the said structure, which in their turn are now re-buried beneath the impugned Act, which the Bill itself signifies. History, it is true, repeats itself but not in this way and it would be an extraordinary repetition of the concurrence of those accidental circumstances.

Mr. Shore in his able Minutes says that the origin of the proprietary and hereditary rights of the zemindars is uncertain. One is reminded of his sagacious remarks that the relation of a zemindar to the Government and of a raiyat to a zemindar was neither that of a proprietor nor a vassal, but a compound of both and he suggested that the compound relation be reduced to the simple relation of a landlord and a tenant. Mr. Harrington gave Lord Cornwallis in 1789 the following definition of a Bengal zemindar: "the landholder of a peculiar description not definable by any single term", but nonetheless, a "receiver of the territorial revenue of the State from the raiyats and other under-tenants of lands". This status of a zemindar being a receiver or assignee of a land revenue, it is argued, has laid confusion in some of the recent decisions. But it is no longer open to the learned Advocates to argue that, because of the Supreme Court decision in Purushothaman Nambudiri Vs. The State of Kerala, . The Bengal zemindars (called boys of Lord Clive), thus called into being in name and upon paper, were declared proprietors of the "estates", but they were not wholly distinct from the "village zemindars" (Talukdars) of Upper India.

This chapter may be closed with mention of varieties of tenures and grants in respect of the land. In advocating the necessity for interposition of tenure-holders between the zemindars and the raiyats, Mr. Shore pointed out that the situation of things found, "was singularly confused". In Bengal, a variety of tenures held under the zemindars, to which too little respect was paid by the Authorities, was known by different names in different districts such as, Taluks (Shikami and Mazkuri), Putni, Darputni, Sepatni, Istimrari, Mokrari, Darmokrari, Nakdi, etc. There were also service tenures, e.g. Ghatwali, Chowkidari Chakran and other Chakran tenancies such as "Begar" or simple Chakran with or without rent. Ijaradars also sprang up in certain cases, e.g., when the Government let out Khasmahals to them on certain conditions. In the Supreme Court case of Padmini (Supra), however, the learned Judge Wanchoo, J. could not accept the principle that the Ijaradar is generally a lessee of land.

In addition to the tenures mentioned above there was also a variety of tenures differently called in different districts of Bengal, before its partition in the year 1947, such as Jotedars and Gantidars in some districts, Howlas and Nimhawlas in Buckergunj. Tappas in Chittagong, etc. They were like "Sarbarahakari" tenures in Cuttack (Orissa).

Many tenures which were originally created in favour of cultivating raiyats have in the course of time came to be treated as intermediate interests between the proprietors and the raiyats, the original grantee or lessee having sublet and converted himself into a middle man. The Permanent Settlement destroyed most customary tenures of Bengal and in some cases land was designated from the use made of it, for example, Bastu, Udbastu, Dihi, Nij Jote (own cultivation), Khas Khamar, Khamar, etc. "BasatProja" and "Chandina" are important non-agricultural tenancies still now.

There were "Bhaiyachara tenures" and Mandidari tenures (chiefly seen in Bundelkhund) similar to Pattidari tenures in Northwestern Province except in few particulars which are discussed in some of the Supreme Court cases. There were also Lamberdars and Mokhias. Inferior or sub-proprietary raiyats though have almost the same place in the structures of the land system throughout India are known by various names in different parts of the country.

Similarly, there were various types of grants connected with the land system of the country, such as by the proprietors to the Idols, Brahmins, Pirs, Fakirs and Bhats called Debattar, Brahmattar, Pirottar. Mafi grants, etc. which are not very much different from the State to State. There were also grants of Jagir (conditional and unconditional) and Marwat grants, subject-matter of some of the Supreme Court cases.

There were in India (as in England) incorporeal rights in land which are not by any means varied or intricate, for example, Jalkar (right of fishery), Phalkar (right of gathering the fruit), Banker (right of cutting wood in jungle). But some of the "Sairati interests" in Section 5 of the Act appear to be intricate. "Sir", which is the Sanskrit word for a plough and previously a Sir land was created by continuous cultivation for 12 years, has been compared with hats, bazars, etc.

Such is the sketch of the meaning of different expressions viz., zemindars, raiyats and of the different tenures as usually understood and acknowledged by the people for centuries and I mention all those only for the purpose of showing that the Act has not always kept them in mind and not for the purpose of affirming the continuation of the florescence of all the varieties.

Coming now to the legislative history of the administration of the land system and different grades of sub-holdings in West Bengal, I at once feel transported back to the days of "John Company". After the first Judicial Regulation in August 21, 1772, came the proclamation, articles of which were enacted in Regulation I of 1793 (Permanent Settlement Regulation)-Settlements (quinquennial and annual) intervening mean time. From this time the said history is found in twelve Regulations and Acts. Permanent Settlement was introduced in most parts of Madras between 1802 and 1805. Putni Regulation of 1819 (Reg. VIII) was the first long step in the system of sub-holding, giving rise to conflicting interests for which the legislature stepped in and the Rent Act (Act X of 1859) was passed, substantive provision of which was re-enacted by Act VIII of 1869. Rent, a fruit of the peace and though its germ originated from the Village Communities in our country and is said by the British to be a moderation of fiscal demands, is nonetheless a sure landmark in the history of the tenancy law in all countries of the world. The object of the Rent Act was stated by Mr. Curria, who introduced the Bill in the Council, to re-enact in distinct form several rights of raiyats, namely, rates of rent, occupancy of land, etc. This Act which in effect divides between the raiyats having rights of occupancy and merely temporary tenants was originally extended to North-Western Province and subsequently was made applicable to other provinces including Bengal. Tenure under this Act was held to be equivalent to a tenancy. It was followed by Act Xl of 1859 encouraging absenteeism to landlords which even the Irish landlords did not receive in their country. Came thereafter in the year 1868 Act VII (The Bengal Land Revenue Sales Act), Section 1 of which, for the first time defined the words "proprietor", "revenue", "estate" and "tenure".

In 1871, the Permanent Settlement of all estates has been suspended pending a reconsideration of the entire question. From the year 1862 to 1872 the average number of estates on the revenue roll was about 2 lacs and 20 thousands. "Estates" by then became more extended and complex institutions, not like those found in the Institute of Timur or in Ayeni Akbari. In 1862 the Presidencies of Madras and Bombay were not generally in a condition which would warrant a Permanent Settlement. In 1867 the province of Cuttack was not permanently settled.

Appeared in the year 1876, Act VII (Land Registration Act), Section 3(2) of which defines "estate" as follows:

(a) any land subject to the payment of land revenue, either immediately or prospectively, for the discharge of which a separate engagement has been entered into with Government ;

(b) any land which is entered on the revenue roll as separately assessed with land revenue (whether the amount of such assessment be payable immediately or prospectively), although no engagement has been entered into with Government for the amount of revenue so separately assessed upon it as a whole ;

(c) any land being the property of Government of which the Board shall have directed the separate entry on the general register hereinafter mentioned.

In dealing with the Orissa Act in Raja Sri Sailendra Narayan Bhanja Deo Vs. The State of Orissa, , S.R. Das, J. held that the estate once entered in the register prepared and kept under Act VII of 1876, no question whether they are validly entered or not, would become the estate under Article 31A of the Constitution.

On July 21, 1880, the report of the Rent Commission, a result of a prolonged research into the conditions of zemindars and raiyats of Bengal, product of a hard labour of a glorious band of distinguished Councillors, was published.

This takes us straight to the Bengal Tenancy Act in the year 1885, which gives definite and tangible shape to the law in respect of agrarian lands. The said Act is still in force, the general object of which was the protection of raiyats. The word "estate" has been defined in Section 3(4) of the said Act to mean

land included under one entry in any of the general registers of revenue paying lands and revenue free lands prepared and maintained under the law for the time being in force by the Collector of a district and includes Government khas mahals and revenue free lands not entered in any register.

It might be noted with satisfaction that the Bengal Tenancy Act, with only two major amendments in 1928 and 1938 which has been in operation for about 75 years, more than justified the expectation of the eminent compilers that its working has been in all respects most satisfactory.

In the year 1936, the Bengal Land Assessment Act defined "estates" and referred to estates as laid down in the Manual of waste lands'' and rent paying tenures (such as Baranagor in Dihi Panchannagram, collective names of 55 villages in the District of 24-Parganas originally granted by Mir Zaffar as pension to Lord Clive). There are again temporary settled estates in Sunderban and other areas comparison of which might be made with Sections 5(2) and 5(3) of Regulation VII of 1822.

On November 5, 1938, the Land Revenue Commission was set up. Sir Francis Floud, a Briton, as its Chairman, towards the evening of the days of the British rule in India, to be precise, in the year 1940, published the Report and gave out the view that the zemindary system was no longer suited to the country. The said report was not unanimous and it recommended acquisition of interest of all "rent-receivers". Another Briton, Sir Archibald Rowland, towards the midnight of the British Rule (1945) as a Chairman of the. Bengal Administrative Enquiry Committee was of the opinion "that the present system of land tenure was out-moded and was on obstacle to the maximum utilisation of the land." This is echoed and reechoed during the debates in the Assembly at the time of passing the impugned Act which was placed before us. It is quickly forgotten emphasised the learned Advocate, that the pusillanimous politicians,who criticised the Permanent Settlement as a caricature of English landed system, first opened the door to the raiyats and under-raiyats and, incited by some hope, treated the raiyats sponged who were given occasional squeeze at pleasure to make them squeak. The Agrarian Reforms Committee was of similar opinion. In 1947 as a condition for independence of India, Bengal had to be partitioned and emerged the eruncated Bengal, viz., State of West Bengal.

Followed in quick succession, somewhat similar legislations in different States, which along with other allied Acts fell to be considered by the Supreme Court. Those would be dealt with by me in proper places. To Madras belongs the dubious honour of being the first to invade the Assembly and in the year 1948, the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948,-Act 26 of 1948-hereinafter referred to as "the Madras Act" was passed, followed by Rajasthan Ordinance No. 27 of 1948. Bombay follows Madras by passing the Talukdari Tenure Abolition Act, 1949-Act 62 of 1949-hereinafter referred to as the "Bombay Act". In this year Marwar Land Revenue Act, 1949 (hereinafter stated as Marwar Act) and another Rajasthan Ordinance No. 15 of 1949 were also passed.

On January 26, 1950, the Constitution of India came into force. Three other States, viz., Bihar, Madhya Pradesh and Uttar Pradesh, passed legislations, viz., Bihar Land Reforms Act, 1950-Act 30 of 1950, which received the assent of the President on Sept. 11 1950 (hereinafter referred to as "the Bihar Act"), Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated lands) Act, 1950-Act 1 of 1951 (hereinafter referred to as "the M.I. Act") and Uttar Pradesh Zemindary Abolition and Land Reforms Act, 1950-Act 1 of 1951 (hereinafter referred to as "the U.P. Act"). Though not a legislation for abolition of estates, West Bengal enacted Bargadars Act in this year, viz., 1950, with a view to regulating the relationship between the owner of the land and his bargadar who cultivates his owner''s lands.

In the year 1951, States of Orissa and Assam (which were previously parts of Bengal for a very long time) passed Acts, viz., Orissa Estates Abolition Act, 1951-Act 1 of 1952 (hereinafter referred to as "the Orissa Act") which came into force on February 9, 1952, and Assam Estates Acquisition of Zemindary Act, 1951 (hereinafter referred to as "the Assam Act"). In June, 1951, came in the first amendment of the Constitution introducing Articles 31A and 31B therein. Vindhya Pradesh did not lag behind and passed in the next year, Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952-Act 11 of 1952 (hereinafter referred to as "the Vindhya Pradesh Act"). The Principal Rajasthan Act, viz., Rajasthan Land Reforms and Resumption of Jagirs Act, 1952-Act 6 of 1952 (hereinafter referred to as the "Rajasthan Act") was also passed. Another Act for U.P., viz., Uttar Pradesh Land Tenures (Regulation of Transfer) Act, 1952-Act 15 of 1952 (hereinafter referred to as "U.P. Act of 1952") came in the Statute Book.

On May 2, 1952, the three decisions of the Supreme Court in the cases of Darbhanga (Infra), Visweswar (Supra), and Suriya Pal (Infra) came out on the three Acts, viz., Bihar Act, M.P. Act and U.P. Act respectively. It was held by majority that Sections 4(b) and 23(f) of the Bihar Act are unconstitutional.

In this state of affairs came in West Bengal the Bill (already referred to) on May 5, 1953, stated to be the day of crisis, for the acquisition of estates which is the date of the commencement of the condemned period, mentioned in Section 5A of the Act. Almost, at about 320 years ago (May, 1633) 8 Englishmen as Company''s agents came to Bengal from the coast of Orissa to discover what opportunities for trade Bengal could offer.

With the Bill, the intermediaries, like the people, with the sight of those Englishmen, threw up their hands in pious horror and exclaimed: Oh ! Tempos ! Oh ! Moses ! Though it is stated at the Bar but it is now almost forgotten that Murshidkuli Khan put aside the zemindars and others who stayed between the Government and the cultivators and managed the collection of revenue entirely by his own officers. As the policy of necessary disillusionment was announced in the Bill, with no attempt to lessen the inevitable sense of outrage, the Petitioners were shocked to the core by this revelation ; as age-long beliefs are difficult to shed and particularly by its application, not with tact and gentleness, people with small area of agricultural lands were notably distressed for the coming experience of the bleakness of reality, languished on a diet of unpalatable facts.

The Bill was introduced in the Assembly on May 7, and was discussed up to May 9, 1953, and then it was referred to the Select Committee. Some of the legislators said that it was a big experiment which would produce epoch-making changes. Others said that the Permanent Settlement, being the hoary institution, was bad in design and has now become archaic and has become weeded and is preventing the growth of the people of West Bengal. A third group pleaded that feudalism must make place for a Welfare Society, which some of the learned Advocates, appearing before us for the raiyats, bitterly criticised and stated that it must be then a society of landless and consequently of food-less and clothless persons. The last group gloated that the Permanent Settlement is a "sweeping enactment" which is again nothing but a copy from Colebrook. On November 12, 1953, the Report of the Joint Select Committee was published embodying amendments. Debates followed with the remarks "every item, every sentence, every word, every comma, every semi-colon have been considered". The Bill tried to squirm with safety, but without dignity, according to some of the learned Advocates with the new crop of hyperbolic promises. Meantime another Supreme Court judgment in the case of Gajapati (Infra on the Orissa Act was delivered on May 29, 1953.

On February 12, 1954, the Bill was passed with the assurance that "the State Government has acquired extensive experience of land reforms for the last seven years" (1947). The Bengal Act (already referred to at the beginning) came into force on that date after having received the assent of the President. Before this, the State Government of West Bengal must have known the views of the Supreme Court in the aforesaid four cases and also the other case of Ettyapuram (Infra) on the Madras Act, which Act was put in the ninth Schedule of the Constitution, the validity of which could not be challenged.

Chapter VI of the Bengal Act was not brought into force simultaneously with its enactment as the learned Government Pleader stated that his client was in doubt as to the acquisition of the rights of the raiyats because of the constitutional provision. The said day of twelfth and the month of February except the year, which is 1686, synchronise with the date and month of Charnock''s capture of the Thana Forts, followed in the year 1698 by the Company''s acquisition of the Talukdari rights of three villages, viz., Kalikata, Sutanutti and Govindpur, from the zemindars only for a sum of 300 sicca rupees.

In this year, viz., 1954, Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954-Act 15 of 1954 (hereinafter referred to as "Himachal Pradesh Act") was passed. Two other Acts from Uttar Pradesh and Bombay, viz., Uttar Pradesh Rampur Thikadari and Pattadari Abolition Act, 1954 (hereinafter referred to as "U.P. Act of 1954") was passed and Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1954-Act 39 of 1954 (hereinafter referred to as the "Bombay Act of 1954") came into force on August 1, 1954. The Assam Act was also amended by Act 6 of 1954-hereinafter referred to as "the Assam Amendment Act".

The Bengal Act conforms to the pattern usually followed in the said legislative measures of the agrarian reforms of the said States. The whole object of the Bengal Act also is to abolish the zemindars and to distribute lands to the tillers or the cultivators of the soil. The Government thought it necessary to have the Act for making provisions for the imposition of limits on the amount of land that may be held by a person in order to bring about an equitable distribution of lands among the landless people.

Mahajan J. in dealing with the M.P. Act in the Supreme Court case of Visweshwar Supra at p. 1029, held "the main purpose of the Act is bring the actual tillers of the soil in direct contact with the State by elimination of intermediary-holders" and further at page 1036, "to eliminate the intermediaries, as in the view of the Government this is for the welfare of the society as a whole". Ragubar Dayal J. in the Supreme Court case of Madhorao Infra at p. 129, dealing with the same Act, observed "this Act purports to deal with the rights of the proprietors and not directly with the rights of other persons in the States, etc." Sinha C.J., dealing again with the same Act, in the Supreme Court case of Yakinuddin (Infra) observed, "the scheme of the Act is that it provided for acquisition by the State of all interest in the estate of the proprietor himself or an intermediary except the tiller of the soil."

In dealing with the Orissa Act, S.R. Das, J., as his Lordship then was, in the Supreme Court case of Biswambhar Infra at p. 855, held on behalf of the majority "the object and purpose of the Act is to abolish all the right, title and interest in the land of intermediaries by whatever name known". In dealing with the same Act again, B.P. Sinha C.J. in the case of Bimal Sinha Infra at p. 1915, observed at page 1915 of Kumar Bimal Chandra Sinha Vs. State of Orissa, that "the Act was intended to abolish all proprietors, sub-proprietors, tenure-holders and under-tenure-holders with a variety of names but did not touch the interest of raiyat".

Next day, i.e., on February 13, 1954, when Warren Hastings was returning to Calcutta with "the British Empire in India" but in the year 1772, the State Government returned with the bill of embargo, introducing Section 5A, in the Bengal Act. The statements of objects and reasons of the same are only a short summary of the section itself.

