Ramkrishna Mullick vs State of West Bengal

. P.K. Banerjee, J.—The short and important points involved in this rule arc that whether the West Bengal Estates Acquisition (2nd Amendment) Act, 1973, is a valid piece of legislation. The amendment which is a subject-matter of the litigation is as follows:

The West- Bengal Estates Acquisition (Second Amendment) Act, 1973 Act to amend the West Bengal Estates Acquisition Act, 1953.

Whereas it is expedient to amend the West Bengal Estates Acquisition Act, 1953, for the purposes and in the manner hereinafter appearing ;

It is hereby enacted in the twenty-fourth year of the Republic of India by the Legislature of West Bengal, as follows:

(1) This Act may be called the West Bengal Acquisition (Second Amendment) Act, 1973.

(2) In the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the said Act), for the proviso to Sub-section (1) of Section 7, the following proviso shall be substituted , namely:

Provided that where the intermediary agrees in writing that the whole of the compensation money payable to him including the amount recovered by the State Government under the pro visions of Section 9, if any, may be adjusted against the arrears recoverable from the intermediary under this Sub-section, no other mode of recovery shall be adopted or the recovery of any such arrears, except the balance, if any, remaining due after such adjustment, and suits and proceedings, if any, pending for the recovery of any such arrears shall remain stayed until such adjustment has been made.

The West Bengal Estates Acquisition (Second Amendment) Act, 1973 (Clauses 3-5).

(3) In Sub-section (4) of Section 44 of the said Act, the words, ''until it is proved by evidence to be incorrect'' shall be omitted.

(4) Section 46 of the .said Act shall be omitted.

(5) After Section 57A of the said Act, the following section shall be inserted, namely:-

57B(1). Where an order has been made under Sub-section (1) of Section 39 directing the preparation or revision of a record of-rights, no civil Court shall entertain any suit or application for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates, and if any suit or application, in which any of the aforesaid matters is in. issue, is pending before a civil Court on the date of such order, it shall be stayed, and it shall, on the expiry of the period prescribed for an appeal under Sub-section (3) of Section 44 or when an appeal has been filed under that Sub-section, as the case may be, on the disposal of such appeal, abate so far as it relates to any of the aforesaid matters.

(2) No civil Court shall entertain any suit or application concerning any land or any estate, or any right in such estate, if it relates to (a) alteration of any entry in the record-of-rights finally published, revised, made, corrected or modified under any of the provisions of Chapter V, (b) a dispute involving determination of the question, either expressly or by implication, whether a raiyat or an intermediary is or is not entitled to retain under the provisions of this Act such land or estate or right in such estate, as the case may be, or

(c) any matter which under any of the provisions of this Act is to be, or has already been enquired into, decided, dealt with or determined by the State Government or any authority specified therein, and any such suit or application which is pending before a civil Court immediately before the commencement of the West Bengal Estates Acquisition (Second Amendment) Act, 1973, shall abate so far as it relates to all. or any of the matters referred to in Clause (a), Clause (b) or Clause (c), (3) Any dispute referred to in Clause (b) of Sub-section (2) may be decided by a Revenue Officer not below the rank of an Assistant Settlement Officer, specially empowered by the State Government in this behalf, who shall dispose of the same in such manner as may be prescribed:

Provided that in deciding a dispute under this Sub-section the Revenue Officer shall not reopen any matter which has already been enquired into, investigated, determined or decided by the State Government or any authority under any of the provisions of this Act.

(4) Any person aggrieved by a decision of the Revenue" Officer made under Sub-section (3) may appeal to the prescribed authority not below the rank of a Settlement Officer, within such time, in such manner and subject to payment of such fees as may be prescribed.

West Bengal Estates Acquisition (Second Amendment) Act, 1973 (Clause 5).

(5) A decision made by the Appellate Authority under Sub-section (4) shall be final. .

Explanation: In this section (i) suit includes an appeal, and (ii) an authority includes an authority to hear an appeal.

This Act was passed by the West Bengal Legislative Assembly on the 9th May, 1973. Apurba Lal Majumdar Speaker, West Bengal Legislative Assembly. Dated the 10th May, 1973.

The amendment came into force on July 12, 1973. On July 24, 1973, draft rules were framed. It was stated that the draft rules would be taken into consideration on or after August 16, 1973. At the date of hearing, however, on August 28, 1973, the final draft was not brought to my notice when the bill was introduced in the West Bengal Legislative Assembly, objects and reasons for the Act stated to be as follows:

Implementation of the provisions of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954), has been greatly impeded due to institution of suits in civil Courts by intermediaries and big raiyats,. A very large number of such suits have been pending in different civil Courts for years together. When the Act itself contains provisions for appeals which are heard by Tribunals and Special Judges, there is no reason why implementation of the Act and distribution of land which vested in the State by the operation of the Act, to landless cultivators, should be further delayed through recourse to civil Courts. It is, therefore, necessary that the jurisdiction of civil Court should be effectively barred and all pending civil suits should abate so far as they relate to alteration of any entry in the record-of-rights, power to retain land and matters which are to be or have already been enquired into or determined under the provisions of the Act.

(2) It is also necessary to provide for adjustment of arrear Government dues against the whole of the compensation payable to, an intermediary who is willing to have the dues so adjusted.

(3) The Bill has been framed with the above objects in view.

C.R. No. 2287(W) of 1973, C.R- No. 2273(W) of 1973, C.R. No. 2274-(W) to C.R. No. 2276(W) of 1973 and C.R. Nos. 2285(W)-2286(W) of 1973 are all heard together as common questions of law are raised in all these cases.

Mr. Arun Kumar Dutta on behalf of the Petitioner argued that Section 57(B)(1) is nothing but the re-enactment of the provision of Section 46 of the West Bengal Estates Acquisition Act. u/s 57(B)(1) of the Act, the civil Court''s jurisdiction insofar as the determination of rents or determination of the status of any tenant or the incidents of any tenancy in the record-of-rights is concerned, has been taken away. Mr. Dutta, therefore, argued that though specifically its jurisdiction had been taken away still the Civil Court had jurisdiction to determine whether the issues in the suit relates to those matters and the suit cannot automatically abate.

Mr. Arun Kumar Matilal contended and agreed with Mr. Arun Kumar Dutta that automatic abatement of the suit was not indicated by the Legislature, Mr. Matilal contended that the ouster of jurisdiction of the civil Court is violative of Article 14 of the Constitution and all the civil actions must be amenable to jurisdiction of civil Court.

Mr. Basanta Panda, and Mr. Bhunia contended that Sections 46 and 57(B)(1) of the amending Act are matters during the preparation of record-of-rights and that they only provide for the abatement of the suit pending preparation of the record-of-rights. After the record-of-rights are prepared, suits can be filed arid the provision cannot be made in respect thereto by the Legislature.