Though more than a month before, the Supreme Court declared that there was no rational basis for differentiation by which the Jagirdars were prevented to collect rents from the tenants and held that the Rajasthan Ordinances were void because of Article 14 of the Constitution, on April 23, 1954, the impugned section, singularly opaque and elusive, viz., Section 5A of the Act, an anxious provision hovering between life and death, with the assent of the President, was born in somewhat obscure circumstances, on April 23, 1954, with retrospective effect.

Section 5A runs as follows:

(1) The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 5th day of May, 1953, and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was not bona fide.

(2) If after such enquiry the State Government finds that such transfer was not bona fide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which if was made or purported to have been made:

Provided that, subject to such cancellation, nothing in this Sub-section shall be deemed to affect any rights which the transferor or the transferee may otherwise have against each other.

(3) If after such enquiry the State Government finds that transfer was bona fide, it shall make an order to that effect and thereupon the following consequences shall ensue, namely:

(i) the land shall, without prejudice to any right which the transferor or the transferee may have against each other, be deemed to be the land of the transferee for the purpose of this Act ;

(ii) if any such land or any part thereof is retained by the transferee under the provisions of this chapter, such land or such part thereof may be taken into account in calculating the land which may be retained by the transferor under this chapter as if such land or such part thereof had never been transferred and were retained by the transferor or chosen by him as land to be retained by him.

(4) The State Government may delegate all or any of its powers under this section to such officers in its service as it may deem fit.

(5) The procedure to be followed in such enquiry shall be such as may be prescribed: Provided that

(i) 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 ;

(ii) in conducting such enquiry the State Government and any officer, to whom any powers have been delegated under Sub-section (4), shall have all the powers of a Civil Court for the purpose of taking evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents and shall be deemed to be a Civil Court within the meaning of Sections 480, 481 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).

(6) An appeal against any order passed by the State Government under Sub-section (2) or Sub-section (3), or passed under any of those Sub-sections as read with Sub-section (4) by an officer to whom powers have been delegated under Sub-section (4), if preferred within sixty days of such order, or within sixty days from the date of appointment of the Special Judge, whichever is later, shall lie to a Special Judge (being a person who is or has been a District Judge or an Additional District Judge) appointed by the State Government for the purpose of this section and such Special Judge shall dispose of the appeal according to the prescribed procedure.

(7) In this section,-

(i) a transfer shall be held to be not bona fide if it was made principally or partially with the object of increasing the amount of land which a person may retain under this chapter or principally or partially with the object of increasing the amount of compensation payable under Chapter III or Chapter IV ;

(ii) a transfer in favour of one of more of the following relatives of the transferor, that is to say,-a wife, a husband, a child, a grand-child, a parent, a grand-parent, a brother, a sister, a brother''s son, a sister''s son, a daughter''s husband, a son''s wife, a wife''s brother or sister, or a brother''s wife, made between the 5th day of May, 1953, and the date of vesting shall be presumed to be not bona fide until the contrary is proved:

Provided that no such presumption shall be made in respect of transfer of land by an intermediary if the aggregate area of such land owned by the intermediary at any time between the 5th day of May, 1953 and the date of transfer did not exceed twenty acres in extent in the case of non-agricultural land and twenty-five acres in extent in the case of agricultural land ;

(iii) "transfer" means a transfer by sale, mortgage, lease, exchange or gift ;

(iv) "transferor" and "transferee" include the successors in interest of a transferor or a transferee.

This section was brought in, to put in restriction on certain transfers and to make enquiries in respect of transfers made between May 5, 1953 and the date of vesting. Though ever since the days of British rule the problem of land has presented powers to the economists and the legislators, but no solution appears to be ideal. Though it was argued that the section did not reflect the mood of the country, still the Government by introducing Section 5A thought that it would not be too late for it to unscramble most of the omelettes.

On May 28, 1954, the Rules made under the Act (hereinafter referred to as the Rules) were first published. On October 2, 1954, Section 5B was inserted by the Second Amendment Act with retrospective effect from June 1 of the said year. After the Bombay Act was declared valid in Gohil case (Infra), by, the Supreme Court on October 11, 1954, in view of Article 31B and the ninth Schedule on December 7 of the same year, the Bill for the West Bengal Land Reforms Act (referred to in the beginning of the judgment) was introduced to follow up the acquisition under the impugned Act. On December 9, 1954, Rule 3A was introduced providing the procedure for enquiry u/s 5A(1).

April 15, 1955, corresponding to 1st of Baisakh, 1362 B.S., was declared to be the date of vesting u/s 4 of the Bengal Act (the same date of vesting as in the Assam Act). The lineage of the zemindars who had survived the commotion for more than 150 years has at long last come to an end. Tenure-holders are also squeezed out. On this date the rights of all the intermediaries in all the estates vested in the Government at one and the same time. It appears that the State Government of West Bengal did not follow the warning given by the Supreme Court in the said Biswambhar case Infra at p. 855:

it would have been a colossal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once.

The learned Government Pleader does not know whether the requisite finance has been arranged by the State Government all at once but he recalls with satisfaction that in the year 1766, the year following the grant of Dewani, Lord Clive (as he took his place in 1772 in the Irish Peerage as "Baron Clive of Plassey") sat as Dewan at the annual "Punnayaha" ceremony, commencing the collection of revenue. The learned Government Pleader again does not know whether the same course has been followed by his client on 1st of Baisakh, 1362 B.S., which date will go down in the history of West Bengal and is likely to be remembered by the posterity.

On April 27, 1955, by the fourth amendment of the Constitution, the object of which was to kill the zemindars constitutionally and to validate the acquisition of zemindaries or abolition of the Permanent Settlement without any interference from the Courts, the expression "raiyats and under-raiyats" was inserted in Article 31A thereof. Further Acts were added in the ninth Schedule of the Constitution.

On September 22, 1955, the Bill for substituting Chap. VI regarding the rights of raiyats and under-raiyats under the Act was published. On November 25 of the said year, the whole of Chap. VI was substituted (again with the assent of the President). So far as the raiyats and under-raiyats are concerned this is one of the major amendments of the Act but it is submitted that no magnificent banquet is provided for them by this amendment. They possibly hoped to hear a careful diagnosis and an interesting prescription from the late Chief Minister Dr. B.C. Roy and also possibly the promise of a long life but instead they have been offered, as submitted, nothing but a death certificate. There may be arguments in favour of the policy (with which the Court is not concerned) which seeks to protect the actual tillers of the soil but there are none, known to the learned Advocates, which would justify the conversions of the raiyats, who are themselves cultivating the lands, into intermediaries.

On March 30, 1956, the West Bengal Land Reforms Act came in the Statute Book but, surprisingly enough, most of its provisions have not yet been enforced, except the chapter on Bargadars (repealing the said Bargadars Act) and certain other provisions, though 7 years have passed. It is submitted with great force that it is not known whether the legislature of any civilized country has mortgaged its future policy in this way and has bound the successive generations. In the. days of 1772 the Indian legislators were fond of binding posterities but that was so, because, to quote Mr. Field, "the members of the Company''s Government were new to legislation and State crafts". Though it is again submitted that a little servant now-a-days only seeks to make out His Master''s Voice, but it cannot be said that the legislative interlopers have trespassed the Assemblies and the parliamentary lepers have invaded the Lok Sabha. For this non-enforcement one is to keep at least one of his eyes always cocked on the Land Reforms Act. This Act again proposes to repeal the Bengal Tenancy Act which might have a feeling of gratuitous insult in the hands of the Land Reforms Act in two ways, viz., making it unjust and keeping it useless for years.

On April 9, 1956, the notification was issued u/s 49 of the Act vesting the rights of every raiyat and under-raiyat in all lands held by them free from all encumbrances. But it is interesting to note that the said Section 49 appears in Chap. VI of the Act, which chapter came into operation on the next day, viz., on April 10.

On April 10, 1956, there was a further notification u/s 5A(4) of the Act delegating all the powers of the State Government on four classes of officers u/s 5A. April 14, 1956, corresponding to 1st of Baisakh, 1363 B.S., was the fateful day, i.e., the date of vesting of the rights of the raiyats and under-raiyats in their lands. On January 9, 1958, by a notification under the Act all Settlement Officers and Revenue Officers were invested with all the powers of the Civil Court.

Meantime Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956-Act 13 of 1956 (hereinafter referred to as "Bombay Act of 1956") was passed, followed by Assam Fixation of Ceiling on Land Holdings Act, 1957-Act 1 of 1957 (hereinafter referred to as "Assam Act of 1957"). of course ceiling has a value so long there is a floor but not when it is razed. Punjab Resumption of Jagirs Act, 1957-Act 39 of 1957 (hereinafter referred to as "The Punjab Act") came little late in comparison with other States. The last Bombay Act, which was also considered by the Supreme Court, was Bombay Land Tenures Abolition Laws (Amendment) Act, 1958-Act 57 of 1958 (hereinafter referred to as "Bombay Act of 1958"). In this year the last U.P. Act considered by the Supreme Court is Act 14 of 1958 (hereinafter stated as "U.P. Act of 1958"). Bihar Land Reforms (Amendment) Act, 1959-Act 16 of 1959 (hereinafter stated to be "Bihar Act of 1959") came into force on May 15, 1959.

In dealing with the Bombay Act of 1956 with Act of 1948 Bhagawati J. in the Supreme Court case of Ram Ram Infra at p. 493 observed on November 18, 1958, that the Act was passed to achieve the objective of establishing a "socialistic pattern of society" in the State. Similarly Gajendragadkar J. observed in the Supreme Court case of Sonapur Tea (Infra) that the whole object of the Assam Act of 1957 is to abolish the intermediaries and leave the land either with the tillers or the cultivators. Lastly, Shah J. in dealing with the U.P. Act in the Supreme Court case of Singh (Infra) held that the intention of the legislature (primary objects as set out in the Assembly) is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of the intermediaries between the Government and the tiller of the soil. Thus it appears that the object of the different Acts of different States is practically the same with the object of the Bengal Act.

In 1961 State of Kerala passed Kerala Agrarian Relations Act, 1961-Act 4 of 1961 (hereinafter stated as Kerala Act) which also came up for consideration before the Supreme Court. To complete the picture, the West Bengal legislature passed on December 17, 1962, Bhudan Yagna Act, 1962, defining "landless persons" as persons owning land but not exceeding a limit mentioned in the said Act.

On May 6, 1963, Bill No. 26 of 1963 containing only three sections was introduced in the Lok Sabha for the seventeenth amendment of the Constitution proposing substitution of Sub-clause (a) of Clause 2 of Article 31A of the Constitution for amending the definition of the expression "estate" and for amendment of the ninth Schedule by addition of 124 more entries (Acts) therein. The statement of objects and reasons of the said Bill runs thus:

The Kerala Agrarian Relations Article 1965, was struck down by the Supreme Court in its application to raiyatari lands transferred from the State of Madras and Kerala. The Act was further struck down by the High Court of Kerala in its application to lands other than States in Malabar and Travancore. It was held that the provisions of the Act were violative of Articles 14, 19 and 31 of the Constitution and that the protection of Article 31A of the Constitution was not available to those lands, as they were not estates. (2) The protection of Article 31A is available only in respect of such tenures as were estates on the 26th January, 1950, when the Constitution came into force. The expression ''estate'' has been defined differently in different States and as a result of the transfer of the land from one State to another on account of the reorganisation of States, the expression has come to be defined differently in different parts of the same State. Moreover, many of the Land Reform enactments raised the lands which are not included in a State. It is, therefore, proposed to amend the definition of ''estate'' in Article 31A of the Constitution by including therein lands held under raiyatari settlement and also other lands in respect of which provisions are normally made for Land Reform enactments. It is also proposed to amend the ninth Schedule by including therein the said enactments relating to Land Reform in order to remove any uncertainty or doubt that may arise in regard to their validity. (3) The Bill seeks to achieve these objects.

Entry No. 138 is the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) and entry No. 139 is the West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956).

It is doubtful whether the Bill after becoming an Act, even without fulfilling the conditions of Article 368 of the Constitution, might be challenged as unconstitutional, as faintly suggested, on the ground that it is not permissible in this way to abridge the fundamental rights and thereby to amend Article 226 of the Constitution. Article 226, in my view, will be only incidentally affected and that will not be a bar. Doctrine of pith and substance in legislation might also be availed of against such challenge. Though there is an anomaly in the Constitution itself between the procedure for amendments of different rights, fundamental or otherwise, it might not again be easy to contend as sought to be done, that the Parliament of India is not empowered by Article 368 to make such amendments including those of fundamental rights. Such reforms, however, do not always upgrade the status of the principle of validating legislation, which is low among the approved methods of lawmaking.

One should not feel ashamed to distrust his own knowledge, as new enquiries always lead to new information ; but I doubt whether any parallel could be found in any country in the world to the changes which had taken place during the preceding 15 years in India as to the right of the citizens on their lands, both agricultural and non-agricultural.

Up to October 14, 1961, the impugned Act is amended ten times, details of which are given by my learned brother. One sensational instalment succeeds another in the gripping serial. Another Bill, published on June 22, 1963, is pending before the West Bengal Assembly seeking to amend the Act over again. Amendments of the Act apart, the Rules, some pragmatic, some departing from strict logic and sequence, were amended and/or substituted about 45 times during the period of ten years (12 times alone in the year 1961), besides the several orders and notifications issued under the Act. It is also remarkable that some Rules which are plainly of substantive laws are placed in the procedural portion. Some Rules again, which are fragmentary, were neither gathered together nor reduced to a shape. Seven or eight Ordinances also intervened. It is submitted that the architects of the first Bill would feel great difficulty in recognising the original structure of the Act in its enlarged modern edifice.

The Act, it thus appears, is one of the statutes, which the legislature chooses to tinker, adding a patch here, mending a leak there and plugging a loophole at a third place, but never wants to rebuild it from the ground up, which should have been done for a general overhaul. By defective draftsmanship and continued failure to correct it, various problems arise, only a few of which are noticed, which are necessary for the decision of these cases. Weeds have grown simply for the lack of good gardeners. The Act has by painful stages become an omnibus statute through changes and amendments. Since the number of its amendments is large and the issues involved complicated, the persons responsible for the Act should have amended in one or two or three instalments through comprehensive Bills. It is not a fair way of becoming statutory piecemeal by the relentless grinding (twice, thrice or more in a year) of hundreds of expensive legislative machines, composed of variety of organisations.

The vast areas enclosed by the Act are not being properly ploughed. It is fatal in an age of automaton, jet and supersonic air planes and atomic power and pervasive Governmental concern, With almost all the affairs of men.

of course, it is true that there might be problems the wisest legislature might not have anticipated, but the common unlettered men, including the raiyats and under-raiyats, should have some rest at least and should not be within constant change, worry and costs of litigation. Uncertain ideas of improvement, it appears, had been too ambitiously conceived, hastily adopted, unsteadily pursued and finally abandoned from some supposed defects which might have been foreseen at the commencement or afterwards remedied with care. New measures again had been conceived, added, substituted and followed, but relinquished with equal facility. Even in terms of awareness many half measures which have been initiated half-heartedly were carried into effect only by half. The learned Advocates repeat that it is the unsatisfactory nature of the impact and the fruit of a union between half-absorbed liberal education and a new species of time and motion study.

Having regard to the rude and unsettled state of things which prevailed in the country immediately on the withdrawal of the British rule it will readily be conceived that the task of ascertaining the respective rights of the citizens over their landed property, which is not always one of easy accomplishment, has occasionally been followed by peculiar results, when ascertaining too often, involved determining what was practically indeterminate; and the precision of ideas, indispensable for such determination in giving fixity instead of being variable and uncertain, was not known to the respective authorities. It is always exceedingly difficult to steer a safe course between, on the one hand, existing perpetuating variances which depended not upon plain principles and, on the other hand, destroying by a general and sweeping measure essential distinctions understood and acknowledged by the people and recognised as such for centuries. To say that this difficult task has been accomplished by the impugned Act, wholly without mistake or error, would be to assert what is not true, but it may with safety be anticipated that the mistakes would be few in comparison with the arduousness of the work to be done, that none should have been more ready to see and acknowledge error than the State Government, which might be led to commit it through its officers, that misconception might arise when questions of right, almost evenly balanced, depended for their solution upon arguments of policy and expediency, that where it was possible to do so without greater mischief, the State Government has ever been ready to retrace its steps on discovering that an erroneous or inexpedient course had been pursued, and that the cardinal mistake has been avoided and individual rights have been respected and protected so far as was consistent with the law and with that degree of uniformity which is indispensable for the creation and existence of a uniform land system for the whole of India.

In connection with what has gone before and what follows and in violent disagreement with those who hold the contrary opinion, I am asked to be convinced that with the Government, policy should not be the sole legislative power with modern appliances for legislation.

Section 5A has been challenged broadly in two ways-constitutionally and statutorily. Within the division of the constitutional challenge the first branch of attack from different learned Advocates is:

(a) The interests of raiyats and under-raiyats are not "estates" within the meaning of Article 31A of the Constitution.

(b) Their interests are not also rights in relation to an estate within the meaning of Article 31A(2)(b) of the Constitution.

(c) As the intermediaries had ceased to exist as a consequence of the first notification under Sections 4 and 5 of the Act, there were no estates and therefore the raiyats and under-raiyats cannot be intermediaries so that their interest can turn into estates.

(d) There must remain intermediaries in all estates in all cases when the interest of raiyats and under-raiyats was sought to be upgraded to those of the intermediaries.

(e) The raiyats and under-raiyats do not at all satisfy the test of "other intermediaries".

(f) Though the Act as a whole is not challenged, Section 5A itself can be challenged as ultra vires the Constitution even if the said section is a part of the Act itself and Article 31A of the Constitution does not save it.

(g) The provisions of Section 5A are too drastic and infringe Articles 14, 19 and 31 of the Constitution and are therefore inconsistent with Part III of the Constitution and therefore the impugned section is ultra vires the Constitution.

In support of the said arguments by the learned Advocates or by way of answer on behalf of the Government, more than three dozen decisions of Supreme Court for more than ten years from May 2, 1952 to November 7, 1962, which I have chronologically placed, viz.,

The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, , Vuweshwar Rao v. State of Madhya Pradesh (Visweshwar case) (Supra), Raja Suriya Pal v. State of U.P. (Suriya Pal case) [1952] S.C.R. 1956 , Chhotabhai Jethabai Patel and Co. Vs. The State of Madhya Pradesh, , K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, , Biswambhar Singh and Others Vs. The State of Orissa and Another, . Zamindar of Ettayapuram Vs. The State of Madras, , The State of Rajasthan Vs. Rao Manohar Singhji, , Dhirubha Devisingh Gohil Vs. The State of Bombay, , Maharaj Umeg Singh and Others Vs. The State of Bombay and Others, , Thakur Amar Singhji Vs. State of Rajasthan, , The State of Madras and Another Vs. V. Srinivasa Ayyangar, , Ananda Behera and Another Vs. The State of Orissa and Another, , Raja S.N. Bhanja Deo v. State of Orissa (Kanika Raj case) (Supra), Raja Bhairebendra Narayan Bhup Vs. The State of Assam, , Shantabai Vs. State of Bombay and Others, , Vinod Kumar and Others Vs. State of Himachal Pradesh, , Thakur Raghubir Singh and Others Vs. The State of Ajmer (Now Rajasthan) and Others, , Sri Ram Ram Narain Medhi Vs. The State of Bombay, , Atma Ram Vs. The State of Punjab and Others, , Atma Ram Vs. The State of Punjab and Others, , Mahadeo Vs. The State of Bombay, , Rajah Velugoti Venkata Sesha Varda Raja Gopala Krishna Yachandra Bahadur Kumar Rajah, Venkatagiri Vs. The State of Andhra Pradesh, , The State of Vindhya Pradesh (Now Madhya Pradesh) Vs. Moradhwaj Singh and Others, , Jadab Singh and Others Vs. The Himachal Pradesh Administration and Another, , Thakur Manmohan Deo and Another Vs. The State of Bihar and Others, , Smt. Padmini Saheba v. State of Vindhya Pradesh (Padmini case) (Supra), Sonapur Tea Co. v. Mussmt. Nazirunnessa (Sonapur Tea case) (Supra), State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, , State of Bihar and Another Vs. Umesh Jha, , State of U.P. v. T.N. Singh (Singh case) (Supra), Subhan v. Madho Rao (Madho Rao case) (Supra), Purushothaman Nambudri v. State of Kerala (Purushothaman case) (Supra), Karimbil Kunhikoman Vs. State of Kerala, , Maharana Shri Jayvantsinghji Ranmalsinghji etc. Vs. The State of Gujarat, , Sakal Papers (P) Ltd. and Others Vs. The Union of India (UOI), , Bokaro and Ramgur Ltd. Vs. The State of Bihar and Another, , Bimal Chandra Sinha v. State of Orissa (Bimal Sinha case) (Supra), Surajnath Ahir and Others Vs. Prithinath Singh and Others, , State of Madhya Pradesh v. Yakinuddin (Yakinuddin case) (Supra), Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others, .

are noticed from more than a dozen States, which I arrange geographically, viz.,

Bihar, Madhya Pradesh, Vindhya Pradesh, Uttar Pradesh, Orissa, Madras, Kerala, Rajasthan, Ajmere, Bombay, Gujrat, Assam, Himachal Pradesh and Punjab.

in respect of two dozens of Acts and Ordinances-already referred to by me in the portion of legislative history along with certain other legislations, viz., Central Provinces Rent Revenue Act, 1917, Mineral Concession Rules, 1949, Madras Land Estates Act, 1908, Rajasthan Ordinance No. 10 of 1940 and Punjab Land Security Act, 1953, as amended by Act 11 of 1955, by almost all the learned Judges of the Supreme Court beginning from Patanjali Shastri C.J. up to Mudholkar J.

To start with, the Bihar Act with its amendment was considered in the cases of Thakur Manmohan Deo and Another Vs. The State of Bihar and Others, , State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, . State of Bihar and Another Vs. Umesh Jha, , Bokaro and Ramgur Ltd. Vs. The State of Bihar and Another, and Suraj Ahir (Supra), Madhya Pradesh Act was considered in the cases of Vishweshwar (Supra), Chhota Bhai Patel (Supra), Shantabai (Supra), Mahadeo (Supra), Madhorao (Supra) and Yakinuddin (Supra). Vindhya Pradesh Act was considered in the cases of Moradhwaj (Supra) and Padmini (Supra). Uttar Pradesh Act was considered in the case of Suriya Pal (Supra). The said Act with its amendment of 1958 and the U.P. Act of 1954 were considered in the cases of Raghubar Swamp (Supra), Singh (Supra) and Mahendra (Supra). The Orissa Act was considered in the cases of Gajapati (Supra), Bishwambhar (Supra), Chilka Lake (Supra), Kanika Raj (Supra) and Bimal Sinha (Supra).

The Madras Act was considered in the cases of Ettyapuram (Supra) and Srinivasa (Supra). The Madras Act with Mineral Concession Rules, 1939, was considered in the case of Venkata Giri (Supra), coming from Andhra Pradesh. The Kerala Act was considered in the cases of Purushothaman (Supra) and Kunhi Koman (Supra). Rajasthan Act with the Ordinances were considered in the cases of Monohar (Supra), and Thakur Amar Singh (Supra). Ajmere Act was considered in the case of Thakur Raghubir Singh (Supra). The three Bombay Acts were considered in the case of Gohil Umed Singh (Supra), Ram Ram (Supra) and Jadab (Supra). The Bombay Act of 1958 was considered in the case of Jayvant (Supra) coming from Gujarat. Assam Act with its amendment and Assam Act of 1956 and the Regulations were considered in the cases of Bhairebendra (Supra) and Sonarpur Tea (Supra). The Himachal Pradesh Act was considered in the case of Vinode (Supra). Punjab Act with its amendment and Punjab Land Security Act were considered in the cases of Atma Ram (Supra) and Amar Sarjit (Supra).

I do not profess to know which of these Acts in different States produce the most just results but I do know this that there can be no valid reason for having so many, with the attendant uncertainties, costs of litigation between the parties, burdens on the Courts and consequent piling up of arrear work and wild differences in results as amongst zemindars, proprietors and tenure-holders, i.e., unadulterated intermediaries with the adulterated ones, viz., raiyats and under-raiyats, whose needs and conduct are almost the same in each State. I do affirm, therefore, that a uniform Land Code for the whole of India is a necessity.

To finish with the references, the decisions of Motipur Zamindari Co. Ltd. Vs. The State of Bihar and Another, , The State of Bihar Vs. Rani Sonabati Kumari, , Raja Sailendra Narayan Bhanj Deo Vs. Kumar Jagat Kishore Prasad Narayan Singh, , and Krishna Prasad and Others Vs. Gauri Kumari Devi, , though all of them arose on "Bihar Act", are left out of consideration as they do not touch the arguments put forward in these cases. Similarly, the cases of State of Andhra Pradesh Vs. Duvvuru Balarami Reddy, , and the case of Gopal Krishna v. Krishna Yachandra AIR [1963] S.C. 842 , dealing with the Madras Act are also left out of consideration. The case of Sunkavilli Suranna and Others Vs. Goli Sathiraju and Others, , dealing with Madras Land Estates Act, 1908, in which Shah J. discussed the rights of raiyats in zemindaries and observed that the lands in dispute were within a permanently settled zemindary under Madras Regulation 25 of 1802 is not of much importance. His Lordship observed (82), at page 660 that there is no substantial analogy between an English tenant and an Indian "Ryot", for the right of ryots came into existence mostly not under any letting of the Government or zemindar but independently of them, according to Indian traditions, generally acquired by cultivators entering upon land, improving it and making it productive. As there is no discussion, either on acquisition or vesting of the rights of the raiyats arising out of Pepsu Tenancy and Agricultural Lands Act 13 of 1955 in the case of Shivdev Singh Vs. The State of Punjab, the same is also left out of consideration. Though the case of Satinder Singh and Others Vs. Amrao Singh and Others, , arose on East Punjab Requisition and Acquisition of Immoveable Property Act, 1953, the decision really turned on the compensation and the rate of interest, which points are not the subject-matter of discussion in these cases. In the case of Sarwarlal and Others Vs. The State of Hyderabad, , arising on a Hyderabad Regulation, abolishing Jagirs, his lordship Shah J. discussed the doctrine of invalidity of legislative provisions, enacted in colourable exercise of authority.

The various decisions of the different High Courts on the Estates Acquisition or similar Acts are also left out of consideration as many of them circle around the Supreme Court decisions and as some of them are stated to have added only to the same view.

Some other learned Advocates submitted that we must not at all look to any one of the aforesaid decisions as they deal not with the impugned Act but with other statutes of different States being (i) wholly dissimilar, and also on the ground (ii) that in many of the Supreme Court decisions the earlier decisions are not at all noted. I am afraid that the submission on the first ground is a wide submission which cannot be accepted for these reasons: -(a) The meaning and interpretation of the expressions such as "estates", etc., in Article 31A of the Constitution have been laid down in most of the above decisions of the Supreme Court irrespective of the context of either a different statute or from a different State, (b) some of the decisions from other States, particularly from Bihar, Orissa and part of Madras, not only refer to but rely on the statutes of Bengal which are still the law in force in the local areas of those States, (c) the objects of different statutes are also similar which I have already noticed in the part dealing with the legislative history and (d) the Supreme Court itself described in more than one decision as "similar legislations" of different States.

To cite a few illustrations, I may point out that in discussing the Madhya Pradesh Act, it is noticed in Vishweshwar (Supra) case, that Bihar and U.P. also passed legislations for abolition of zemindary. On the same Act the learned Chief Justice, in the case of Yakinuddin (Supra), concluded by observing that these cases are ''equally governed" by several decisions of the Supreme Court which have overruled the earlier decision in the case of Chota Bhai Patel (Supra).

Considering the Vindhya Pradesh Act in Morodhwaj (Supra) case and relying on the cases of Gajapati (Supra), and Raghubir (Supra) and after observing that the constitutionality of the said Act cannot be challenged as a whole in view of Article 31A of the Constitution and in view of the decisions of the Supreme Court "relating to similar legislations in the States of Bihar, M.P., U.P., Orissa, Rajasthan, Assam, Bombay, Ajmere and Punjab" the learned Judge refers to several Supreme Court decisions, viz., cases of Darbhanga (Supra), Vishweshwar (Supra), Suriya Pal, (Supra), Thakur Amar Singh (Supra), Kanika Raj (Supra), Ram Ram (Supra), and Atma Ram (Supra). In dealing with the same Act in the case of Padmini (Supra), the same learned Judge held at page 912 that this case is similar to the case put forward in Thakur Amar Singh (Supra), from Rajasthan and specially dealt with the meaning of the expressions "zemindar" and "Ijara".

Dealing with the Orissa Act, it is held in the case of Gajapati (Supra) at page 4 that the said Act, so far as its main features are concerned, follows the pattern of similar statutes and similar legislative measures passed by Bihar, Uttar Pradesh and Madhya Pradesh Legislative Assemblies or other States. Dealing with the same Act, the learned C.J. in Kanika Raj (Supra) case observed at page 75 that the law in the local area for the time being in force was the Bengal Land Registration Act (Act 7 of 1876) which I have dealt with in the chapter of legislative history. Bengal Regulation Nos. 48 of 1793, 7 of 1800 and 12 of 1805 were also discussed for arriving at the decision. Dealing with the same Act the same learned C.J. observed at pages 1914 and 1915 of Kumar Bimal Chandra Sinha Vs. State of Orissa, :

Thus the process of infeudation and sub-infeudation which has been similar in all places where the Permanent Settlement took place, that is to say, in Bengal, Bihar and Orissa and Madras and Andhra Pradesh, has led to the coming into existence of proprietors, with their estates, sub-proprietors under them tenure-holders and under-tenure-holders and ultimately the tiller of the soil, the raiyat whose unit of interest is a ''holding''.

In Ettyapuram (Supra) case, it is observed that the Madras Act 26 of 1948 is similar in type to the Bihar Act. It further appears from the minutes of Messrs. Shore, Harrington, Mackenzie and of Lord Moira that Akbar''s Plan in the mode of realising the rent or revenue by employing Government officers to collect it direct from the cultivators has been tried by the English in the Madras "Ryotwari System", which system has been discussed in this decision.

On the Acts of Rajasthan and Marwar in the case of Thakur Amar Singh (Supra), the Administration Report of Jaipur, 1947-48, was referred to at page 353 which states that suba is analogous to the "Istimrara tenure" in other parts of the State. In dealing with the Bombay Act of 1956, in the case of Ram Ram (Supra), after discussing several tenures including the Ryotwari tenure at Madras the learned Judge at page 503 observed that the Bombay Acts followed a common pattern, viz., the abolition of land tenures.

B.P. Sinha J., as his Lordship then was, in deciding the case of Atma Ram (Supra), on the Punjab Act referred to the intermediaries in Eastern India and said at page 761:

Thus in Eastern India, the interest of intermediaries between the proprietor of an ''estate'' at the top and the actual tiller of the soil at the bottom is known as that of a ''tenure-holder'', and the interest of tenants other than tenure-holders is given the generic name of a ''holding''. A holding in Eastern India thus indicates the interest of the actual tiller of the soil-raiyat and under-raiyat-unlike the holding in Punjab where, as indicated above, it signifies the interest of a holder of a share in an estate. Thus, holdings in Punjab are vertical divisions of an estate ; whereas in Eastern India, they represent a horizontal division connoting a lesser quality of an estate in land than the interest of a tenure-holder in his tenure or of a land-owner in his estate or portion in his estate... In Punjab, as there was no permanent settlement of revenue as in Bengal, Bihar, Orissa and other parts of Eastern India, the unit of revenue assessment has been the village.

Section 4(h) of Bihar Act, as amended in 1959, which empowers the Collector to annul the anticipatory transfers of land, designed to defeat the object of the Bihar Act, has been held in the case of Umesh Jha (Supra) that the same (almost similar to Section 5A of the Bengal Act) is protected by Article 31A of the Constitution.

Gajendragadkar J., dealing with the Assam Act in the case of Sonapur Tea (Supra), observed that the Act conforms to the pattern, usually followed, in legislative measures of agrarian reforms of other States.

In dealing with the Kerala Act, in the case of Kunhi Koman (Supra), it is observed that the Ryotwary Pattadars of South Kanara were in the same position of the Ryotwary Pattadars of the rest of the State of Madras. His Lordship further holds that in Uttar Pradesh fixed-rate tenants in permanently settled districts were also intermediaries.

It appears from the minutes of Colebrook that the system of Permanent Settlement was also sought to be introduced into the then province of Oudh but with slight modifications. The first submission on this point therefore fails.

On the second submission that the earlier decisions of Supreme Court are not noticed in the later Supreme Court decisions, I may point out that in the case of Gajapati (Supra), from Orissa, the law in the local area was Madras Estates Act, 1908, as amended by the Madras Act, 1947. In this case Suriya Pal''s (Supra) decision from U.P. was followed. Darbhanga (Supra) case was distinguished in Gohil''s case (Supra). In the case of Umeg Singh (Supra), though an argument was noticed in the body of the judgment, on Article 31A(2)(a) of the Constitution neither any discussion nor any finding was found thereafter in the same. In the case of Thakur Amar Singh (Supra), the decision in the case of Suriya Pal (Supra), was referred to on the point of legislative competence and Vishwambhar''s (Supra), case was approved. Chilka Lake (Supra) case, dealing with the Orissa Act and deciding the dispute about fishery right, merely distinguished the case of Chhotabhai Patel (Supra), but did not overrule the same. In the case of Vinode (Supra), arising out of Himachal Pradesh Act, though the argument at page 175 of the report was observed, viz., that the natural apprehension of the land-owners, that the provisions are too drastic and are inconsistent with Part III of the Constitution and thereby infringed Articles 14, 19 or 31, but it does not appear that the said point was decided. Thakur Raghubir Singh''s case (Supra), arising out of Ajmere Act, referrred to the case of Umesh Jah (Supra) on Bihar Act.

The case of Ram Ram (Supra), affirmed Darbhanga case (Supra), and relied on Kanika Raj (Supra) case. The case of Mahadeo. (Supra), followed the cases of Chilka Lake (Supra), and Shantabai (Supra), and the weight and the effect of the said Chhotabhai Patel''s case (Supra), were nullified. The case of Morodhwaj (Supra), relied on the cases of Gajapati (Supra), and Thakur Raghubir (Supra). In the case of Pathrole Ghatwali (Supra), the ratio of the decision in Suriya Pal''s case (Supra), was applied. Padmini''s case (Supra), followed the case of Thakur Amar Singh (Supra).

Sonapur Tea case (Supra) followed the three decisions of Thakur Raghubir Singh (Supra) Ram Ram (Supra), and Atma Ram (Supra). In the case of Umesh Jha (Supra), the principles of Thakur Raghubir Singh''s case (Supra), were applied. In the case of Purushothaman. (Supra), the majority view approved the decisions of Ram Ram (Supra), and Atma Ram (Supra) and considered the cases of Mahadeo (Supra) and Rameshwar Protap (Supra). On the same date and the same Bench deciding the case of Kunhi Koman (Supra), the majority view refers to only Rameshwar Protap''s case (Supra), and no other. In the case of Madho Rao (Supra), the view of Modhalkar J, as a Judge of the High Court was not accepted by the Supreme Court. In Jayvant''s case (Supra), Modhalkar J., then as a Judge of the Supreme Court, was in the minority. In the case of Yakinuddin (Supra), it was observed that the cases of Shantabai (Supra), and Mahadeo (Supra); should have been followed. It is submitted that Mahadeo''s case (Supra), nullifies Chhotabhai Patel''s case (Supra), which was expressly overruled and the case of Chilka Lake (Supra), was not considered at all. Chilka Lake case (Supra) only distinguished Chhotabhai Patel''s case (Supra), and did not overrule the same and that Mahadeo''s case (Supra), followed the case of Chilka Lake (Supra). The second submission, therefore, is not wholly correct.