Mr. Ranjit Kumar Banerjee contended that the possession and title are two. different concepts in law. An abatement of all pending cases is an arbitrary action and unreasonable restriction. The effect of the amendment means, the question of title cannot be agitated and the record-of-rights even if wrong must be taken to be conclusive.

On behalf of the Respondents three different sets of lawyers have appeared led by Mr. Hemendra Chandra Sen and Mr. P.K. Sen Gupta and Mr. Sachin Das Gupta three sets of argument were advanced. Mr. Sen on behalf of the Respondents in the civil Rule argued that the West Bengal Estates Acquisition Act was enacted for nationalization of land and for establishing socia-9 listic pattern of Government. Section 3 of 1973 Act makes an amendment of Section 44(4) of the Act by which the words ''until it is proved by evidence to be incorrect'' were deleted. It is argued by Mr. Sen that omission of these words docs not very much, challenge the question of presumption of record-of-rights and the record of rights does not by that process become conclusive. The record-of-rights is only a presumption and nothing at all. Section 57(B)(1) is not a new section but is a repetition of Section 46 of the parent Act of 1953.

Mr. Das Gupta on this aspect of the question contended that Section 57(B)(1) relates to the suits in respect of the matters enumerated in the body of the section, and insofar as it relates to the said matters the record-of-rights is conclusive and cannot be challenged by way of suit and the suit in respect thereof abates. Mr. Das Gupta contended that u/s 46 of the parent Act which is in pari materia with the present Section 57(B)(1) the suit could have been filed, but by the present Act of 1973 the suit is barred, but in the proceedings under Sections 37 to 47 regarding preparation of the record-of-rights the Petitioner herein has only alternative remedy for adjudication of his grievance. Mr. Bhunia states that the State Government directed to the effect that all suits automatically abate. It is argued by Mr. Das Gupta that it cannot be so. Suits do not abate automatically and the order must have been passed by the Courts concerned before the abatement. It is argued by Mr. X Jas Gupta that it is for the Court to determine the process concerning the abatement of suits and only it the suit comes within mischief of the section relating to the issue mentioned in Section 57(B)(1), suits can be abated. It is further argued by Mr. Das Gupta that any other- suits not coming within the mischief of Section 57(B)(1) of the Act are not barred. It is further argued that Section 57(B)(1) of the Act does not take away the rights to adjudicate the question of intermediary.

Insofar as Section 57(B)(1) is concerned it appears to me. that it cannot be said that the said section is bad on the ground as argued aforesaid. Section 57(B)(1) makes it clear that during the preparation of" record-of-rights, no civil Court shall entertain any suits or application for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights should be stayed pending the same and after the order is passed and an application u/s 44(3) is either filed or it shall on the expiry of the time prescribed for an appeal u/s 44(3) of the Act, it shall abate. It appears to me that the record-of-rights can be stayed during the preparation of the record of-rights and the right of the civil Court to entertain such suits in respect of such matters is either stayed or the suit abates. Unless such provision is made, there may be difficulties in the matter of the process of preparation of the record-of-rights. Such provisions were there in Section 46 of the parent Act which came for interpretation in Dhirendra Nath Boss and Others Vs. Sushil Kumar Safui and Others, and Kalipada Mandal and Others Vs. The State of West Bengal and Others, . In all those cases it has been held by the Court while interpreting Section 46 of the Act that such provisions are valid.

The Legislature has a right to take away the jurisdiction of the civil Court in respect of any matter coming within the mischief of the West Bengal Estates Acquisition Act which can be decided by the Tribunal under the Act. Here this has actually been done by the provision of Section 57(B)(1) of the Act. Section 57(B)(1) makes it clear that during the preparation of record-of-rights the suit must remain stayed, and after the order is made and the time for appeal expired, the suit will abate or, in other words, u/s 44 of the West Bengal Estates Acquisition Act the parties to the proceeding may file objection. If he is aggrieved he can file, appeal u/s 44(3) of the Act. In that view of the matter, though the civil Court''s jurisdiction has been taken away, the parties aggrieved have been protected under the Act. If the Tribunal is constituted under the Act and within the four corners of the statute the civil Court cannot have any jurisdiction to agitate the same question over again by a suit as the suit itself has been specifically barred by the Legislature. As it has been held by the Supreme Court in Kamala Mills Ltd. Vs. State of Bombay, , it has been held that where the statute gives a finality to the orders of the special Tribunal the civil Court''s jurisdiction must be held to be excluded if there is adequate remedy to dp. what the civil Court would normally do in a. suit. Such provision, however, does not exclude these cases where the provisions of the .particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

It is, therefore, dear that the suit will be stayed u/s 57(B)(1) or will abate after a certain time and no civil Court shall entertain any suit or application regarding the determination of. rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates and if it is found that the statutory Tribunal u/s 44 of the Act has acted without jurisdiction or in violation of the principle of natural justice. Apart from the question of determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates, of course the civil Court''s jurisdiction is not ousted or, in the other words, in spite of the specific jurisdiction of the civil Court, still the civil Court will have power to decide the question. If it is found that the constitutional validity of the section seeks to be challenged or for that matter the principle of natural justice is violated, it does not come within the mischief of Section 57B(1) of the Act. This provision of Section 57B(1) must be given full effect and Section 57B(1) cannot be said to be ultra vires of Article 14 or 19 of the Constitution as has been argued by the Petitioners.

The next section is Section 57B(1), (2) k (3) upon which both the sides strenuously argued that the said section is ultra vires of the Constitution of India. Section 57B(1) & (2) provides that no civil Court shall entertain any suit or application concerning any land or any estate, or any right in such estate, if it relates to (a) alteration of any entry in the record-of-rights finally published, revised, made, corrected or modified under any of the provisions of chap. V, and if such suit or application is pending before a civil Court immediately before the commencement of the West Bengal Estates Acquisition (Second Amendment) Act, 1973, shall abate so far as it relates to all or any of the matters referred to in Clause (a), Clause (b) or Clause (c) or, in the other words, any suit pending will abate, if it relates to alteration of any entry in the record-of-rights finally published, revised, made, corrected or modified under any of the provisions of chap. V. of the Act.