At the threshold of discussion lies the question as to the progress or of connotation of the expression "Estate" in Article 31A, and to determine it, it is necessary to trace in broad outline the origin and evaluation of an estate in Bengal. In large measure, the answer will depend on the meaning of the expression "Estate".

According to Baden Powel, who is regarded as a great authority on the land system in India and who is referred to in at least half a dozen of decisions in the Supreme Court, viz., Visweshwar (Supra), Thakur Amar Singh (Supra), Ram Ram (Supra), Mahadeo (Supra), and others, the "Estates" of local Hindu Rajas of Bengal in consequence of their defeat were directly assessed by the conqueror which became the "Exchequer Domains".

Mr. Field speaks of the origin of the estates in India as follows:

The Englishmen gentlemen, not thoroughly conversant with the technicalities of the system with law or real property in this country, which is perhaps the most technical the world has ever seen, possessed nevertheless marvellous energy, great ability and honesty of purpose and these gentlemen, some of them at least had an ''Estate'' in England and those who are themselves possessed of no landed property, had been familiar from their boyhood with the estates of the English aristocracy and gentry.

Having a patrotic respect for the blessings enjoyed by the Englishmen and for the institutions which were the source of them, it was believed that the same blessings would be secured for India, if the same institutions like estates were also planted here. After the Permanent Settlement was introduced, on default of payment of revenue, the zemindar''s "estate" would have to be put to auction by the Government and the purchaser obtained a statutory title as the Landed Estates Court in Ireland and Courts in Australia and West Indies used to give similar title in similar circumstances. But this was not so with the principality of Protapaditya or with the vast "estate" of Sitaram Rai.

As a matter of fact, no one ever did or can own land even in this statutory title in any country, that is, in the sense of absolute ownership, as a man may have in moveable property. No man, however feloniously inclined, can run away with an acre of land. The Maratha freebooters and the Pindari marauders were alike powerless to carry it off.

Though the erroneous notion, too generally entertained amongst the then administrators of the country upon the subject of the property in land, one is to get rid of the idea of absolute ownership, which is quite unknown to the English law. He can only hold an "estate" in them. There is reason to believe that not only the first administrators of the Company''s territory in India but some of the administrators up to recent times also had similar vague notions about the subject of the landed property in this country. A very strong indication of this is the continuation of the use of the word "estate". The dimensions of this interest in the estate varied in England very considerably, for example, an estate for life, an estatetail, an estate in fee simple, none of which phrases carries the idea of owning the land itself. The Supreme Court qualified the variations of the interest of the raiyats as vertical, horizontal, qualitative and quantitative. The way in which it was applied in India by the first administrators is continued to be applied down to the present time. Had the authorities started with the right use of the word "estate" from the beginning, they would not have searched for an ownership in the Estate Acquisition Enactments in almost all the States, which the British never found because no such thing ever existed.

The constitutional challenge on (a) to (f) above may better be answered from the principles of the several Supreme Court decisions, some of which are noticed below and I scarcely require more to state by way of chapter and verse.

Mahajan J., dealing with the Madras Act in the case of Vishweshwar (Supra), held to the effect that as the villages or Mahals being not local equivalent of the expression "estate" they are excluded from the ambit of Article 31A, but Articles 31B and 31(4) stand in the way as hurdles.

Venkatarama Ayyar J., dealing with the Rajasthan Act in the case of Thakur Amar Singh (Supra), discussed about the meaning of the word "estate" at pages 350 to 353, some of which were acquired from Moghal Emperors on Ijara. At pages 354 and 355 his Lordship observed to the effect that the estate means an area for which there is a separate record of rights and concludes at page 359 that the disputed estates would be estates according to the extended connotation and therefore they fall within Article 31A.

The same learned Judge, dealing with the Madras Act in the case of Srinivasa (Supra), made a distinction between the estates held by land-holders (similar to the proprietors in the present case) and the rights and interest held by other persons in or over estates at page 917. On the issue of notification u/s 4 of the Madras Act his Lordship held that the entire estate would vest and on the issue of notification u/s 5 of the said Act the rights "in or over the estate" shall vest. These two sections, according to his Lordship, dealt with two distinct matters which may respectively be described in broad terms as ownership of the estates and rights "in or over estates" not amounting to ownership, and these two categories, according to the learned Judge are mutually exclusive. S.R. Das C.J. held on the Orissa Act in Kanika Raj case (Supra), that the estate once entered in the register, prepared and kept under the Bengal Land Registration Act (Act 7 of 1876), referred to earlier by me, whether they were validly entered or not, would be an estate under Article 31A.

In discussing Assam Land Regulation 1 of 1886 along with the Assam Act, the same learned Chief Justice in the case of Bhairebendra (Supra), observed that the definition of estate in the said Regulation is an inclusive one and not exhaustive (compare Section 3(4) of the Bengal Tenancy Act, 1885).

Bhagwati J. on the Bombay Act in the case of Ram Ram (Supra), held to the effect that in Madras the raiyats held estates and at Bombay

the general prevailing tenure was raiyatwari tenure where the raiyat or the tenant had the right of an occupant in his holding (see page 501 of 1959 (Supp.) 1 S.C.R. 489).

At page 505 it is further held that "the holdings of the landholders in raiyatwari villages apart from others were also styled as "estates" or "holdings".

On the Punjab Act, B.P. Sinha J., in Atma Ram case (Supra) held to the effect that Article 31A(2) defines what the expression "estate" as used in Article 31A means. At page 762 his Lordship held:

As the connotation of the term ''estate'' was different in different parts of the country, the expression ''estate'' described in Clause (2) of Article 31A has been so broadly defined as to cover all estates in the country and to cover all possible kinds of rights in estates as shown by Sub-clause (b) of Clause (2) of Article 31A....

The expression ''rights'' in relation to an estate has been given an all-inclusive meaning''... AND at P. 763, "deliberately made as wide as they could be, in order to take in all kinds of rights-quantitative and qualitative-in an area co-extensive with an estate or a portion thereof."

Further on the same page his Lordship held:

Knowing, as we do, that a raiyat''s or an under-raiyat''s holding generally is not-co-extensive with the area of an entire estate but only small portions thereof, it would, in our opinion, be unreasonable to hold that the makers of the Constitution were using the expression ''estate'' or ''rights in an estate'' in such a restricted sense.

Lastly, at page 765 his Lordship concluded: "The expression ''rights in relation to an estate'' again has been used in a very comprehensive sense of including not only the interests of proprietors or sub-proprietors but also of lower grade tenants like raiyats or under-raiyats" and the expression "other intermediaries" thus clearly shows that the enumeration of intermediaries was only illustrative but not exhaustive.

Gajendragadkar J., on the Assam Act of 1957 in Sonapur Tea case (Supra) following three other decisions, held at p. 730 of Sonapur Tea Co., Ltd. Vs. Must. Mazirunnessa, :

Rights in relation to an estate in Article 31A(2)(b) is of a very wide amplitude and as such the context requires that it must receive a very liberal interpretation.

Dasgupta J., in the case of Rameshwar Pratap (Supra) on the Bihar Act, 1959, noticed the definition of the word "estate" in Bihar Tenancy Act (almost similar to the Tenancy Acts of Bengal), and held that the rights of raiyats are rights in an estate and are therefore saved by Article 31A. The same argument as in the instant cases (see paragraphs at page 1653 of State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, that a raiyat is not an intermediary and hence his rights are not rights in relation to an estate was noted. It was also argued there, as in the instant cases, that on the date the amending Act was passed, the intermediaries had ceased to exist and there were no "estates" which also ceased to exist as a consequence of the notification issued under the parent Act (see p. 393 of State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, ). The answer given by his Lordship was that-

we have to forget what happens in consequence of the unamended section ; we shall have to project ourselves to the date of the parent Act for the retrospective operation. We will have to take note of the fact that the provisions of the amending Act were made retrospective with effect from the date of the original enactment.

His Lordship also noticed that raiyats and under-raiyats ordinarily are not intermediaries but the Fourth Amendment of the Constitution, noticed heretofore, converted them as such when most of the States passed the Estates Acquisition Laws.

Gajendragadkar J., again in the case of Purushothaman (Supra), on the Kerala Act accepted the concession at page 704 of Purushothaman Nambudiri Vs. The State of Kerala, that the expression "rights in relation to an estate" is very broad and it includes the interest of raiyat and also of under-raiyat. It has been given an all-inclusive meaning-horizontal as well as vertical division of an estate ; qualitative and quantitative. His Lordship held that Clause (a) and (b) of Article 31A(2) should not be read together and the question what the "estate" is has been deliberately left rather elastic. Again at page 705 his Lordship holds that-

we are not prepared to adopt the narrow construction that the estate must always and in every case represent the estate held by zemindars or other similar intermediaries....

In considering the question from the point of view, viz., that where there is no zemindary and where the relevant existing law does not contain the definition of an estate, his Lordship held that it was not necessary that there must be intermediary in an estate in all cases. It is further held:

There are many holders of the small estates who cultivate their lands without any intermediary whatever.

Wanchoo J. found in Kunhi Koman case (Supra) in which only Article 31A(2) of the Constitution fell for consideration and not Article 31A(1), on the said Kerala Act, that the lands held by raiyatwari pattadars are not estates within the meaning of the Madras Land Act of 1908, which was the existing law there and therefore the Kerala Act was not saved by Article 31A(2)(a). His Lordship further observed that as the expression "intermediary" occurs only in Clause (b) and does not occur in Clause (a), there is no scope for importing any idea of intermediary in the definition from Sub-clause (b).

B.P. Sinha C.J. in Bimal Sinha case (Supra) on the Orissa Act held that the raiyati interest had not vested though the interest of the same person as proprietor has vested. His Lordship observed at page 1914 of Kumar Bimal Chandra Sinha Vs. State of Orissa, :

Under the Orissa Tenancy Act the unit of interest of a proprietor is an ''estate''. Under a proprietor may be a number of sub-proprietors. The interest of a tenure-holder or an under-tenure-holder is characterised as a tenure.... The same person, by transfer or by operation of law, might at the same time occupy different status in relation to land. He may be in respect of a particular area, which is geographically included in the estate, the proprietor. That land may be held by a raiyat not directly under a proprietor but under a tenure-holder who holds directly under the proprietor. The proprietor may have acquired the interest of a raiyat.

Finding all their submissions on this aspect answered by the above Supreme Court decisions but entertaining last ditch hopes, the learned Advocates submitted that even after a quick look on this legal weather chart of the decisions, some of them appear to have dispositions for moving sideways which have the effect as one step forward and one back and consequently some of us in the High Court are only to "saddle in" at the door-way. Whether that is so or not, the decisions, graphically illustrated, chronologically arranged, geographically placed, subjectwise discussed and historically analysed, throw certainly shafts of light which are seen cutting into the darkness. Moreover, I do not want anyone to gather from this catalogue of cases (rather none should join in the nostalgic pronouncement) that I am a spiritual descendant of those mid-Victorian Judges who looked askance at the decisions. The suggestion that only a historical philosopher might see in those decisions the Hegelian Dialectic (thesis, antithesis and synthesis-the unifying principle, a young man with a future) at work in this development of interpretation of the expressions "estates" and "rights in relation to an estate" is again difficult to accept.

It is then argued with force that all the observations of all their Lordships and even by the same learned Judge on the same general topic but in different decisions are not always easy to reconcile, viz., the observations of Mr. S.R. Das as a puisne Judge in the cases of Darbhanga (Supra), Vishwesioar (Supra) and Bishwambhar (Supra) and as Chief Justice in the cases of Kanika Raj (Supra), Bhairebendra (Supra), Vinode (Supra) and Venkatagiri (Supra) are not reconcilable. Again some of his observations made in Bhairebendra (Supra) case go against Aiyyar J.''s observations in Srinivasa (Supra) case and those in Kanika Raj (Supra) case of the same learned Judge go against those in Thakur Amar Singh (Supra) of the other learned Judge. Similarly, the observations of B.P. Sinha as a puisne Judge in the case of Atma Ram (Supra) do not tally in all particulars made as Chief Justice in the cases of Jayvant (Supra), Bimal Sinha (Supra) and Yakinuddin (Supra). Atma Ram (Supra) again does not see Ram Ram (Supra) face to face. Attention is also drawn that all the observations in the cases of Thakur Raghubir (Supra), Raghubar Swarup (Supra), Moradhwaj (Supra), Padmini (Supra), Kunhi Koman (Supra) and Mahendra (Supra) cannot walk, not to speak of, march in step.

It is further submitted that the application of the ratio of the decision in Chhotabhai Patel (Supra) case applied by Bose J. in the Chilka Lake case (Supra) and the observation of Hidayatulla J. in the case of Mahadeo (Supra) are not reconcilable with the observations of B.P. Sinha C.J. in the case of Yakinuddin (Supra).

Even accepting for argument''s sake that the submissions of the learned Advocates have some force, what I do feel is that these series of cases with the same or similar interpretations, but some of them without reference to any or many of the earlier decisions, not only attempt to break the backs of the Courts and take most of the Courts'' time to dispose of the cases with reasonable despatch, particularly when they were all placed before the Court but they tend to create pitfalls for the unwary practitioners and undue interpretative burdens for us in the High Courts and the Courts subordinate to us. of course, we shall have to attempt our best to dredge up and resolve the problems that are called for on new statutes, keeping always in view the Supreme Court decisions, but the difficulty is the rendering of so many decisions and that again by separate affirming judgments even in one case, not on totally dissimilar or different points. It would not be safe, in my view, to shut out at one stroke all the above Supreme Court decisions by saying that those arise on different statutes and in different context, particularly when this is a large and fateful controversy touching millions in West Bengal and also particularly when just a little less than 10 years back S.R. Das J. prophesied in Bishwambhar case (Supra) that "sooner or later all estates must perforce be abolished".

Independent of the constitutional challenge and as an answer to the statutory challenge on this aspect, dealt with in detail by my learned brother, I only like to add that the Preamble to the Act got expanded by pressure of amendments. It noticed that the rights of raiyats were also contemplated and intended to be affected under certain circumstances with the fact of substitution of Chapter VI of the Act, is the answer. There is no substance in Mr. Dutt''s argument that notifications under Sections 4 and 52 of the Act are insufficient for the rights of raiyats and under-raiyats to be vested in the State. Apart from the fact that Section 52 speaks of applications of such notifications mutatis mutandis, and remembering Section 49 of the Act, the observations of the Supreme Court as to the sufficiency of notice in such circumstance made in the case of Raghubar Swarup (Supra) go against the contention of Mr. Dutt. Sections 5(c) and 5 (d) of the Act, being transitory provisions pending Chapter VI of the Act coming into force, do not help Mr. Dutt. I respectfully agree with my learned brother that the facts in the case of Katras Jharia Coal Co. Ltd. Vs. State of West Bengal and Others, , are distinguishable on the point of notifications. It is also made clear that I would not be taken to have approved the other findings in the said decision on other points on which I express no opinion as no decision is called for in these cases, except on a small point which I would deal with later. Though, strictly speaking, certain provisions of the Act cannot be wholly fitted in when the date of vesting in the case of raiyats is changed to 1st Baisakh, 1363 B.S., but the alteration of the date of vesting is permissible on the theory of projection.

The argument of Mr. A.D. Mukherjee in C.R. Case No. 4652 of 1960, that the rights of those raiyats and under-raiyats who are in "khas" possession of their lands have not vested, cannot be accepted, which my learned brother has dealt with in detail. Early English writers, e.g., Phillips Francis, Boughton Rans and others, used to call it "coss" in some of their spidery writings. Mr. Mukherjee stressed that the raiyats in khas possession of their lands had no knowledge about the vesting of their rights in the coming statutes. There is, therefore, lack of bona fide and good faith. The said distinction of remaining in khas possession was not approved by the Supreme Court in the case of Suraj Ahir (Supra). No distinction, between classes of raiyats in khas possession and those who are not, was made either in the Act or the Constitution-Mr. Mukherjee also would have done well to remember what the Supreme Court said in the case of Venkatagiri (Supra) on the point of "lack of bona fide".

The observations of Banerjee J. "still to vest in the State" in the case of Bijoy Krishna Dey. and Others Vs. Sub-Divisional Land Reforms Officer, , strongly relied on by Mr. Dutt, viz., that the status of raiyats remains, even after the abolition of States, cannot mean that the rights of raiyats have not vested in the State Government. The decision of S.K. Sen J. in Prahlad Chandra Dey Vs. Gobinda Chandra Dey and Others, , relied on by Mr. Dutt in support of the argument that even if the rights of raiyats have vested, Section 5A would not apply to them, is distinguishable. Firstly, that was a case u/s 5B of the Act. Secondly, it is not a case of a modification of a date by notification; thirdly, the facts are distinguishable and, lastly, the observations are obiter.

I personally would have had no hesitation in declaring that the rights and interests of raiyats and under-raiyats have not vested in the State and it would be a mistake to baptise their land as proposed new estates when its idea took modest root after centuries but the legislators have made deep incursions into property law and the raiyats and under-raiyats could not resist the legislative invasion and they now become the children of the intermediaries under the Act, in full degree. The raiyats and under-raiyats would better be reminded of the observations of the Supreme Court made in the case of Srinivasa (Supra) to the effect that it is inconceivable that the raiyats with their under-raiyats will "survive as islets in the landscape even after the parent estates have disappeared from the scene". The legislation then to this extent "would have failed to achieve its purpose. And this is not all". "If the contention of the Petitioners is correct, the raiyats will not merely be unaffected by the Act but will actually be better off for it." "We cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverses of what were intended" (vide pp.914, 917, 918 of The State of Madras and Another Vs. V. Srinivasa Ayyangar, ).