12 Mr. Arun Kumar Dutta and Mr. Matilal argued that the said section is ultra vires the power of the State Legislature. The Act is repugnant to Section 9 of the CPC Code, inasmuch as the entertainment of the suit is barred, Item No. 13 of Sch. VII of List III is a concurrent list and the provision has already been made in the CPC for entertaining the suit. This CPC is an existing law under Article 366(10) of the Constitution of India. Item No. 12 of the said list provides for evidence and oaths which has been provided in the Evidence Act also This is also an existing- law under Article 254 of the Constitution. It is argued by Mr. Dutta that the provision of Section 57(2)(a), (b) & (c) is ultra vires of Article 254(1) of the Constitution. Mr. Matilal contended that the present enactment is beyond the competence of the Legislature and is colourable and fraud of Legislature''s power." It is argued by Mr. Matilal that the present State Legislature is trying to amend the CPC by which the suit including an appeal abates and, therefore, by the colourable- exercise of power, the Legislature also sought of amend the CPC and the Evidence Act in the garb of amending the West Bengal Estates Acquisition Act: Section 57B(1), it is argued by Mr. Matilal, takes away the right of intermediary to file a suit, but he did not either fde an appeal against an order passed u/s 44(2a) and the unamended Section 44(4), but now the suit is barred. The persons, whose cases have been decided and those intermediaries whose cases have not been decided, cannot avail of the remedy provided in the Act. All pending cases abate, and in respect of the non-pending cases remedy has been provided in the statute. It is argued that it is arbitrary and is violative of Article 14 of the Constitution of India and it violates the principles that wherever there is a right there is a remedy.

On behalf of the Respondents Mr. Das Gupta argues that the provision is not repugnant. It is argued by Mr. Das Gupta that the State Legislature is competent to legislate in view of Items Nos. 35 and 45 of List II of sch. VII. In my opinion, the contention that the State Legislature is incompetent to enact the present legislation, is wholly incorrect under List II, sch. VII of Items Nos. 18 and 45. It is clear that the State Legislature is competent to enact the legislation regarding the land, that is to say, rights in or over land as also in respect of land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and record-of-rights and alienation of revenue. In the present case this has actually been done by the State Legislature by the exercise of power given to the State Legislature in Items Nos. 18 and 45 of List II of sch. VII. It is clear that the CPC refers to the litigation generally between the parties and a creation of Tribunal for purpose of the Act is a special matter ancillary to the power of the State Legislature. So also is the Evidence Act. In my opinion, on that ground it cannot be said that Section 5715 is ultra vhes of the State Legislature. While deciding - the identical question, the Federal Court held in Uady Chand v. Sama-rendra (1947) F.CR. 1 (F.C.) that though there is a separate entry for civil procedure in Item No. 4 of List III of the Government of India Act, 1935, the civil procedure is used in a general sense as the procedure applicable to litigation generally. It does not include a special law of procedure which is applicable only to a litigation regarding a special matter. It is further stated in the case of Megh Raj v. All Rakhin (1947) F.C.R. 77 (86) (P.C.) that entry No. 65 of the Government of India Act, 1935, is wide, enough to create and determine the''powers and jurisdiction of Court in respect of land as a matter ancillary to the subject of Entry 18. With this view, there cannot be, in my opinion, any dispute. The Legislature is competent to create a special Tribunal for the purpose of dealing with the question under the Special Act. The Legislature is competent under Item No. 18 of sch. VII of List II of the Constitution to enact such legislation. In my opinion, therefore, there is no substance in this contention that the Legislature is incompetent to bar the jurisdiction of the civil Court and to establish a statutory Tribunal for the purpose of deciding the cases within the four coiners of the statute.

The next point urged by Mr. Matilal is that the provisions of the West Bengal Estates Acquisition (Second Amendment) Act, 1973, do not come under the protection of Article 31 or 31A of the Constitution of India, and as they do not come within the mischief of Article 31A(l)(a). It is argued by Mr. Matilal that the., present amendment has no relationship with the question of acquisition of any estate or any right therein or the extinguishment or modification of any such rights.

Mr. Das Gupta on behalf of the Respondents also agrees that the present amendment does not attract Article 31A of the Constitution and, in other words, in order to see the validity of the provision of the Act, Article 14, 19 or 31 will have to be considered. Mr. Sen Gupta, however, appearing for the Government took a different stand altogether. He argues that Article 31A applies and, therefore, the amendment is immune from attack because of the violation of the Articles 14, 19 and 31 of the Constitution. The West Bengal Estates-Acquisition Act provides for the acquisition of estates, of rights of intermediaries therein and of certain rights or raiyats and under-raiyats and of the rights of certain other persons in land comprised in estates by the State. The Act provides for the assessment and payment of compensation in respect of the vested land to the intermediaries. Section 6 of the Act gives the right of intermediaries to retain such land as retainable under the said section. Section 12 provides for payment of ad interim compensation in respect of the vested land after assessment of the compensation payable to the intermediaries under Sub-section (1) of Section 14, or Sub-section (5) of Section 15, as the case may be. Section 14 provides for the preparation of Compensation Assessment Roll. Section 15 provides for filing and disposal of objection to Compensation Assessment Roll prepared u/s 14. Section 16 provides for the preparation of the Compensation Assessment Roll and u/s 17 the assessment of compensation is fixed. Section 19 makes a provision for contents of the order of the compensation officer u/s 15 or 15A. Section 20 provides for an appeal against the order passed by the compensation officer u/s 15 or 15A or under proviso (b) of subs. (2) of Section 25 to a Special Judge appointed for the purpose of this section. Section 21 is a provision for final publication of the Compensation Assessment Roll. u/s 22 the compensation officer has a power to carrel, any bona fide mistake in the Compensation Assessment Roll and Sections 23, 24''and 25 make a provision for payment of compensation. Section 39 of chap. V. of the West Bengal Estates Acquisition Act provides for the preparation of record-of-rights. Sections 40 to 43 provide for fixation of rent of" vested land to the State Government. Section 44 provides, inter alia, that, when a record-or''-rights has been prepared or revised, the Revenue Officer shall publish a draft of the record so prepared or revised in the prescribed manner and for the prescribed period, and shall receive and consider any objections which may be made to any entry therein or to any omission there from during the period'' of such publication. When all such objections have been considered and disposed of according to such rules as the State Government may make in this behalf, the Revenue Officer shall finally frame the record and cause such record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation. An officer specially empowered by the State Government may, on application within 9 months or within 18 years from the date of final publication of the record-of-rights u/s 44(2)(a) of the. Act, reopen the record-of-rights and revise an entry in the record finally published after giving the persons interested an opportunity of being heard and after recording reasons therefore. u/s 44(3) any person aggrieved by an order passed in revision under Sub-section (2a) may appeal in the prescribed manner to a Tribunal within such time as has been prescribed. u/s 44(2a) the certificate of final publication referred to in Sub-section (2) stating that ,a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the $ate thereof. The State Government may by notification declare, with regard to any specified area, that a record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication, and furthermore u/s 44(4) every entry in the record-of-rights finally published under Sub-section (2) including an entry revised under subs. (2a), made u/s 42A, or corrected u/s 45 or Section 45A, shall, subject to any modification by an order on appeal under subs. (3), be presumed to be correct until it is proved by evidence to be incorrect.

Now, Section 44(4) has been amended by the West Bengal Estates Acquisition (Second Amendment) Act, 1973, by which the words ''until it is proved by evidence to be incorrect'' has been omitted. Therefore, at the present moment, after an entry ''(finally published u/s 44(2) to be presumed to be correct u/s 57B which has been inserted by the present amendment Act, 1973. Be fore the amendment of this Act it was open to any person to file a suit for correction of the record-of-rights if he was aggrieved by the record-of-rights finally published. The record of rights could have been sued as evidence and presumed to be correct unless it is proved by the contrary evidence to be incorrect. Section 57B takes away the said rights and, therefore, the section is ultra vires.

Section 44(4) of the Act after the amendment provides that the entry in the record-of-rights ''shall be presumed to be correct''. Section 4 of the Evidence Act defines the meaning of the words ''shall presume'' as follows: "Whenever it. is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved." It will be clear, therefore, that in matter where it was stated, the Court shall presume, a fact, it shall regard such fact as proved, unless it is disproved. Left at that, I would have no hesitation to hold that the contrary evidence could be'' given to disprove the fact and, in fact, Mr. Das Gupta contended that the presumption is no proof and that it is an interference only and presumption is a different concept from proof.

The omission of the words ''until it is proved by evidence to be incorrect'' does not change the basic conception of the words ''shall presume''. These words are only presumption and not proof. The Legislature did not use the words ''conclusive proof. The words ''shall presume'' and ''may presume'' mean that in respect of the former ''legal presumption'' and in the latter ''factual presumption''. In The State of Madras Vs. A. Vaidyanatha Iyer, the Supreme Court inter pretend these words as follows.

It may here be mentioned that the Legislature has chosen to use the words ''shall presume'' and not ''may presume'', the former a presumption of law and the latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, e.g. presumptions, and therefore should have the same meaning. ''Shall presume'' has been defined in the Evidence Act as follows:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

It is a presumption of law and, therefore, it is obligatory on the Court to raise this presumption in every case brought , u/s 4 of the "Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence.

In the present case the same principle applies in all force. Here also the presumption deals with the branch of evidence and the evidentiary value of the documentary evidence, that is, of the record-of-rights, and the Court must make a legal presumption as the entry of the record-of-rights and nothing more and like all legal presumptions, as is evident from the basic concept, it is rebuttable in a proper forum.

Mr. Sen contended that even if there is entry in the record of-rights, it is not necessary to set aside the entry in a suit. In Ram-gulam Singh v. Bishnu Pargash Narain Singh 11 C.W.N. 50 it has been held that even if the record-of-rights is erroneous, it is not necessary to challenge the same in order to get relief in a suit. I must respectfully agree with that view.

Mr. Dutta, Mr. Matilal, Mr. Panda and Mr. Bhunia contended that the present Act is not a law for acquisition of any estate or of any rights therein or the extinguishment or modification of any such rights: It is a law for correction of record-of-rights. The vesting has already been completed and this is only regarding the correction of the record-of-rights and has nothing to do with the vesting or acquisition of the estate.

The expression ''acquisition'' and the expression ''right'', 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. In my opinion,'' the whole Act and the provisions of the Act are inter-connected to the main purposes, that is, for acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in land comprised in estates by the State, and is an integral part of the scheme for an agrarian reform.

Mr. Matilal, however, argued that the amendment did not come firstly under Article 31A as the present amendment does not speak of the acquisition but is a provision in respect of the recording on the possession on the land and referred to Ramanlal Gulabchand Shah Vs. The State of Gujarat and Others, in support of his content ion. In my opinion, however, the said case has no application in the facts and circumstances of the present case. In the said case the Supreme Court was considering, Sections 61 and 82 of the Bombay Tenancy and Agricultural Lands Act, XIII of 1956. u/s 65(l) of. the Act it has been provided as follows:

Assumption of management of lands which remained uncultivated.

(1) If it appears to the State Govt, that for any two consecutive years, any land has remained uncultivated (or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control) the State Govt. may, after making such inquiry, as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive.

The Supreme Court held that the said Section 65 cannot come under Article 31A but comes under Article 31A(l)(b). It is further held that the protection of Article 31A(l)(b) can only be invoked if the law can show a real limit for the period of management. If the management is likely to continue for an indefinite period, it is not in any sense limited and, therefore,, the amended part cannot claim protection, Section 61 notwithstanding. Once the matter can be gone into the provision of the additional part will have to be examined for reasonableness. It is held that the provision is unreasonable and is not protected under Article 31A(l)(b). Article 31B and sch. IX also do not give any protection on the same ground as the same do not come under Article 31A(l)(b) of the Constitution of India. It has been held by the Supreme Court that the first part of Section 65 before amendment gives the power to the State Government to take action in respect of any land which are kept uncultivated for two years and it cannot be challenged because of the protection of Article 31A read with the IX Schedule. Action was not taken under the first part of Section 65 before the amendment, but insofar as the second part is concerned the question arose whether taking over of the -management can be said to be (a) acquisition by the State, or (b) extinguishment of the rights of the holder, or (c) modification of any such rights. On these questions the Supreme Court held that it was impossible to say that this was an acquisition by the State. Such acquisition must transfer the ownership of the property to the State or to a corporation owned or controlled by the State. Since s.65 or the other provision of the Act does not spell out any such thing, there in no acquisition by the State. There is also no extinguishment of the rights of the holder. The rights are merely suspended and he continues to be the owner. There can of course be extinguishment of rights without acquisition by the State, but there must be extinguishment, that is, complete. termination pf the rights. The scheme of the Act in Section 61 contemplates return of the land unless sold to others and in those cases in which a sale is not affected, it cannot be said that there is an extinguishment of the rights. Therefore, the Supreme Court held that the provision is merely suspension of the right of management of one''s property without modification of the proprietary right is not held sufficient to give protection of Article 31A(l)(a). In my opinion, this case has no application. There is no doubt that the West Bengal Estates Acquisition Act provides for the .acquisition of the estate by the State and the right of intermediaries therein as also certain rights of raiyats and under-raiyals and of the rights of certain other persons in land comprised in the estates. The intermediaries have also been given some rights to get compensation under the Act -which is based on the record-of-rights prepared and finally published. The finally published record-of-rights is the very basis for fixing the compensation in respect of the vested land. The finally published record of right provides for the tenant in possession of the land as the direct tenant under the State. Finally published record-of-rights also records the assessment of rent and other-particulars in the record-of-rights. Before the amendment of this Act, alter foal publication-of the record-of-rights, any person aggrieved could have filed a suit in the civil Court. In the said suit they could have challenged the record-of-rights finally published. Article 31A, in my opinion, applies in full force in respect of the Amending Act also and inasmuch as this is a law for acquisition of the estate or of any rights therein. or the extinguishment or modification of any such rights of the persons, it will appear, therefore, that the amendment comes under the protection of Article 31A of the Constitution.