As Sisyphus tried to roll his stone up an incline and he was defeated each time by circumstances, the raiyats likewise failed and their rights and interests in their lands vested in the State Government of West Bengal, hemmed in by the statute, superimposed by the Constitution and interlaced by the Supreme Court decisions.

This disposes of grounds of attack in (a) to (f) above. The submission on (g) as to the Act being ultra vires Articles 14, 19 and 31 of the Constitution will be dealt with later, when I come to the interpretation of Section 5A itself.

I now pass straight to the various heads of arguments but I do not propose to deal with the facts in great detail which have been done by my learned brother in respective cases. I would only give my views on the heads of objections-point or subjectwise.

On the point that the State Govt. did not form any opinion u/s 5A(1) of the Act, the expression that the transfer "may not be bona fide'' in my view is accurate as the opinion must be by its nature prima facie and tentative. The Revenue Officer cannot and should not be definite in his opinion at the beginning of the enquiry. I agree with my learned brother that the view taken by Chatterjee J. in the unreported case of Dilip Misra (Supra) is not correct. The unreported judgment of Banerjee J. in Braja Rakhal v. State of W.B. C.R. Case No. 715 (W) of 1961 in which his Lordship, being not satisfied over the said expression "may not be bona fide", issued the writ quashing the proceeding and directing for fresh notice, cannot be taken advantage of, as I find that the point was not decided by Banerjee J. and the Rule was allowed to be made absolute on concession.

Moreover, such opinion in my judgment must not be an airy opinion. There must be reasons for forming the opinion. The record must show on what basis such opinion is formed. There is again, in my view, no bar on the State Government or its officers in receiving information and entertaining applications from any person, far less from Bhagchasis or Bargadars of the disputed property, prior to the starting of enquiry u/s 5A of the Act and the proceeding does not on that ground become defective. The contrary view sought to be established by the learned Advocate, Mr. J.K. Sen gupta, appearing in C.R. Cases Nos. 1043-1056 of 1961 cannot, therefore, be accepted.

Mr. Amal Roy, the learned Advocate appearing in C.R. Case No. 1556 of 1959, contended that the opinion should not be formed upon the sole fact where the transferor is thought of by the Revenue Officer as a "big raiyat". The expression "big raiyat" appears to have been used by some of the Revenue Officers in some of the cases. But none of the learned Advocates could find the said expression "big raiyat" either in the Act or in the Rules. It is a bad verbal coin. Like bad coin in general, it drives out good. Possibly the authorities were looking at the raiyats through one end of the opera glass. If the Revenue Officers meant thereby that the transferor owned a very large area of land much beyond 25 acres of agricultural land and much beyond 20 acres of non-agricultural land, between May 5, 1953 and the date of vesting, that is one of the factors that might be taken note of at the time of forming the opinion or at the enquiry itself. But that fact alone must not be thought sufficient for declaring a transfer as "not bona fide" or otherwise.

Barbarous as it appears, it would be advisable to avoid the use of such artificial expression "big raiyat", a loose expression, without any legal sanction. Until the uniformity of its acceptance throughout the entire State is fully ascertained, authorised and legally sanctioned, the said expression should not be used.

Mr. Roy further contended in the aforesaid Rule that the copy of the order recording the opinion was not served on his client. What happened in that particular case was that the copy of the order "was issued" and thereafter the parties had appeared. In my view the contention as to the service on the party in each case of the copy of the order, even after the appearance of the party, should not be accepted as a general proposition, as no prejudice has been caused to the party in such cases. In my view the service of the copy of the order under Rule 3A(2) is to be effected on the parties, particularly when they have not appeared in the proceedings.

The next point urged by Mr. Dutt that there can be no delegation by the State Government to its Revenue Officers u/s 5A(4) of the Act to form opinion. Therefore, the enquiry started u/s 5A on such delegated authority is ultra vires the Act and is void. It has been elaborately dealt with by my learned brother. The notification of such delegation, published on April 10, 1956, runs as follows:

The Governor is pleased to delegate to (1) Settlement Officers, (2) Charge Officers, (3) Assistant Settlement Officers, (4) Kanungoes within their respective jurisdiction all the powers of the State Govt. u/s 5A of the Act.

The system of delegation has been built up haphazardly without plan or logic and that the extent and limits of a delegation have been determined by accident and expediency and not upon any system. It is difficult to find, rather it may be misleading to look for, any clear or conscious purpose in the historical development of the process. The practice of delegation has been adopted from time to time under pressure of circumstances and the legislatures in many countries have steadily pursued a course without fully realising its attendant risk. It is doubtful whether it has been fully realised how extensive the practice of delegation has become or how easily the practice may be abused. I do not think that this is not the considered view of most of those who have investigated the problem. Many of them would like the practice to curtail as much as possible.

Forming of opinion, again, is an ancient power. It might be judicial, executive or administrative and legislative. Only labelling has come into the Constitution.

The learned Advocates contend that they are shocked that such wide power is delegated to the Kanungoes and the Revenue Officers. Their orders, it is stated, are sometimes despotic in principle, arbitrary and irregular in practice which render at some times almost impossible to discriminate between power and principle, fact and right. In Great Britain, when arbitrary exercise of powers by the Excise Commissioners, having judicial powers, was complained of in the House of Commons, Mr. Johnson said that "the cases were adJudged not by Common-Judges of property, but wretches hired by those to whom excise is paid". I have been unable to find evidence, even when laid bare by slices, to support the said view of the critics in the present cases or that such exercise occurs extensively. It appears to be conveniently forgotten that in Todarmal''s system, the office of the kanongo (literally, expounder of the laws) was created and all the records of the public accounts were kept under their custody. Again, after the grant of Dewani, cases connected with land were referred to kanungoes (registrars of land) in Murshidabad for decision. It is also interesting to notice that at least two Revenue Officers held the office of Lieutenant Governor of Bengal, namely, Mr. (afterwards Sir) F. Halliday, Mr. (afterwards Sir) J.P. Grant.

In my view there is no bar on the State Government to delegate its powers u/s 5A of the Act. Rather Rule 3(A) specially provides for such delegation. Enquiry includes mental part-cruder part is taking evidence, deciding, etc. To form the opinion, in my judgment, is the first step of the enquiry. The whole proceeding u/s 5A being a quasi-judicial proceeding and the formation of the opinion being a part of such enquiry cannot be said to be purely an administrative act. The "power" in Section 5A(4) of the Act cannot be equated with the frame of mind only or personal discretion. In that view, the Supreme Court decision in the case of State of Madras Vs. C.P. Sarathy and Another, , which is a case on Section 10 of the Industrial Disputes Act and a case of unqualified opinion, is not available to the learned Advocates. The principles laid down in the case of Kunni Lal v. Re, AIR (1949) All. 32, do not also apply.

Rule 3(A) again cannot be held to be ultra vires the provisions of Section 5A(1) of the Act because delegation is made under the rule-making power of Section 59(1) of the Act and not merely u/s 5A(4) thereof. One must not forget that the delegated authorities are related as child to parent, a growing child called upon to relieve the parent of the strain or overwork, and capable of attending to minor matters, while the parent manages the main business. In the present cases the child is not bigger than the parent though in mere bulk the child dwarfs him. Therefore Rule 3(A) is not ultra vires Section 5A(1) of the Act.

State Government itself being an impersonal being, the formation of opinion by it from the practical point of view, again, is to be done through its officers. It might be assumed that the State Government acts not whimsically but rationally. In modern democracy many things have to be done vicariously and this is one of such. Banerjee J., held in the case of Sahiruddin Ahmed Vs. State of West Bengal and Others, , that Section 5A(4) of the Act cannot be struck down for excessive delegation.

Mr. Sengupta, the learned Advocate, poses another question, viz., that if there is a general delegation under the provision of Section 54(4), there was no necessity to have a further delegation u/s 5A(4) of the Act. When Section 54(1) was originally there, it appears that there was delegation only in favour of the Board. In 1958, the Commissioner and the Collector were introduced in the said section. Sub-Section 2 of Section 54 provides for the exercise of such powers by the officers in Section 53 of the Act. In my view, it is not a case of double delegation and there is no bar in making a special provision for delegation as provided in Section 5A(4), for the conduct of the enquiry. Utmost it can be said that the legislature in its enthusiasm overcarried itself beyond one or two stations but did not go overboard in its inspired wisdom. Hence the same would not make the delegation u/s 5A(4) bad.

It was next argued on this head that the delegation appearing in the notification is in favour of only the Settlement Officers and not in favour of the Revenue Officers. It is true that in most of the cases before us, the orders have been passed by the Revenue Officers. This point was never taken before the First Tribunal as well as the Appellate Tribunal below and it should not be allowed to be raised for the first time before us, as the decision on the same is dependent on facts and evidence which have not been gone into and are, therefore, not on the record. Moreover, there is no evidence that the officers who passed the orders in the cases were not Settlement Officers as well, or they were not properly delegated u/s 5A(4) of the Act.

The law-making body, however, we are told, should keep in mind that they should be chary of delegating on the executive the ungrateful task of giving judicial decisions in matters in which their very zeal for the public service can scarcely fail to bias them unconsciously.

It is next argued by Mr. Dutt that Section 5A is violative of the principles of natural justice, the same person being the Judge, prosecutor and party (a holy Trinity) in the proceedings for enquiry. The phrase natural justice is perhaps more often used than understood. Its observance is demanded by our national sense of justice, and it is, I think, the desire to secure safeguards for their observance, more than any other factor, which has inspired the criticism levelled against the executive and against the legislative also for entrusting judicial or quasi-judicial function to the executive.

The first and most fundamental principle of natural justice is that a man must not be a Judge in his own cause. Wherever there is a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act. I think for myself that bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary interest. The bias to which a public-spirited man is subjected, if he adjudicates in any case in which he is interested on public grounds, is more subtle and less easy for him to detect and resist. On the maxim that no man is to be a Judge in a cause in which he is interested, it is unfair to impose on him the duty of adjudicating in any matter in which it could fairly be argued that his impartiality would be in inverse ratio to his strength and ability.

It may also be said that the theory, that a man should not be a Judge in his own cause, is not applicable in the case of institutional causes or interest, but it refers to personal and pecuniary interest of the man. In my view, the principle or doctrine of bias does not in any case apply to Courts and/or Tribunals as institutions, being always a personal doctrine, is again too narrow to be accepted as a general proposition. Mr. Dutt relies on a Supreme Court decision in the case of Gullapalli Nageswara Rao etc. Vs. The State of Andhra Pradesh and Others, , for the proposition that the State Government cannot both be the prosecutor and a Judge. On facts the said case is distinguishable and I do not see how this decision helps Mr. Dutt.

It is true that the possibility of bias is sufficient to invoke the principles of natural justice but the decision of the Supreme Court in the case of Manak Lal Vs. Dr. Prem Chand, , does not apply, as the facts again are distinguishable. In the said case, one member of the Tribunal appeared at one stage on behalf of a party but in the instant enquiry cases the Revenue Officers or the Settlement Officers did not so act.

As it appears that the policy of a particular department might be substantially better served by a decision one way rather than another, the first principle of natural justice will come into play, and the State Government should not be called upon, as is again emphasised, to perform the incongruous task of dealing with the judicial part of the quasi-judicial decision as an impartial Judge, when ex hypothesis the State Government and its particular department want the decision to be one way rather than another. I recognise that this kind of case may not be many but it is a real possibility. In such a case the judicial functions, which are likely to be performed before the ultimate decision is given and on which that decision must be based, should be entrusted to an independent Tribunal whose decision on any judicial issue should be binding on the State Government.

I, therefore, hold that Section 5A does not violate the principles of natural justice. I need not pause to survey the borderland between high public policy and natural justice in order to discover the theoretical boundary. Hence, I revert to the next question.

It has been next argued by Mr. Dutt that the State legislature has no legislative competence in enacting Section 5A of the Act and therefore the said section is stated to be ultra vires Article 246(3) of the Constitution. It is further argued that Section 5A is not a measure of reforms of land tenure and therefore outside the purview of entry 18 of List II (State List) of the Constitution. It might be noted at the outset that the constitutional validity of the entire Act is not challenged, but the validity of only Section 5A has been challenged before us.

In my view, the said argument has got no force. Section 6A must be held to be a part of the whole Act which is a measure of the reforms of land tenure and, therefore, the enactment of Section 5A is covered by the said entry 18. The said view of mine gets support from the Supreme Court decision of Atma Ram (Supra).

Following the decision of Mahajan J., in the Darbhanga case (Supra), (at page 926 of the Report) to the effect that the Bihar Act was the transference of ownership of an estate to the State Government and thus falls within the ambit of entry 36 of List II (as it then stood), S.K. Das J., held, in Pathrole Ghatwali case (Supra), that the State legislature has legislative competence to legislate on a subject even if it be a mere grant.

The Supreme Court also held in the case of Amar Sarjit (Supra), that the State of Punjab has legislative competence to pass the Punjab Act of 1957 on the ground that the legislation relates to the land and land revenue and, therefore, would fall under entries 18 and 45 of List II. At page 366 of the Report, it was observed that "if the principal legislation is intra vires, it is difficult to see how an amendment thereof with respect to matters properly pertaining to the subject-matter covered by it would be ultra vires". On principle, in my judgment, there would be no difference between an amendment and addition of a section, viz., introduction of Section 5A in the present case, if it properly pertains to the subject-matter of land reforms which Section 5A purports to do. It is noted in the Bokaro case (Supra), at page 835 that the constitutional validity of Section 4(h) of the Bihar Act (somewhat similar to Section 5A) is not challenged.

In my view when there is legislative competence in the State legislature, there is no breach of Article 246(3) of the Constitution in enacting Section 5A. The contention on this head also fails.

The next important point sought to be made out by Mr. Dutt that Section 5A, in conferring upon the Government the function of the Court of law, is unconstitutional and void as it invades and usurps the function of Civil Courts. In other words, as Section 5A confers upon the State Government the right to declare and to cancel the transfers and, therefore, confers the right to function as a Court of law, it is an encroachment on the judicial power and function. The said argument is based upon the theory that there is, under our Constitution, separation of power (in the instant case) between executive and judicial. As Section 5A conbines both the powers, it is bad.

The separation of powers is said by some jurists to be merely a rule of political wisdom and must give way where sound reasons of public policy so require. True it is that the doctrine of separation of powers is not sacrosanct and it need not shock the most rigid constitutional purist but it is obvious that the separation of powers is prima facie the guiding principle by which the Parliament or the Assembly when legislating should allocate the executive and judicial tasks involved in its legislative plan. If the statute is in general concerned with administration, normally an executive department might be entrusted with its execution, but If the measure is one in which justiciable issues will be raised in the course of carrying the Act into effect and judicial determination will be needed in order to reach decisions, then, prima facie, that part of the task should be separated from the rest and reserved for decision by a Court of law, whether ordinary or specialised, as in the circumstances the State Government may think right.

In the British Constitution (flexible and unwritten), there is no such thing as the absolute or clear-cut separation of legislative, executive and judicial powers; in practice, it is inevitable that they should overlap. The reason is that the administration there is subject to the almost daily supervision of the Courts of law. The Federal Constitution of the United States of America, though nowhere expressly declares that the three branches of the Government shall be kept separate and independent, but all legislative powers are vested in a Congress, the executive power is vested in a President and the judicial power is vested in one Supreme Court and in such inferior Courts as Congress may from time to time establish. In my view, complete independence and separation between the three branches are not attained, rather not intended there, as positive and negative restraints are available under the U.S. Constitution to each branch of the Government in defeat of the action of the other. In Australia, the High Court has by no means been a mere rubber stamp in approving exercises of Commonwealth power. It is the forum in which the legislative expressions of political, economic and social philosophies either gain quickened life or are pronounced still-born. The West German Constitution (1948) provides exercise of State authority by means of separate legislative, executive and judicial organs. Canada was largely passing through a period of experiment in which an ebullient nationalism strove against the limitations of the Constitution. Before the French Revolution the "Parliaments", which were primarily Courts of justice, were also administrative bodies, while the Royal "Intendants" who governed the Provinces exercised judicial functions. In 1790 the Constituent Assembly created a new Constitution which was based on the separation of the legislative, executive and judicial powers in the State. One of the consequences of the separation was that both the Courts and the administration were made wholly independent of each other. The administrative independence gave rise to much dissatisfaction and it was to allay this dissatisfaction that Napoleon gave the right of recourse to the "Counseil d'' Etat". The distinction of powers is nonetheless real, and for our purpose important. One of the main problems posed is how to preserve the distinction, whilst avoiding too rigid an insistence on it, in the wide borderland where it might be convenient to entrust minor quasi-judicial functions to executive authorities.

The investiture of judicial power in the executive or vice versa in our country is not new. In 1781 the Civil Courts were invested with the powers of the Magistrates. In 1787 Lord Cornwallis united the offices of the Judge and the Collector in the same person, which is indicated in the Permanent Settlement Regulation. This system was extended in 1795 to Benaras. Between 1795 and 1797 the Governor-General in Council exercised not only the supreme legislative and executive authority but also administered judicial functions. In 1859 the jurisdiction of Civil Courts was wholly taken away and an exclusive jurisdiction was given to the Collectors to try suits, to eject raiyats and cancel the leases for non-payment of rent or breach of contract, which was objected to by Sir Barnes Peacock, Chief Justice of this Court. This power was restored in or about 1880.