Mr. Matilal further contended that the present enactment is a colourable piece of legislation. Mr. Arun iKumar Dutta also argued that the Act was a fraud of the power of the legislative power. Mr. Matilal contended that by the enactment the Legislature sought to legislate on the law of evidence and the CPC Code. Mr. Matilal referred to P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, on the question of colourable exercise of power. On behalf of the Respondents it has been argued that what the Legislature was doing in the present case was not legislating on the CPC or on the Evidence Act but they were trying to refer the matters enumerated in Section 57B(2)(a), (b) & (c) of the West Bengal Estates Acquisition Act to a special Tribunal under the statute. It is further argued by Mr. Das Gupta that the presumption is nothing but a rebuttal presumption. The omission of the words ''until contrary is proved'' does not mean that the presumption is final. Mr. Sen Gupta as well as Mr. H. N. Sen on behalf of State Government in C.R. Nos. 2285-87(W) & 2273(W) of 1973 contended that the record of right was only in respect of possession and not title. The entry does not create title and it is not necessary to bring a suit to avoid a presumption in the entry or for declaration that the entry is wrong. Mr. Sen relied upon Ramgulam Singh v. Bishnu Pargash Narain Singh ( Supra ) and Keshab Chandra v. Madan Mohan 40 C.W.N. 22. They further argued that the Act is not colourable exercise of legislation.

Mr. Bhunia appearing for the Petitioners in C.R. No. 2912-(W) of 1973 argued that in the name of the amending of the West Bengal Estates Acquisition Act the basic, feature of the Constitution, namely, the rule of law is being affected.

Mr. Matilal relied- on P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition (Supra (1/325, para. 16) ) which speaks as follows:

When a Court says that a particular legislation is a colourable one, it means that the Legislature has transgressed its legislative power in a covert or indirect manner, it adopts a device to out step the limits of its power. Applying, the doctrine to the instant case, the Legislature cannot make a law in derogation of Article 31(2) of the Constitution. It can, therefore, only make a law of acquisition or requisition by providing for ''compensation'' in the manner prescribed in Article 31(2) of the Constitution. If the Legislature, though ex facie, purports to provide for compensation or indicates the principles for ascertaining the same, but in effect and substance takes away a property without paying compensation for it, it will be exercising power which it does not possess. If the Legislature makes a law for acquiring a property by providing for an illusory compensation or by indicating the principles for ascertaining the compensation which do not relate to the property acquired or to the value of such .property at or within a reasonable proximity of the date of acquisition or the principles are so designed and so arbitrary that they do not provide for compensation at all, one can easily hold that the Legislature made the law in fraud of its powers. Briefly stated, the legal position is as follows: If the question pertains to the adequacy of compensation, it is not justiciable ; if the compensation fixed or the principles evolved for fixing it disclose that the Legislature made the law in fraud of powers in the sense we have explained, the question is within the jurisdiction of the Court.

The Supreme Court was considering in that case, the Land Acquisition (Madras Amendment) Act (23 of 1961). The Supreme Court held that Article 31A(2) has no application as the Land Acquisition (Madras Amendment) Act (23 of 1961) is not confined in the agrarian reforms and/or further held that there is no reasonable classification and, therefore, the said Act is void. In the present case, in my opinion, no such thing has happened. In the present case the Legislature sought to amend the West Bengal Estates. Acquisition Act which enactment is protected under the provision of Article 31A of the Constitution. As I have held that the Act having come within the said provision of Article 31A stands in the way the Petitioners challenged the violation of provision under Article 14, 19 or 31 of the Constitution. In my opinion, further by exclusion of the jurisdiction of the civil Court in respect of the matter coming within the four corners of the statute, the Legislature has not legislated in excess powers of the Legislature to1 enact. That power is ancillary to the powers of enacting a law. for acquisition of the estate by the State and by that process they are not legislating either on CPC or on the Evidence Act. Therefore, in my opinion, there is ho substance in the submission made by the Petitioners regarding the colourable exercise of powers by the State Legislature. As the provision comes within the protection or Article 31A, the challenge under Article 14, 19 or 31 cannot be entertained.. Mr. Matilal contended that the provision violates the equal protection in respect of the procedural law and as such provision amounts .to unreasonable classification and violation of Article 14 of the Constitution. It is further argued by Mr. Matilal that no difference has been made or that Section 57B(2) is discriminated on the basis of the pending suit or suits not pending at the instance of the aggrieved party to raiyat or the intermediaries who were discriminated on the basis of the pending action. Mr. Matilal referred to the Supreme Court''s decision in the case of Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, . That case cannot help Mr. Matilal in view of the fact that the Supreme Court struck down the particular provisions of the Payment of Bonus Act on the ground of violation of Article 14 of the Constitution of India. As the present Act, in my opinion, comes under the cover of Article 31A of the Constitution, the challenge under Article 14 is ruled out.

Mr. Dutta further contended that the provision has been made by which the pending suit was abated, but no alternative forum has been created in which the Petitioner can agitate the question and, therefore, by abating a suit the Petitioners'' cause was said to be dismissed but not further provision ''has been made for creating a forum whether the suit or issues in the suit could have been tried. Mr. Matilal also contended that the ouster of the jurisdiction of the civil Court without providing for an alternative forum amounts to exercise of judicial power by the Legislature, and argued that the State Legislature had abated all suits and had made the order, already passed, final. Mr. Bhunia and Mr. Ranjit Kumar Banerjee contended that the statutory forum cannot decide the question of title and record-of-rights and the provisions thereof are only related to possession and has nothing to do with the title. Therefore, it is argued that in cases where question of title is involved, the suit cannot abate. Mr. Das Gupta on the other hand contended that though the jurisdiction of the civil Court has been taken away, the statute provides for a forum in which the Petitioners may agitate their rights under the statute, but the Court will have to determine when there the issues come within the mischief of Section 57B(1), (2) & (3) of the Act. It is further contended that the absence of judicial review is not unreasonable as it is a legislative policy and the legislation comes within the competence of List 2, sch. VII of Items 35 and 45. It is argued by Mr. Das Gupta "that the provision has been made for disposal of the dispute arising out of Section 57B(2) of the Act. The Petitioners, however, argue that the proviso makes it clear that the Revenue Officer deciding the dispute u/s 57B cannot reopen any matter which has already been enquired into, investigated, determined or decided by the State Government or any authority under any of the provisions of the Act. Mr. Das Gupta, however, contended that the decision already made under the West Bengal Estates Acquisition Act cannot be reopened, but Section 57B(2) only relates to any dispute which is a future dispute and which has not been decided by any authority under the Act.

Mr. Das Gupta has not read the provision of Section 57B(2) & (3) correctly. On the other hand, the dispute which has already been decided cannot be reopened and future dispute can be decided under the provision of Section 57B(2) of the Act. The said section also has provided an appeal against any order passed u/s 57B(3) of the Act, but the fact remains whether the provision of Section 57B(2) by which the pending suits are abated can be said to be valid provision under the statute. The effect of Section 57B(2) is that any person having a cause and having filed a suit is non-suited when it has been provided that the suit will abate so far as it relates to Clause (a), (b) and (c). When the statute makes provision for taking away the right of a party to go to a civil Court for redressing his grievance it will have to provide for alternative remedy for disposal of the dispute pending in the civil Court. In such provision by which the civil Court''s jurisdiction is barred, alternative forum is given to agitate the question. In the present case, this alternative forum has not been given in the matters already decided by the statutory Tribunal or authority and, on the other hand, the provision has been made by which no civil Court can entertain any suits or. applications concerning any matter coming within the mischief of Section 57B(2)(a), (b) & (c) and on which the order have already been passed under the provisions of the ,Act. It is competent for the Legislature to make such a provision and bar the jurisdiction'' of the civil Court so that the orders passed by the statutory Tribunal"" competent to decide the matters within the four corners of the statute cannot be reopened. The question regarding the exclusion of jurisdiction of a civil Court has been considered by the Supreme Court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . The Supreme Court laid down the views expressed by the Supreme Court in different cases as follows:

(1) Where the statute gives a finality to the orders of the Special Tribunals, the civil Court''s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of. the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decision to sustain the jurisdiction of the civil Court.

Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the necessity may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the suit right and liability shall be determined by the Tribunal so constituted, and whether remedies normally associated with action in civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunal^ constituted under the Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunal.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a" suit is open.. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act, but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies, (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there js an express prohibition in the particular Act. Iri either case the scheme of the particular Act must be examined "because it is a relevant enquiry. .

(7) An exclusion of the jurisdiction of the civil Court is not ready to be inferred unless the conditions above set down apply.

In my opinion, the first principle laid down by. the Supreme Court will apply in the facts of the present case. There is no doubt, as has been argued by both the parties, that the State sought to bar reopening of the decision in respect of the matter relating to Clause. (a), (b) and (c),of Section 57(B)(2), the suits which were pending were sought to be abated. Here in this case, it appears to me that the statute initially did not give finality to such decision but the suit was open for the parties for seeking the remedy. When the suit was pending, the present Act came into force. It has been specifically provided that all the pending suits will abate, but no provision has been made for hearing of the cause or issues involved in the suits in any other forum. The effect of such decision will be, Mr. Matilal contended, that the Legislature is interfering with the judicial process and making some judicial order which is incompetent for the Legislature to do or, in other words, the Legislature is interfering with the. judicial process without making any provision for the cause to be heard. Mr. Matilal relied on a case., Basanta Chandra v. Emperor (1944) F.C. 86. The Federal Court was considering the provisions of Sections 6 and 10(2) of the Restriction and Detention Ordinance (III of 1944) which run as follows:

6(1) No order made before the commencement of this Ordinance under Defence of India Rules, shall after such commencement be, deemed to be invalid or be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said-order was made be legally conferred by a rule made u/s 2, Defence of India Ordinance, 1939 (5 of 1939) or u/s 2, . Defence of India Act, 1939 (35 of 1939).

(2) Every such order shall on the commencement of this Ordinance be deemed to have been, and shall have effect as if it had been, made under this Ordinance, and as if this Ordinance had been in force at the time the order was made.

Provided that Section 7 and Section 9 of this Ordinance shall apply in relation to any order made under Clause (b) of Sub-rule (1) or Rule 26, Defence of India Rules, as if that order had been made on the date of the commencement of this Ordinance, and Section 8 of this Ordinance shall not apply to any such order.

10(1) No order made under this Ordinance, and no order having effect by virtue of Section 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order u/s 491, Criminal P.C. (5 of 1898), in respect of any order made under or having effect under the Ordinance or in respect of any person the subject of such an order.

(2) If at the commencement of this Ordinance there is pending in any Court any proceeding by which the validity of an order having effect by virtue of Section 6, as if it had been made under this Ordinance, is called in question, that proceeding is hereby discharged.

(3) Where an order purposed to have been made by any authority in exercise of any power conferred by or under this Ordinance, the Court shall, within the meaning of the Indian Evidence Act, 1872 (I of 1872), presume that such order was so made by that authority.

In the decision (Supra (90) ) the Federal Court was considering the defect of Section 10(2) as follows:

It was next contended that Sections 6 and 10 of Ordinance 3 were retrospective in the operation arid that it was beyond the competence of the Governor-General to enact a retrospective Ordinance. This question is concluded by the decision of this Court in (1944) F.C.R. 1. Whatever may be said as to the provision in Clause (1) of Section 6 about the ''validity'' of the order of detention, so much of that section and of d. (1) of Section 10 as enacts that the order of detention shall not be called in question is invalid according to that decision.

Clause (2) of Section 10 of the Ordinance was objected to on a different ground. It was said that this was an arrogation of judicial power by a legislating authority. It was argued that a legislating authority might be competent to enact a law even in such manner as to prejudice the rights of parties to a pending litigation, and a Court might'' be obliged to7 dismiss a proceeding as a result of the application of the law as changed. But, goes the argument, all that the legislating authority does in such a case is only to pass a law; and the disposal of the particular case still remains the function of the Court. In the present case, however, Clause (2) of Section 10 does not enact a rule of law and leave it to the. Court to apply it to the decision of cases pending before it; the section straightway discharges all pending proceedings. This objection was sought to be met on behalf of the Crown in two ways. The Advocate-General of India argued that--whatever might be said of the language employed Clause (2) did not go and was not intended to go further than what Clause (1) provided. If that were so, the'' scope and effect of Clause (2) must depend upon the construction that we place on Clause (1). The Advocate-General of Bihar maintained that Clause (2) was valid and within the competence of the Ordinance making authority to the full extent which its language signified, even if it went further than Clause (1) of that section. With this argument we are unable to agree.