My learned brother has considered inter alia the provisions of Articles 50, 154 and 235 of the Constitution, as also some of the cases of English and Australian Courts on the point. I may add that the principles in the unreported judgments of the Supreme Court in State of U.P. v. Md. Naim Cr. Appeal No. 81 of 1962 dated 15-3-1963 and that in the case of the State of West Bengal v. Union of India Suit No. 1 of 1961 dated 21-12-1962 dealing with powers of the State Government and its officers in view of Article 154 of the Constitution do not lay down the principle that the executive cannot exercise judicial function even in a limited way.

I may further add that in the Supreme Court, in dealing with the provisions of the Orissa Act by which the Collector was invested with the power to settle and reduce rent as he liked, Mukherjee J., held in Gajapati case (Supra) that there is no improper delegation of legislative power to the executive. At pages 523 and 524 it is held in the case of Ram Ram (Supra), that though the executive had been given the power in the Bombay Acts for varying ceiling of land, it was not excessive delegation because the legislators settled the policy and broad principles of legislation are laid down and criteria of satisfaction of State Government are fixed. In considering Section 4(h) of the Bihar Act, the object of which is almost similar to Section 5A, it has been held in the case of Bokaro (Supra), that the authorities constituted under the said Act have jurisdiction to cancel the leases under the provisions of Section 4(h). Similarly, the fact that Section 8 of the Ajmere Act gave power to the Collector to cancel the leases granted on or after June 1, 1950, retrospectively (similar to our Section 5A, which were made in anticipation of the legislation, is noted in the case of Thakur Raghubir (Supra). In considering the Vindhya Pradesh Act which empowers the tahasildars and other officers to settle and decide the questions arising on the said Act, and Section 37 of which specially provides that no Civil Court shall have jurisdiction to decide or deal with the said questions, it is held in Moradhwaj''s case (Supra), that the said section is intra vires the State legislature and no question of repugnancy arises between Section 9 of the CPC and the said Section 37.

Where a problem has a strongly marked judicial side, but it is difficult to detach the non-judicial side; be it administrative or be it legislative, the whole in my view should be entrusted to a Court of law. If the particular task is not suited to the ordinary Courts of law, it may properly be assigned to some special tribunal already existing or to be newly created for the purpose which is better adapted in personnel or procedure. Where judicial element looms large in proportion to the administrative, the statute itself should provide for the segregation of judicial issues and their determination by an independent tribunal. The Government, again, in working out its statutory plan, will have to choose between splitting the problem into two, so as to leave the judicial side to a Court whilst entrusting the non-judicial side to the executive authority whose department is his concern.

It is, therefore, regarded by many as a sound presumption of legislative policy that judicial task should be left to the Judges or to the Special Courts constituted by the legislature only where there are definite reasons of public advantage in favour of departure from the normal course.

It is next argued as a branch of the main argument that as there is no express provision in the Constitution authorising the State Government for exercising the judicial power and function, the said power by necessary implication should be deemed to be excluded. In other words, by affirmative a negative is implied. Mr. Dutt relies on the decision of the Australian High Court and in the Supreme Court case of Ramjay Kaput dealt with by my learned brother for the proposition that the executive cannot exercise purely judicial functions. For establishing the point of distinctions between judicial and quasi-judicial functions our attention was also drawn to the case of Cooper v. Willson [1937] 2 K.B. 309, where at page 340 an attempt was made to distinguish the words "judicial" and "quasi-judicial" laying down four tests. The Supreme Court cases of The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, , and of Maqbool Hussain Vs. The State of Bombay, , were also cited where Cooper''s distinctions between a tribunal of a "purely" judicial character and that of a quasi-judicial character was approved. Though nothing is pure in this unkind world and in this age of unreason, Cooper has not yet become a lame dog. On the principles enunciated therein, approved by the Supreme Court, it must be held that the proceeding for the enquiry u/s 5A is a quasi-judicial proceeding.

There is indeed a currency of a general idea that the quasi-judicial is only an administrative decision. There may, no doubt, arise from time to time again borderland cases in which judicial element begins to creep into the process of administration and a large number of administrative decisions may involve in some degree at some stages in the procedure, which eventuates in executive action, certain of the attributes of a judicial decision; and at one end of the scale of some special orders they may be plainly legislative and at the other end scarcely more than administrative but there is no doubt that the decision in Section 5A enquiry cases is a quasi-judicial decision because it never partakes of the character of a decision which disposes of the whole matter for all purposes.

Without modifying the view already expressed that the presumption should always be in favour of using the ordinary Law Courts the following ideal of justice should always be followed by the quasi-judicial tribunals:

Amid the cross-currents and shifting sands of public life, the law (properly made) is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. [The words (properly made) are mine.]

I am further of opinion that where the Government is satisfied that certain judicial issues arising out of the administrative work of a department are not suitable for decision for the ordinary Courts, the law-making body should, in the absence of any exceptional reasons for referring them to the decision of the executive Government, provide for their reference to an independent person or persons not being an officer or officers of the department concerned. While it is no part of our duty to advise or to make recommendation or to criticise the policy, I think that it is only right that I should point out that dangers are incidental to such references, if not guarded against in time.

My conclusion on the whole matter is that there is nothing radically wrong about the existing practice in permitting the exercise of the quasi-judicial powers by the Revenue Officers, but they said practice is capable of abuse at times, by exercising judicial powers, cannot be disputed. They may easily become a cloak for those very powers which are sought to be avoided, and that certain safeguards are essential if the right and liberty of the citizens are to be maintained.

On the next statutory challenge of the interpretation of Section 5A, specially Section 5A(3) of the Act, and the constitutional challenge made on the ground of discrimination between the same class of bona fide transferors, it was strenuously argued that if, at the time of forming the opinion under Sub-section (1) of Section 5A, it appears to the State Government that a transfer may be "not bona fide", enquiries under the said section will start, but if it appears to the State Government that a transfer is a bona fide one, it will be left out of consideration altogether and no further enquiry u/s 5A on those bona fide transfers will be held. Again, if it appears to the State Government that a transfer may not be bona fide and thereafter it holds the enquiry and the State Government ultimately on evidence and after hearing the parties finds that the transfer is a bona fide one, it will so declare u/s 5A(3)(i) of the Act. On such declaration in regard to the transfers held on evidence to be bona fide, the provision of Section 5A(3)(ii) would be operative and the discrimination between the same class of bona fide transferors, as discussed below, would follow. My learned brother has stated the object and scheme of Section 5A and scanned almost all the Sub-sections and clauses thereof. I have quoted the whole section earlier.

There is no doubt that Section 5A is a graveyard of many ideas. Advocate after Advocate stood up and submitted inter alia the following views for our consideration (a sad retrogression from the 16th century wisdom of the Barons of the Exchequer):

(1) The first view is that it is a case of penalty. On a plain reading of the said Clause (ii) of Sub-Section 3 of Section 5A it is argued that the land of the bona fide transferor would be taken into consideration for calculation and in that case he would have to lose the land retained by him proportionate to the area transferred which has been found to be bona fide. For recurring obscurities of meaning, it is hard to surpass. (2) The second view is that it is a penalty but in a milder form, i.e., Section 5A(3)(i) applies only in cases where the transfers are made of the lands owned by the intermediaries, area of which exceeds the statutory ceiling. In that case the transferor would not be entitled to retain the area of the land, so added back notionally, but would get only compensation. If, on the other hand, the land transferred is within the statutory ceiling, the transferred land would not be taken into account in calculating the land to be retained by the transferor. It may be stated at the outset that it is difficult to accept this view on the face of it, being a subtle manipulation of language. (3) The third view is that no consequences could be administered without the further facts and the impugned section must rest content only declaring the transfer of land as bona fide or not. (4) The fourth view is that even if the consequences (hidden or otherwise) could be administered it would not be a penalty, as the transferor would get compensation for the land to be deducted. It is an emphasis on only one facet of the Act. (5) The next view is that everything in Section 5A(3)(ii) is notional and fictional, purely a clause of imagination meant only for the purpose of calculation. It is a case of a fiction upon fiction-romantic and Vedantic argument and even Mr. P.C. Sarkar (not the magician) did not think of such a possibility in his book on the subject. (6) The other view again is that only the part of the provision, viz., the fact of retention of land by the transferee in Section 5A is the only reality; everything else is unreal. This view again is to be rejected as the subtlety of the logic is involved in the process of adding perplexity. (7) According to Mr. Majumder, appearing on behalf of the Government, the whole Section 5A being retrospective, one is to project oneself to the date of passing of the Act and also to the date of vesting and then the notion of fiction would disappear. According to him, transfers only up to the date of vesting from May 5, 1953, are liable to be considered and enquired into under the said provision. The attempt of Mr. Majumder, it seems, viz., to keep the ship afloat, in better shape or worse, in the hope that rescue will come, is praiseworthy but time has proved to be a poor solution to a problem. (8) It is also argued that Section 5A(3)(i) deals with transfers only up to the date of vesting but Section 5A(3)(ii), deals with cases only when there are successive transfers of the same lands but between the period-May 5, 1953 and the date of vesting. This argument is stated only for the purpose of being rejected. (9) Another point of view is that Section 5A(3)(ii) is an additional retention of lands over and above the retention allowed u/s 6 of the Act. It is an addition of the quota of inspired wisdom. (10) Some learned Advocates also stated that Section 5A envisages fictional retention, whereas Section 6 deals with factual retention. It shows the enormous danger of substitution of fiction for fact, a rumour for evidence and prejudice for real substance. (11) Again, Section 5A(3)(ii) is stated to be not an independent provision. It is really a guide to work out the provision of Section 5A(3)(i) of the Act. The learned Advocate is sadly mistaken. (12) Section 5A(3)(ii) was argued to be merely a threat to check further largescale transfers and it is submitted that according to the then Land Revenue Minister (who piloted the Bill) the said provision was meant for preventing accumulation of agricultural lands in the hands of non-agriculturists. Difficult exercise in imagination indeed and it would be an insult to the understanding of the Court to accept this argument. (13) The further view is that this Sub-section, viz., 5A(3)(ii), was introduced in the Assembly in a fit of absent-mindedness. It is a bit of historical nonsense, which cannot be enforced in a Court of law. It is submitted that the Assembly passes so many laws every year nowadays that it lacks the time to shape all the legislative details, but lack of time, in my view, is an old excuse for shortcomings. (14) According to some of the learned Advocates again, Section 5A is meant only for a swift and summary justice ; but it should always be remembered that justice is not enough. Security and ideal for justice are necessary, and the Act should provide surely a surer and perhaps a juster justice than the best of a Judge can give.

(15) It is said that on the declaration of the transfer being bona fide, it is blameless and impeccable so far as the transferee is concerned. u/s 5A(3)(i) the land belongs to him (as if a great concession is shown to him). But the law takes a different turn to the transferor, though his motive is equally bona fide. He becomes a remarkable gentleman and loses his land u/s 5A(3)(ii). That is to say, law turns two faces, smiling face to the transferee and a frowning face to the transferor. The transfer is sound and corrupt at the same time, the rotten and the ripe are bound together. It is a paradox created and precipitated in a particular way. Bona fide transfers become possessed of tainted elements in them. It is a curious combination, a contradiction of both "bona fide" and "not bona fide". It is emphasised that in a purported social welfare legislation, social justice is denied to a bona fide transferor. Even if it is so, we are not concerned with the policy.

(16) Again, it was seriously argued on the ground of policy that if Section 5A(3)(ii), is a troublesome appendix because it has an adhesion, by the way and nature of deduction of proportionate lands retained by the bona fide transferor, the repercussion of penalty would widely spread their tentacles on the common man and the State would become a sink of iniquity. It is answered that the outer skin might be like rock crust but beneath it is the soft shell. This is only to point out that the "natural apprehension of the land-owners" that certain provisions of Himachal Pradesh Act (far less stringent than the Bengal Act) being "too drastic" was noticed by the Supreme Court in the Vinode case (Supra), at p. 175.

(17) Again, another learned Advocate asked the question himself, what would happen if there are several successive transfers, all within the condemned period, some of which might be held to be bona fide (say to strangers and not made with the object of either retaining more lands or receiving more compensation) and some of the later transfers by the said stranger are held to be not bona fide and so on between the successive transferors and transferees who might be near relations and in which cases they said two objects are satisfied. According to the learned Advocates, it gives a feeling of near-helplessness as it made holes in all the transfers and it is a procession of odd, queer and provoking ambiguities.

(18) The provision of Section 5A, according to all the learned Advocates, though ultimately nothing but empty hopes, but still are such that they compel the people to resort to litigation because they have acted in a bona fide manner and in accordance with the provisions of the law. Logic appears to them to be pitiless.

I would not go through every and other instances, but I confess, I consider the long list of complications seriously, as I have respect for the law-making body to treat it so ludicrously. I also admire the struggle of the learned Advocates on either side to infuse sense for which we also struggled for a pretty long time as the object of the impugned section was not seen except on the horizon and that also hazy. One must stand in awe of the ability of the framers of the Act to toss off expressions that can have any number of meanings. I am sure that the tiniest fraction of time, spent by all the lawyers on either side and by ourselves in the endeavour to elucidate the obscurities, was not spent by the legislators. Ambiguity, lack of harmony and co-ordination are words too modest to be applied. The complications chosen and the arguments put forward reflect conflicting pressures in which the chessmen have been moved and moved to keep the game in running order.

of course, I do not accept the arguments that the legislators were indolent and unintelligent creatures and negligent of the undramatic type of legislative activity but that they are capable of writing an Act as to the manifold damnations in the veritable jungle of criticisms, cannot be denied. That they had shown themselves adept at producing manifest difficulties and anxious implications cannot also be denied: Certainly it is not legislative fineness. The law-making body, in my view, has succeeded in saying something it probably did not mean ; and I think that the Court should give effect to what, I believe, the legislature meant, rather than to what it rather attempted to say. If the said body, emphasised the learned Advocates, consisted of professional men and men with special qualifications for dealing with the matter within their special knowledge or jurisdiction, the difficulties would have been less. Forty years have already passed since Cardozo told us "the time is ripe for betterment-let us gather up the driftwood and leave the waters pure".

Without repeating the steps in the reasoning, I hold (1) that it is no part of the duty of the State Government or any of its delegated officers to administer the consequences in Section 5A(3)(i) and (ii), on the ground that they are dependent on so many considerations, some of which were noticed by my learned brother. The only declaration permissible is as to whether a transfer is bona fide or "not bona fide", viz., the third view as stated above. (2) As the consequences could not be administered u/s 5A, it cannot also be held that the provision of Section 5A(3)(ii) is a penalty. Intention being not very clear, it is not fair to subject the raiyats and the under-raiyats to the penalty, hazards, chances, inconveniences, uncertainties and to the complexities of an already complicated situation. Provision should have been made clear. It should not have been left to the matter of inference only. (3) There is, therefore, no discrimination between the same class of bona fide transferors, as it is not a case of penalty.

The Supreme Court in the case of Umesh Jha (Supra), observed at page 690 of State of Bihar and Another Vs. Umesh Jha, that on the Collector''s cancelling the transfer of land, it automatically vested in the State. In Suraj Ahir case (Supra), it is observed that after the vesting of the estate, no interest other than that expressly saved by or under the provisions of the statute would remain in the persons. But in Raghubir case (Supra), the Supreme Court did not consider where the property should vest after the acquisition and left it open. Relying on the observation of Mukherjea J., in the case of Gajapati (Supra), on a somewhat similar provision in the Orissa Act like Section 5A(3)(ii), of the Act, I hold that the bona fide transferors would be entitled to raise objections, if and when there are further enquiries and if and when the lands of the bona fide transferors are sought to be deducted from their retained lands. The real encounter in my view would then be offered to the ascertained circumstances of the cases on further enquiries when neither the Government interest be acknowledged and recognised by unmerited indulgence nor those of raiyats and under-raiyats suffer and be infringed from undue severity.

It is proper now to discuss the question left over, viz., whether Section 5A is violative of Articles 14, 19 and 31 of the Constitution. In measuring this argument it may be instructive to remember the principles laid down by the Supreme Court.

On the discussion just made on the last submission, it appears that the only reasonable interpretation that can be put on the section is that there are really no two classes within the same class of bona fide transferors. It does not appear either from the Act or the Rules or from the records in these cases that there is one class of bona fide transferors which has been left out from enquiry after the prima facie opinion is formed about the transfers. Neither does it appear that there is another class of bona fide transferors against which the enquiry has been proceeded with. It is better to remember that the Supreme Court in the case of Monohar (Supra), observed, at page 1001 that "a proper classification must always bear a reasonable and just relations to the things in respect of which it is proposed''. The said test does not apply here. In my opinion the theory of "two classes within the same class" is based upon non-equality in consequences. The result should be the guide for testing the basis for classification. Reasons cannot be taken as the reasonable basis for classification, far less prima facie reasons. It is only a step in the procedure (see the principles in the Supreme Court cases of Budhan Choudhry and Others Vs. The State of Bihar, , and Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, .

If the learned Advocates would have been successful in contending that under the guise of the enquiry, really a large part of the rights of the raiyats and under-raiyats to their lands was really being taken away, on the principle enunciated in the majority judgment of the Supreme Court in Joyvant (Supra) case, the matter might have been different.

As I have already held that one class of bona fide transferors, similarly circumstanced, does not suffer any penalty u/s 5A in the absence of consequences not being permissible to be administered under the said section, the impugned section cannot be held to be violative of Article 14 of the Constitution.

The further argument in this branch by Mr. S.N. De, the learned Advocate in C.R. Case Nos. 4658 to 4664 of 1960, that with the effect of upgrading the raiyats as intermediaries comes in a discrimination between "non-raiyat intermediaries" and "raiyats deemed to be intermediaries". I think it quite revolting that I should be obliged to determine the future of the raiyats and their families on the basis of distinctions so fine, that even the thirteenth century theologians would have stamped them as undue hairsplitting. On the principles whether a State legislature made any distinction or discrimination between Jagirdars and occupants of lands and between raiyats and intermediaries, one would do well to refer to the Supreme Court cases of Moradhwaj (Supra) and Pathrole Ghatwali (Supra), which go against this contention.

To the argument that Section 5A is violative of Articles 19(1)(f) and 31 of the Constitution on the ground that it invades the right to hold the property, the short answer is that the said section is not a legislation for deprivation of property. It is at best a restriction. On this section no title is declared except a declaration, viz., whether a transfer is bona fide or not, and then again the same was only for the purpose of the Act and also again without prejudice to the right and interest either of the transferor or the transferee.

The next argument is that, as Section 5A does not provide for acquisition of an estate by the State Government, it is not protected by Article 31A. The object of the section is to offset the anticipatory attempts made by the transferors to defeat the provisions of the Act. It is a part of the Act, rather an integral part. It is not an independent provision ; it is merely ancillary in character enacted for carrying out the objects of the Act more effectively. If the section is taken out of the Act it can only operate in vacuum. The argument in effect disannexes the section from the setting in which it appears and seeks to test its validity independently of its interaction on the other provisions of the Act. The submission, therefore, has little force. Article 31A of the Constitution saves the impugned section.

It was also submitted by Mr. Basanta Kumar Panda, the learned Advocate appearing in C.R. Case Nos. 4512-4518 of 1962, that Section 5A(2), is ultra vires Article 31(2), of the Constitution. In support, he relies on the Supreme Court case of Mahendra (Supra) which in effect holds that the U.P. Act of 1952 does not revive even on the fourth amendment of the Constitution by virtue of the doctrine of eclipse. The ratio of the said decision in my view does not apply to the instant cases. In the said reported decision the question of deprivation of property and infringement of fundamental rights arose. But Section 5A is only a limited enquiry. Moreover, it was noticed there that though Article 31 was amended but the same was not made retrospective, whereas Article 31A was amended retrospectively.

The next submission by Mr. S.N. De was that Section 5A(7)(ii), is violative of Article 14 being discriminatory because some of the specified relations only are mentioned in the said clause excluding others. The Supreme Court decision in the case of Izhar Ahmad Khan Vs. Union of India (UOI), , was relied on. My opinion is that this Sub-section is not a substantive law but only a rule of evidence, the basis for drawing presumption, which again is rebuttable. True, it may produce some inequality but it does not take away from the legislature the competence and power of legislation of classifying persons for legitimate purpose (see the principles in S.C. cases of Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , and The State of Bombay and Another Vs. F.N. Balsara, . The decision of Izar Ahmed case is not a case of rebuttable presumption.

Lastly, an unreported judgment of a Bench of this Court in (Dakshybala Sathiar v. State of West Bengal Civil Revn. No. 4959 of 1960, decided by Bachawat and Law JJ., on January 28, 1963, was placed. There it was argued that Section 5A, being discriminatory, was violative of Article 14 of the Constitution. The point was not decided on the ground that no satisfactory argument was advanced before their Lordships. The learned Judges expressly noted the same and therefore this decision does not help. I doubt whether we can avoid deciding a point, if it was necessary for the decision of the case, on the only ground that no satisfactory argument was advanced.

Mr. Sisir Kumar Das, the learned Counsel appearing in Civil Rule No. 3094 of 1960, argued that both the tests mentioned in Section 5A(7)(i), viz., retention of more lands or receipt of more compensation, for deciding as to whether a transfer is bona fide or not, cannot go together. It should have been, according to him, either retention of more land or receipt of more compensation. The argument appears to be fallacious on the theory of frog-jumping. Mr. Das takes the element of not bona fide as an ordinary, social or common bad faith, so to say. He forgets that it is a case of statutory bad faith, which is the only norm, test, standard or object that has been laid down in Section 5A(7)(i) and in that view both tests can be applied in the same transfer, e.g., where a transfer is made both of khas and of tenanted lands.

Mr. Das''s next argument was that if there is a transfer between the parties outside the relationship of Section 5A(7)(ii), the transfer must always to be held as bona fide. That was never the intention of the Act. Only difference is that a presumption of "not bona fide" character of a transfer would arise between the prohibited relations which is not so in the cases of other relations. Both the contentions, therefore, fail.

It was argued by Mr. Dutt that no presumption, as laid down in the proviso to Section 5A(7)(ii), could arise until and unless two conditions are fulfilled. First, if the aggregate area or the totality of the "transferred" land is less than 25 acres of agricultural lands and is also less than 20 acres of non-agricultural lands, no presumption would arise. The emphasis was on the word "transferred". According to the learned Advocate, the expression "such land" in the proviso does not mean the land "owned'' but means the land "transferred''. The said expression "such'' is the spring-board for such an argument. In my opinion it refers and means the aggregate area of land owned and the meaning is not confined merely to the area of the transferred land. That is to say, the proviso to Section 5A(7)(ii) would be attracted and the presumption would arise, only when the transferor owned, on any date between May 5, 1953 and the date of vesting, more than 25 acres of agricultural land together with 20 acres of non-agricultural land. The statutory presumption is, however, liable to be displaced and rebutted. My learned brother after quoting the said Sub-section has dealt with it in some detail and could not accept the argument of Mr. Dutt. I agree respectfully with the conclusion, and particularly the reasons supporting the same, arrived at by my learned brother.

In this connection Mr. Sisir Kumar Das, the said learned Advocate, argued in the said C.R. Case No. 3094 of 1960 that in the enquiry cases u/s 5A the onus is entirely on the Government to prove by evidence about the nature and character of transfer as to whether the same is bona fide or not on the analogy of an accused in a criminal trial and there is no duty or responsibility of the transferor or the transferee to give evidence or even to appear in the enquiry.

The answer is short. The State Government forms an opinion, prima facie on reasons, as to whether a transfer is not bona fide or otherwise. After such formation of the opinion the initial duty or onus would be on the transferor or on the transferee, as the case may be, to satisfy that the opinion formed is not correct. This question, again, does not assume much importance after the evidence is laid before the Tribunal. The appearance, or nonappearance, or the tendering of the evidence or otherwise, would be at the risk of the transferor and/or the transferee.

Mr. Lala, the learned Advocate, argued in C.R. Case No. 3678 of 1961 that the benami transfers are outside the scope of Section 5A of the Act. I respectfully agree with the conclusion as well as with the reasonings given by my learned brother on this topic and I hold that the question whether a transfer is benami or not could and should be Considered in the proceeding u/s 5A of the Act.

The word "transfer", it appears, takes its colour from Section 5A(7). The object of Section 5A of the Act is not to decide the question of title. The said question is expressly reserved between the transferor and the transferee. The only purpose of the section is to find out whether more quantity of land is being attempted to be retained or more amount of compensation is being attempted to be received. These are the two objects in Section 5A(7) for which the enquiry is started u/s 5A(i). The enquiry is really for the purpose of considering whether a transfer is benami or not. With respect I cannot persuade myself to agree with the ratio and the principles laid down to the contrary by Sinha J., in the case of Ananta Kumar Dutta Vs. Land Revenue Officer II Estates Acquisition Branch, Nadia, .

Mr. Arun Prakash Chatterjee and Mr. Basanta Kumar Panda, learned Advocates in Civil Revision Case Nos. 4562 and 4367, both of the year 1960, contended that where there are Bargadars, on the lands transferred, within the condemned period and Section 5A has been let loose in respect of such transfers, the Bargadars are necessary parties in the said proceeding of enquiry u/s 5A of the Act. Their main grievance is that if the enquiry cases u/s 5A are decided in their clients'' absence, there is a chance of their losing the right of choice of selecting their landlords, i.e. whether they would continue as Bargadars under the intermediaries or would be so under the Government. The argument is fanciful and should be rejected. That they should be added "in the interest of justice" or "fight for the public cause" is equally misconceived. The further argument was that the Bargadars want to protect the State Government from incurring loss is baseless. The learned Government Pleader also states that the State Government is strong enough to protect its own right and interest and for the said purpose it does not depend on the Bargadars.

In the case of Gadadhar Jana and Another Vs. The State of West Bengal and Others, , it is held by me that the Bargadars are neither necessary nor proper parties to the proceedings u/s 5A of the Act. My learned brother has not only approved the said decision but has elaborately dealt with the question from all aspects and with respect I wholly agree with the reasons and the order. The right to be added as a, party does not depend on the prospect or off chance of the Bargadars for getting lands settled from the State Government in future.

I also agree that the applications filed by Mr. Chatterjee on behalf of the Bargadars for being added as parties are liable to be dismissed with no order as to costs.

Mr. P.K. Das Gupta, the learned Advocate appearing in Civil Revision Case No. 2147 of 1961, contended that Section 5A does not apply to Khas Mahal lands, such as in Baranagar in the District of 24-Parganas, referred to in the earlier part of this judgment in the chapter of legislative history. The main reasoning is that in Khas Mahal estates, the State Government is the proprietor or zemindar and as the lands are granted or settled by the Government itself or by any Government which preceded it, they are outside the purview of the Act and consequently outside Section 5A thereof. Besides the reasonings given by my learned brother, and apart from the fact that the definition of "Estate" includes Government Khas Mahal and revenue-free lands, I may refer to the principle laid down by the Supreme Court in the case of Amar Sarjit (Supra), where similar argument was advanced on the resumption of jagirs [see (1962) Supp. 3 S.C.R. 346 (366], which was not accepted.

His next submission is that the Act and consequently Section 5A does not apply at any rate to Chukhani tenures in Alipur Duars, in the District of Jalpaiguri. My learned brother has thoroughly discussed the point and I need hardly add anything.

I agree most respectfully with the decision arrived at by my learned brother on this topic. I hold that Section 5A applies to transfers of lands situate within Government Khas Mahal and also to transfers of lands appertaining to Chukhani tenure in the District of Jalpaiguri. Mr. Das Gupta at first attempted to submit further that the Act was not made applicable in the area where the disputed lands are situate but it appears that there are notifications which have been issued covering the area in dispute at Jalpaiguri making the Act applicable. Both the contentions of Mr. Das Gupta fail.

Another short argument, raising a very complicated question, is advanced, viz., whether the enquiry u/s 5A can be directed to the transfers in respect of tank-fisheries and the lands containing mines and minerals and other lands mentioned, in Section 6(1), of the Act from Sub-clause (f) to Sub-clause (1) thereof, accepting that the transfers are made within the condemned period, between the prohibited relations and for the two so-called unlawful objects.

It is true that there are lacunae in the Act regarding tank-fisheries and also it is true that Section 5A(7)(i), refers to Chap. IV of the Act which deals with mines and minerals, but the introduction of the said Chapter IV in the said Section 5A(7)(i), might be only for the purpose of compensation in respect of those cases where the intermediaries, owning mines and minerals, have estates also. Secondly, the Act is intended for agrarian reforms which by its nature and in its content should exclude mines and minerals. Thirdly, neither the decision of Sinha J., in the case of Katras Jheria Coal Co. v. State of West Bengal (Supra), referred to by my learned brother, nor any of the observations made therein, have any binding effect on the present issue. It is also made clear that the correctness of the ratio and the said decision is not accepted. More so, as it is said to be pending decision in appeal. No final opinion is, therefore, expressed on the said decision as I should not think myself obliged, whatever might be my personal view, to decide the issue unnecessarily, as the tank-fisheries are fishy in the context and as in the mines normally there is darkness upon the face of the deep.

Mr. Sarat Chandra Janah, and after him Mr. Swadesh Bhusan Bhuinya, the learned Advocates, complain in C.R. Case Nos. 3073 and 3074 of 1962 that the Settlement or Revenue Officers started innumeable cases separately, each case being based on each khatian, several of which could have been disposed of in one case. They contend that it is not only a great harassment to the parties but it is likely to lead to anomaly, if one officer holds a document as bona fide and the other officer finds it to the contrary.

The answer is simple and there are good reasons for following such a procedure, viz. (1) where there are several transfers by one document. (2) As different jurisdictions over different areas have been created for different officers under the Act, Rules and Notifications, which are not disputed ; and as an intermediary might have lands spread over in more than one district, a separate case on each different khatian is possibly convenient. (3) If there is likely to be no prejudice or harassment to a party or no anomaly, there is no harm in starting separate cases. (4) Lastly, there is no bar to such a procedure under the Act or the Rules. of course there is no scope for two different officers to hold different enquiries over the same transfer. The learned Advocate should keep in his mind the distinction between a document and a transfer. No case of hardship or harassment is made out in these cases. Even if anomaly occurs, which I do not see at present, this undue method of trial and error should then be avoided. The officers may hear, again, all the cases analogously though started separately (as found in many of the Revision Cases before us). The contention therefore fails.

The next point argued by Mr. Lala that it is not permissible for the enquiring officer to hold u/s 5A a portion of the same document bona fide and the other portion not bona fide. I agree with my learned brother most respectfully with his reasonings and I hold that it is permissible to find so in respect of the same document but not in respect of the same transfer, because the one document may contain several transfers, some of which may be bona fide and some may be not bona fide. Because the enquiring officer once found a "transfer" bona fide it cannot be said that he should, on that ground alone, drop the document as a hot cake without investigating the nature of the "not bona fide character of other transfers (if they arise) in the very same document. The submission, therefore, cannot be accepted. I further hold that the disputed transfers by the four types of documents fall within Section 5A and co-sharer''s transfer should not be test.

Mr Dutt''s one of the other points is that the enquiry u/s 5A in respect of the land which is transferred cannot be started, after the Record of Rights in respect of the same land is finally published. His ground is that the fact of retention has to be decided finally before the final publication of the Record of Rights. He places the Scheme of the Act for the said purpose, which has been dealt with in detail by my learned brother. Mr. Dutt also places Sections 4, 5 and 6 including particularly Sub-Section 2 of Section 6 of the Act. Section 13 and also Sub-Section 5 thereof, Sections 14(1), 39 and 44 of the Act including Sub-Section 1 proviso thereof and Rules 4A and 25 and lastly para. 7 to Schedule B of the Rules were placed. My learned brother has dealt with the point in some detail and has not accepted Mr. Dutt''s contention.

I might add:

(a) There is no time limit either in the Act or in the Rules for invoking Section 5A and for starting enquiry under the said section.

(b) Though there is nothing in the Act and the Rules how the order of the Settlement Authorities is passed allowing retention or how the intermediary is informed about the result of the retention, it is reasonable to hold that the entries in the final publication of Record of Rights is one mode of expression or acceptance of the position by the Revenue Officer allowing or disallowing retention of the intermediary. The said argument, however, need not be pushed higher than that, because of Section 6(2) and because Section 45A of the Act specifically mentions Section 5A of the Act.

(c) The Act provides for revision of the Record of Rights even after the final publication.

(d) Though the proviso to Section 44(1) of the Act indicates the pendency of Section 5A proceeding at the time of draft publication of Record of Rights, but it does not say "always", it would have been no doubt better, as also supported by Section 44(2A), if the enquiries u/s 5A start before the final publication of the Record of Rights, but many similar curiosities are to be found throughout different provisions of the Act which, as strenuously argued, is passed by mostly unprofessional people in the kind of which, as submitted, none but a technically educated mind should indulge in.

(e) According to Mr. Dutt under Sub-Section 5 of Section 6 of the Act, there is only one choice for retention. He also draws our attention to Section 14(1) of the Act which provides that the Compensation Assessment Roll is to be published on the basis of the final publication of the Record of Rights. He submits that there would certainly be anomaly if the Record of Rights be changed after the order is passed u/s 5A without the Compensation Assessment Roll also being changed. The fallacy in the argument is that the Compensation Assessment Roll refers to the land which is vested in the State Government and no question of retention by the intermediary of the said land can arise. Secondly, the statute does not say so. Thirdly, Section 16(1) of the Act, occurring in the chapter on compensation, refers to Section 6(1) of the Act dealing with retention which section again is dependent on Section 5A. Fourthly, there might be procedural defects and I agree that the pussy-footing procedure, if any, should be replaced and their sterility to be removed but that would not change the substantial law, as is sought to be argued now. Mr. Dutt, it appears, has not yet forgotten the old tradition of the Bengal Tenancy Act, which Act itself is feeling insulted in at least two ways as being stamped as confusing and useless for the last seven years, for not being repealed by the Land Reforms Act. Continuity and the respect for it is a delightful sight to the old eyes but to the modern beholder, particularly in the presence of admiring humans, it Only makes of the mind a fossil.

(f) Lastly, Mr. Dutt''s submission is that differences are bound to arise among the cases started u/s 5A where the Records of Rights are already finally published and where they are not. But this does not answer the point at issue and help Mr. Dutt. Though there may be inequalities but that only confirms the view that how relatively little we still know about the complex factors that affect the Act and the Rules in the process of being absorbed into and distributed throughout the bodies of the raiyats and the under-raiyats on which it is submitted that fantastic achievements matched by fantastic failures might be the result.

In attempting to meet the argument, the learned Government Pleader faintly submits that the Record of Rights records the state of things as they are on the date of vesting and not on the date of its final publication. The said contention again, in my view, is not free from controversy, which is not necessary to be decided.

I respectfully agree with the reasoning of my learned brother as to why the principles laid down in the case of Ramnugar Cane and Sugar v. State of West Bengal (Supra), do not apply to the instant cases and I need not repeat them.

It is argued by Mr. J.K. Sen Gupta in Civil Revision Case Nos. 1043-1056 of 1961 that none of the varieties of the Appellate Tribunals, whether constituted u/s 5A(6) or under Sections 11(2), 20 or Section 44(3) of the Act, had any power of remand for sending the cases back for rehearing by the Tribunal of first instance. We are concerned here with the Appellate Tribunal u/s 5A(6) for remanding the enquiry cases u/s 5A.