The distinction between a legislative'' act and a ''judicial'' act is well-known, though in particular1 instances it might not be easy to say whether an act should be held to fall in one category or in the other. The Legislature is only authorised to enact laws. Some of the pending proceedings hit at by Clause (2) of Section 10 may raise questions of fact and their determination may wholly depend upon questions of fact and not upon any rule of law, as for instance, when it is alleged that an order of detention was not really the act of the authority by whom it purports to have been made or that it was a mala fide order or one made by a person who had not been authorised to make it. A direction that such a proceeding is discharged is clearly a judicial act and not the enactment of a law.. This question was discussed at some length in the judgment of this Court in (1944) F.C.R. 61. The nature of the provisory then considered was essentially different from Clause (2) of s. ] 0 of the present Ordinance. As explained in that judgment, the position there was that certain cases had in fact been tried by Tribunals constituted under an earlier Ordinance and decisions had been pronounced by those Tribunals, but the jurisdiction of those Tribunals was negatived by a decision of this Court. The later Ordinance provided that those decisions should be treated as decisions of duly constituted Tribunals. Applying the test laid down in (1926) 38 Bom.L.R. 153 this Court held that did not constitute an exercise of judicial power by the Ordinance making authority. But here there has been no investigation or decision by any Tribunal which the legislating authority can be deemed to have given effect to. It is a direct disposal of cases by the Legislature itself.

In my opinion, the principle laid down docs not apply in the facts of the present case. It has been stated that all pending suits shall abate without making any provisions for a statutory Tribunal or any other forum on which this cause pending in the suit to be tried. One such case has been decided by the Supreme Court in Gorakh Nath Dube v. Hari Narain Singh and Ors. (1973) II S.C.C. 535. In the said case the Supreme Court was considering the effect of the provision relating to the abatement of the suit u/s 5(2) of U.P. "Consolation of Holdings Act, 1954. The Supreme Court upheld the provision relating to abatement. At para. 4 of the judgment the Supreme Court held as follows:

Ram Adhar Singh v. Ramroop Singh and Ors. was relied upon by the Respondents before us. But, this was a case in which the question considered and decided by this Court was whether a suit for possession of agricultural land, u/s 209 of U.P. Zamindari and Land Reforms Act, would abate when Section 5 of the Act does not mention suits for possession. It was held there that the language of Section 5 of the Act, after its amendment, was wide enough to cover suits for possession involving declaration of rights and interests in land which can be the subject-matter of decisions in consolidation proceedings. The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue Courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation proceedings before special Courts governed by special procedure. Such adjudications by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable, consolidation operations to be finalised within a reasonable time.

Similar provisions were made in the present Act and alternative remedies were provided in the Act itself and as such the suits were sought to be abated or, in other words, the suits of the Plaintiffs must! be abated. This provision, therefore, appears to me, is not a judicial Act by the Legislature.

The learned Advocates for the Petitioners contended that the provision bars the suits relating to title also. Mr. Das Gupta, however, disputes the contentions and argues that the suits raising the question of title has not been barred. In my opinion, suits in which the questions of title are raised or the proceedings have been initiated without jurisdiction or rules of natural justice have been violated in the proceeding, the aggrieved party may still agitate the matter in a civil Court. The Supreme Court has held in the case reported in Bhulabhai v. Slate of M.P. (Supra (87) ) that in spite of the bar of the jurisdiction of the civil Court the challenge to the provision of the particular Act as ultra vires cannot be brought before the Tribunal. The Supreme Court held that the jurisdiction of the civil Court would not be- taken at least where the action of the authority is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if Section 18A was implicit in it. and that Section 18A was added to make explicit what was already implied. We cannot agree-The finality that the statute conferred upon orders of assessment subject, however, to appeal and revision, was a finality for the purpose of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was matters wholly outside the jurisdiction of the taxing authorities/ and in respect of such illegal action, the jurisdiction of the civil Court continued to subsist. In our judgment the suits were competent.

If in the present case, the alteration in the record-of-rights is made without jurisdiction or in exercise of power or without giving an opportunity of being heard the civil Court''s jurisdiction cannot be ousted, the civil Court can still entertain the suit. If, for instance, the dispute involved is determination of the question about the right of retention, this has been disposed of and in found that the determination is not a real determination but a sell styled one, the suit will certainly lie. This view is supported in the case of House of Lords in Anisminic Lid. v. The Foreign Compensation Commission and Anr. (1969) 1 AH E.R. 208 (212) held as follows:

The next argument was that, by reason of the provisions of Section 4(4) of the Act of 1950, the Courts are precluded from considering whether the Commission''s determination was nullity, and, therefore, it must be treated as valid whether-or not enquiry would disclose that it was a nullity.. Section 4(4) is in these terms:

The determination by the Commission of any application made to them under this Act shall not be called in question in any Court of law.

The Commission maintain that these are plain words only capable of having one meaning. Here is a determination which is apparently valid, there-is nothing on the face of- the document to cast any doubt on its validity. If it is a nullity, that .could only be established by raising some kind of proceedings in Court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The Appellants maintain that it is not the meaning of the words of this provision. They say that ''determination'' means a real determination and does not include an apparent or purported determination which in the eyes of law has no existence because it is a nullity. Or, putting it in another way, if one seeks to show that a* determination is a nullity, one is not questioning the purported determination--one is maintaining that it does not exist as a determination. It is one thing to question a determination which does ebcist; it is quite another thing to say that there is nothing to be questioned.

Let me illustrate the matter by supposing a simple case. A statute provides that a certain order may be made by a person who holds a specified qualification or, appointment, and it contains a provision, similar to Section 4(4), that such an order made by such a person shall not be called in question in any Court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the Court to treat that order as a valid order ? It is a well established principle that a provision ousting the ordinary jurisdiction of the Court must be construed strictly meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court.

Again the House of Lords held as follows (Supra, (237)):

The above principles may, however, be affected by the existence (as here) of an ouster or on certiorari clause. The words of Section 4(4) of the Foreign Compensation Act, 1950, are:

The determination by the Commission of any application made to them under this Act shall not be called in question in any Court of law.

It has been argued that your Lordships should construe ''determination'' as meaning anything which is on its face a determination of the Commission including even a purported determination which Jias no jurisdiction. It would seem that, on such an argument, the Court must accept and could not even enquire whether a purported determination was a forged or inaccurate order which did not represent that which the Commission had really decided. Moreover, it would mean that, however far the Commission ranged outside their jurisdiction or that which they were required to do or however far they departed from natural justice, their determination could not be questioned. A more reasonable and logical construction is that by ''determination'' Parliament meant a real determination, not a purported determination. On the assumption, however, that either meaning is a possible construction and that, therefore, the word ''determination'' is ambiguous, the latter meaning would accord with a long established line of cases which adopted that construction. One must assume that Parliament in 1950 had cognisance of these in adopting the words used in Section 4(4).