My learned brother has thoroughly and elaborately discussed this point. I respectfully agree and I hold that the lower Appellate Tribunal in dealing with the appeal u/s 5A(6) of the Act has got the power of remand to send the case back to the enquiring officer for rehearing as a whole or for hearing on any point or points as may be directed by the Appellate Tribunal. Power to decide and dispose of an appeal, in my view, includes the incidental power of remand. As submitted, Section 55 of the Act, particularly Sub-Section 2 thereof, does not bar the exercise of the power of remand. With respect, I find it difficult to follow and apply the ratio of the decision of Bachawat J. in the case of Mamata Ghosh and Others Vs. Mrs. Charu Chandra Mandal and Another, , arising on the provisions of the Thika Tenancy Act to the instant cases. Though reference has been made in the said decision to the decision of the Judicial Committee in the case of Adaikappa v. Chandra Sekhar 74 I.A. 264 : 52 C.W.N. 275, the same is clearly distinguishable and cannot be applied to the instant case in any event. Moreover, they said decision of Bachawat J., it might be contended, has been impliedly over-ruled in the Bench decision of this Court in the case of Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, , I may mention that but for the jurisdiction under Article 227 under which these Rules were issued, I would have had no hesitation in finding that the transfers in these cases are not bona fide.

It was next argued by Mr. Nagendra Nath Saha and Mr. S.N. Dey, the learned Advocates appearing in C.R. Case Nos. 4658 to 4664 of 1960, that where there is an earlier decision in an enquiry case u/s 5A on the question whether a transfer is bona fide or not, by the Revenue or Settlement Officer, on the same "document" between the same transferor and the transferee or their heirs or successors or assignees, there cannot be any further enquiry and the State Government is bound by the doctrine of res judicata or on principles analogous thereto. Alternatively, it was argued, that there cannot be successive enquiries by the State Government or by the enquiry officer in respect of the same "transfer".

It is again a loaded point, multi-barrelled, because of the ill-phrased statute and it is perplexing, because of the torture of common sense. The principle of res judicata might be treated lightly by those who help to legislate in hurry, litigate with pleasure with the money of others, and profess to repent naturally at leisure, but certainly the principle of res judicata is a wholesome principle and is meant only for the finality of litigation.

In my opinion the said principle would have been applicable if the issues to be decided and the enquiries u/s 5A of the Act are not limited by their very nature. The object of Section 5A, as already stated, is only to see whether more lands are attempted to be retained or more compensation is going to be received. Section 5A itself speaks that the enquiries are for the aforesaid two objects and then again not for all purposes but only for the purpose of the Act, at least not for the purpose of decision of the right and title between the transferor and the transferee in respect of the transferred land which would be the subject-matter of enquiry. Section 5A(3)(i) speaks of three things: "without prejudice", "deemed to be the land", and "for the purposes of the Act", which elbow the principle of res judicata from the field.

To bind the State Government with the principle of res judicata, further questions were posed, viz., as to whether the State Government, in such enquiries, is a silent witness or, according to some of the learned Advocates, merely a watch-dog barking at times. Again, whether the State Government can be a privy, intervener and/or a party interested in such enquiry cases. The question may also be considered from the view-point as to whether the State Government, even though not a party to the proceeding u/s 5A, can prefer an appeal to the Appellate Tribunal against an order passed by the enquiring officer u/s 5A or it can move this Court in its revisional jurisdiction or under the provisions of Articles 226 and/or 227 of the Constitution. The provision of service of notice by the Collector on the State Government at the appellate stage as provided in the Act and the Rules was also argued in support of the contention that the State Government should be deemed to be a party in all such proceedings started u/s 5A though not a party made in name. In view of the discussion on other points it is not necessary to pursue the point further. The provisions of Section 127 of the Transfer of Property Act do not help Mr. Saha.

My learned brother has discussed on this topic, the Supreme Court cases of Raj Laxmi, Burn and Co., and Bhagwan Das. Mr. S.N. Dey submits that the case of Raj Laxmi is not even referred to in the case of Bhagwan Das, which decision supports his contention. What I find that even "Bhagaban" is not of much help to Mr. Dey.

I would, therefore, like to hold that the State Government or its officers would not by their own precedents be entitled to start successive enquiries u/s 5A of the Act on the principles analogous to the principles of res judicata only when (1) the State Government is a party to the earlier proceeding of enquiry, (2) when the later proceeding relates to the same transfer of the same land in respect of the same parties, (3) when the same purpose has been considered earlier, (4) when the earlier Tribunal was of competent jurisdiction and (5) when the issue has been in a sense finally decided (though in a limited way), i.e., so far as Section 5A could make it final.

It is, in my judgment, plain that the sole considerations by which the Settlement and Revenue Officers are entitled to be influenced in arriving at decisions in such enquiry cases, u/s 5A of the Act, are considerations of justice between the parties and they are entitled to be accentuated by elementary principles of reason. No question of policy (whether intolerably stuffy or cautious and worthwhile) and no extraneous consideration must arise and influence them.

The duty imposed upon the enquiring officer by the Act and the Rules is the duty of acting like a Judge and deciding the matter, though for a limited purpose. In reaching such decisions the enquiring officers must, of course, be competent and impartial. No consideration of administrative convenience or executive efficiency should be allowed to weaken them. They must duly and faithfully record the proceedings of enquiry which should be open for inspection and of which copies should be supplied on payment of costs. They must record the evidence in full, examine the same, as also examine the information offered before recording the order. They must do so critically and dispassionately. They must listen to the representations and weigh objections. The parties in such enquiry cases u/s 5A have a right to be heard on the second principle of natural justice, namely, no party should be condemned unheard. The aggrieved party must know in good time the case which he has to meet. Discreet and careful officers may like to hear lawyers of the parties. They would decide the enquiry cases only for the limited purpose without administering the consequences and such a decision should be in the form of a reasoned document. The enquiry must be public and the proceeding open. Time spent in removing a grievance or in avoiding the sense of it is time well spent, and the enquiring officers will, like good Judges, amplify their jurisdiction by rooting it in the public confidence.

On the extent of jurisdiction and power of superintendence of the High Court under the provisions of Article 227 of the Constitution which have been seriously pressed into service on the Government side, for dismissing all these cases straightway, I do not think anyone will dispute that such jurisdiction is important and its exercise is wholesome. That the jurisdiction should be no less vigilantly exercised in the case of Tribunals and authorities than in the case of a Court of law is also clear.

It is true that the power under Article 227 is to be exercised sparingly. It is also true that the jurisdiction is not appellate so that every mistake of law may be corrected, but in my view the power cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially in the facts of each case. To attempt in any one case to lay down a set of iron rails, in which the power of superintendence is always to run, would, in my opinion, be perilous. The tests which, in my view, should guide the High Court for the exercise of the power of superintendence under Article 227 of the Constitution are as follows:

(a) When the Court or Tribunal below outstrips the limits of its jurisdiction, or

(b) acts in excess of its authority vested by law, or

(c) within the limits of its authority functions, which is not within the letter and spirit of the law, or

(d) contravenes the Act or the Rules, or

(e) where there are flagrant violations of law, or

(f) where the findings are not supported by any evidence or based on no evidence, or

(g) where there is miscarriage of justice.

On the other hand, if a properly constituted Tribunal has exercised the jurisdiction entrusted to it in good faith, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the High Court should not interfere.

The above tests, viz., (a) to (g), find support from the following decisions of the Supreme Court in the cases of, viz., D.N. Banerji Vs. P.R. Mukherjee and Others, , Waryam Singh and Another Vs. Amarnath and Another, , Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , State of Orissa v. Murlidhar AIR (1963) S.C. 404.

Harries C.J., speaking for the Bench in the Special Bench decision of this Court, viz., Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, , which decision was approved by the Supreme Court in the case of Waryam Singh and Another Vs. Amarnath and Another, , did not exercise the power under Article 227 because "there was no injustice in the case" and "the order is neither unjust nor harsh". My learned brother, presiding over a Division Bench in the case of Ranjit Kumar Ghose Vs. Secretary, Indian Psycho-Analytical Society and Others, , held that the power under Article 227 can be exercised even suo motu by the Court as "the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such".

There are many other Bench decisions of this Court, viz., Haripada Dutta Vs. Ananta Mandal, , Pulin Behari Dinda and Another Vs. Byomkesh Mitra and Others, , Sm. Subodh Bala Biswas Vs. State of West Bengal, , Rebati Ranjan Chakravarty and Others Vs. Umaprasanna Mukherjee and Others, , Paresh Nath cloth Stores Vs. Nityananda Pal and Others, , Narendra Nath Chatterjee Vs. Commissioners of Bally Municipality, , and Durgasree Stores Vs. Board of Revenue, West Bengal and Another, , which do not lay down any contrary tests, rather support them. I leave out of consideration another Bench decision of this Court in the case of Nibaran Chandra Bag Vs. Mahendra Nath, , as it went to the Supreme Court and my learned brother discussed the said Supreme Court decision.

The Supreme Court in the case of Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , held that superintendence under Article 227 is both administrative and judicial.

I have now surveyed the field and it only remains to state the general conclusions on the whole matter in all the cases, which are as follows:

(1) Under the Act, the raiyats and under-raiyats become intermediaries and their interests become "estates" within the meaning of Article 31A of the Constitution. In any event their interests become "rights" in relation to an estate within the meaning of Article 31A(2)(b), of the Constitution.

(2) The unconstitutionality of Section 5A is protected by Article 31A of the Constitution.

(3) Section 5A of the Act does not abridge Articles 14, 19(1)(f) and 31 of the Constitution and, therefore, not being inconsistent with Part III of the Constitution, is not ultra vires the said provisions. Section 5A does not invade the fight to hold the property. It is not a legislation for deprivation of property.

(4) Section 5A(2) is not ultra vires Article 31(2) of the Constitution.

(5) Section 5A is not ultra vires Article 246(3) of the Constitution. The State Legislature has legislative competence to enact Section 5A.

(6) Section 5A is not ultra vires Article 154 of the Constitution and is not unconstitutional and void as it did not confer on the executive, the judicial powers and functions of a Court in declaring and cancelling the transfers made between May 5, 1953 and the date of vesting.

(7) Section 5A(4) cannot be struck down for excessive delegation by the State Government to its officers to form the opinion. It is not a case of double delegation in view of Article 54(1). Rule 3A of the Rules is not ultra vires Section 5A(1) for such delegation.

(8) The expressions "I am of opinion" and "may not be bona fide" satisfy the requirement of Section 5A(1) of the Act. Formation of opinion by the State Government or its officers u/s 5A(1) must not be an airy opinion. There must be prima facie reasons to support the same. The proceeding for enquiry does not become defective only on the ground for entertaining applications from Bargadars or other persons prior to the starting of the enquiry.

(9) After the opinion is rightly framed by the State Government the initial onus would be on the transferor or the transferee to prove otherwise.

(10) The rights and interests of raiyats and under-raiyats in their lands have vested in the State Government. The decision of Sinha J., in the case of Katras Jharia Goal Co. (Supra), is distinguishable.

(11) There is no difference to the rights of raiyats and under-raiyats in khas possession of their lands. They cannot complain that they had no knowledge of the coming statute.

(12) Section 5A does not violate the principles of natural justice and is, therefore, not void. Procedure in Section 5A is not an attempt to roll up in one organ the Judge, the prosecutor and the party.

(13) The proceeding u/s 5A is a quasi-judicial proceeding and the power is a quasi-judicial power and not executive. The decision by the Tribunal in the enquiry u/s 5A never partakes the character of a decision which disposes of the whole matter for all purposes. The decision, though a reasoned document, must rest content with the limited purpose, viz, with the declaration as to whether a transfer is bona fide or not bona fide. No decision of right and title of the parties is permissible.

(14) It is no part of the duty of the State Government or its officers to administer the consequences in Section 5A(3)(i) and Section 5A(3)(ii) of the Act for deduction of the land from the ceiling of the transferor''s retained lands. The provision of Section 5A(3)(ii) is not a provision for penalty.

(15) Section 5A is not discriminatory between the same class of bona fide transferors, similarly circumstanced. Section 5A(7)(ii), is not discriminatory because of the exclusion of other relations.

(16) Both the tests in Section 5A(7)(i) can be applied and can go together in the case of the same transfer.

(17) Presumption in the proviso to Section 5A(7)(ii) would arise only when the transferor owned between May 5, 1953 and the date of vesting more than 25 acres of agricultural land together with 20 acres of non-agricultural land. The said presumption is rebuttable.

(18) Benami transfers can be enquired into u/s 5A. Decision of Sinha J., in Ananta v. L.R. Officer (Supra), is not correct.

(19) Bargadars are not necessary parties in Section 5A enquiry cases.

(20) Section 5A applies to transfer of lands situate within Government Khas Mahal. It also applies to transfer of lands pertaining to Chukhani tenure in the District of Jalpaiguri.

(21) The question whether Section 5A enquiry cases be directed to the transfers in respect of lands containing mines and minerals or tank-fisheries, etc., is kept open. The correctness of the decision of Sinha J., in the case of Katras Jharia Coal Co., (Supra), is not affirmed.

(22) Starting of separate Section 3A enquiry case on separate khatian is permissible.

(23) On the point of res judicata, it is permissible for the enquiring officer to hold a transfer as bona fide in one part of the document and to hold another transfer as not bona fide in the other part of the same document but it is not permissible for the State Government or its officer to have successive enquiries over the same transfer between the same transferor or transferee or their heirs or assignees, when the said purpose has been considered and when the earlier Tribunal was of competent jurisdiction.

(24) Enquiry u/s 5A can be started. regarding the transfer of the lands in respect of which the Record of Rights is finally published.

(25) The Appellate Tribunal constituted u/s 5A(6), has the power to remand to the enquiring officer for rehearing of the Section 5A cases.

(26) The service of the copy of the order under Rule 3A(2) of the Rules is to be effected particularly when the parties have not appeared.

(27) The use of the term "big raiyat" is a barbarous, artificial and loose expression having no legal sanction and should be avoided.

(28) The duties of the inquiring officers are inter alia to follow the principles of reason and justice and to ignore the policy of the Government and other extraneous consideration. The proceedings including evidence are to be duly recorded. They should give a proper hearing. Enquiry must be public and the proceeding is open.

(29) It is doubtful whether a Court should avoid deciding a point necessary for decision on the ground that no satisfactory argument is advanced. The ratio of the Bench decision in Dakhyabala v. State of West Bengal (Supra) is doubted.

(30) High Court''s power of superintendence under Article 227 though not appellate, where every mistake of law can be corrected, might be exercised even suo matu as the custodian of all the justice and for vindication of its position, on different sets of tests laid down by the Supreme Court.

As to the types of orders passed in these cases, I have grouped them in the beginning of my judgment. The only type of order that the enquiring officer and/or the Appellate Tribunal is or are entitled to pass in Section 5A enquiry cases is only the type of order, viz., a declaration as to whether a transfer is "bona-fide" or "not bona fide". The officer and the Appellate Tribunal must stop these and should not further proceed to administer the consequences, viz., by passing any further order or direction deducting the proportionate lands of the transferor from his retained lands or declaring that a certain area of land of the transferor or the transferee has vested in the State Government or by simply reciting the whole of Clause (ii) of Sub-section (3) of Section 5A which appears to the bona fide transferors as the picture of a wolf in the garb of a lamb.

It seems particularly unfortunate to the learned Advocates that law has formed no portion of liberal education to many of those who have given birth and thereafter nurtured this section and to some officers who are authorised to translate it into action. Whatever confidence all of them might have in the propriety of the measure they cannot, in the opinion of the learned Advocates, pronounce absolutely upon its success without experience and that before recommending its perpetual confirmation they ought to have that experience. I am glad that the surprising feature up till now is that more mistakes have not been made.

I, therefore, without any hesitation and in respectful agreement with my learned brother, concur in all the respective orders passed in the other respective cases without any order for costs, having regard to the important issues involved in these cases, which needed clearing up.

As Section 5A is broadly framed with mighty phrases and undue generality and though it leaves us free to perform our role of formulating more definite standard which we have attempted to do in these cases but within the general mandate of the Act, I still feel that the more questions, viz., fixation of ceiling, amount and payment of compensation and other questions still hidden in the darkness of time and in the Act, are answered; the more they are to be answered. It is not even the beginning of the end although it may be more than the end of the beginning. Nevertheless, I cannot take ten years of confusion from May 5, 1953, lightly; as many other problems still remain to be answered which appeared in the discussion before us giving sufficient inkling of the vastness and intricacy, but to which we have not purposely referred to or have not decided but kept open (being not necessary to do so in these cases). At least a dozen decisions or more might be needed, before the working of the Act and the Rules becomes clear, provided in the meantime there are no amendments to them, to add to the confusion.

Although one hesitates to say in criticism, I shall venture to say that the land laws in our country, particularly in this State (being a place for landed aristocracy), should have been changed after a deliberate, calm and patient survey of the same, attempting no sudden transformation, not cutting at the roots and growths of centuries, the products of a people''s life in its gradual evolution but pruning and transplantation at places with careful and loving hands were necessary even though the result might have been a bit small in scope and a bit slow in coming. The objective should have been deliberation rather than speed, discretion rather than valour.

By this I do not suggest a return to the vast feudalistic holdings; but in the search for a democratic solution to age-long problems of land ownership, one is to see whether one of the objectives of the Act, viz., whether the explosive gap between the few "haves" and the many "have nots", has been filled up without leaving really a delicate balance between the two forces. In the background of repeated arguments from the Bar as to feeling of the peasantry of their impoverishment, and sense of their frustration and exploitation, the most promising and least disruptive democratic approach to land reforms, in my view, should lie in a full and complete legislation with a series of inter-related actions. I hope that my criticisms in the last as well as in this paragraph should not be taken as poaching on the supposed preserve of others. They shbuld be taken in the light they are made.

The colour of the raiyats and under-raiyats in the State of West Bengal no doubt changes. They, being upgraded as intermediaries, become new overlords and as such they can expect at least the greetings of the tillers of the soil at the gates, who in their gawking peasant fashion might also like to catch a glimpse of these new overlords, stated to be landless labourers in their paternal field, without sufficient quantity of food and without proper clothes as a walking disgrace to the old land system of Bengal.

For all these reasons I respectfully concur that the Rule should be discharged without any order for costs.