Again it was held as follows (Supra, (247) ):

This shows very clearly that, as and when machinery should be set up enabling the Commission to deal with compensation under future agreements, this should be within fixed and determined limits which the Legislature itself would lay down; this

Parliament might [under Section 2(2)(a)] define qualified persons and impose conditions, and [under Section 2(2)(b)] prescribe matter to be established to the Commission''s satisfaction. There could be no doubt that insofar as such power was exercised, and such '' definitions, conditions binding the Commission, so that if they departed from them, they would be acting beyond their powers. Moreover, when one compares the terminology of Section 4(4)--"The determination by the Commission of any application made to them under this Act....." with that of Section 5(b)--"the determination of....claims...." and appreciates that the power to determine claims is to be subject to such limits (as to definitions, conditions or prescribed matters) as might be approved by Parliament, the conclusion must follow that the preclusive clause can have no application except to a determination made within the limits, whatever they turn out to be, fixed - by Parliament. The Respondents'' argument that they have only to make a self-styled ''determination'' in order to enjoy automatic protection is thus at -once seen to be unsustainable.

If, therefore, the determination in question coming within Section 57B(1)(2) is not the real determination but a self-styled one, then of course the suit will not bar. The determination must be a real determination and not a self-styled determination by the authorities under the Act. If it is found that the determination is not a real determination under the statute, then the civil Courts have jurisdiction to entertain the suits.

Mr. Das Gupta contended with reference to the statement _of the Minister of Land and Land Revenue Department,, Government of West Bengal, before the Assembly, that a person has a right under the statute to raise this question regarding to R.O.R. u/s 44(2)(a) of the Act by making representation to the Revenue Officer concerned; and if he is satisfied, he can suo motu revise the finally published record-of-rights. In my opinion, that right has not been given to the person aggrieved by a certain entry in the record-of-rights, and any person aggrieved has no remedy against the certain entry but only has a right to apply to the Revenue Officer concerned who may or may not proceed suo motu u/s 44(2a) of the Act. This is a discretion on the part of the Revenue Officer and not a right of the persons aggrieved. Moreover it is most important question whether a person, aggrieved by a certain entry, who has only 9 months'' limitation to raise. the dispute u/s 44(2a) of the Act, tan go on in the indirect way to take the advantage of 18 years'' limitation in a matter in. which the Revenue Officer concerned can proceed suo motu. In that view of the matter, in my opinion, the Revenue Minister''s address to the Assembly, wherein it has been stated that any aggrieved person has a right to agitate the question in R.O.R., cannot be said to be founded on the law as we found it to be.

It is further argued by Mr. Das Gupta that this Act as referred to in West Bengal Estates Acquisition Act (Second Amendment), means Act XXXIII of 1973 and not 1953 Act. Therefore, Section 57B(2)(a), (b) & (c) and proviso to Section 57B(3) will apply in respect of the proceeding initiated under 1973 Act and not in respect of the-parent Act. Mr. Sen on behalf of the Government again did not adopt the argument of Mr. Das Gupta. So also Mr. Sen Gupta on behalf of the Government did hot subscribe to that view. In my opinion, this Act in this, case cannot be made to relate to the Act XIII of 1973. On the other hand, by the West Bengal Estates Acquisition (Second Amendment) Act, 1973, Section 57B was inserted in the parent Act. As soon as it was inserted in the parent Act and for the interpretation of the parent Act this Act means 1953 Act and not otherwise. If this Act means 1973 Act, then Section 57B(2)(a), (b) & (c) or Section 57B(3) or proviso for abatement, of suits could not have enacted at all because nothing could be pending by which a determination has been made on the date of coming into force of this Act being determination of dispute u/s 57B(2)(a), (b) & Section 57(3) could have/ been pending and, furthermore, proviso also would have been made nugatory, but nothing have been determined before the_ enforcement under the'' 1973 Act by any authority.

The reasons given in the West Bengal Estates Acquisition (Second Amendment) Act, 1973, are that the suits are pending for a number of years in a civil Court and as such it was necessary, therefore, that the jurisdiction of the civil Court should be effectively barred and the pending suits should abate so far as it relates to alteration of any entry in the record-of-rights, power to retain land and matters which are to be or have already been enquired into or determined under the provisions of the Act. In my opinion, it is a common experience of this Court that the cause of delay in disposal was lying in the hands of the State Government.

It is common, experience also in the Court that "years after the case has been filed and pending no affidavits are filed by the Respondent Government, even after 3 or 4 years. When the case was ready for hearing in this Court the State Government applies to time for filing affidavit. It is also common experience of the Court that the delay sometime of course is due to the State Government''s own difficulty regarding the filing of the affidavits and to other matters. It is, however, open to the Legislature to bar the jurisdiction of the civil Court in order to dispose of the case through the administrative Tribunal or statutory Tribunal for the quick disposal of the same if they have the opinion that it takes a long time to dispose of the civil cases in a civil Court. It has been argued" by Mr. Sen Gupta on behalf of the Respondents that if the provision comes within the mischief of Article 31A, as I held does, then the section cannot be ultra vires of the Constitution being violative of Article 14, 19 or 31. It is open to the Legislature to legislate on the subject to legislate retrospectively. The Legislature is competent to take away the jurisdiction of the civil Court and vest the jurisdiction in an alternative forum constituted under the statute for the purpose of deciding the matters which come within the lour corners of the statute creating the Tribunal. It will be seen that Section 44 provides the procedure for deciding the disputes relating to the preparation of record-of-rights. Section 57B(2) read with Section 44(4) as amended by the West Bengal Estates Acquisition (Second Amendment) Act, 1973, gives a finality to the decision already made under the statute. Thereafter, before the amendment it was open to the intermediary or any person being aggrieved of the record to file suits, but that remedy has been taken away by the amendment. Once determination has been made in accordance within the four corners of Section 44, the Legislature thought it fit to take away jurisdiction of the civil Court for reopening the determination in a suit. This, in my opinion, cannot be said to be ultra vires, more so, when the Act provides for an alternative remedy u/s 44(2)(a) and 44(3) of the West Bengal Estates Acquisition Act. Therefore, the said section must be said to be intra .vires. In the result, I hold that (a) the -Act impugned, in particular Section 57B(1), (2), (3) & (4) are not ultra vires. It is, however, open to any aggrieved party to file a suit if it is found (b) that the determination of rent or determination -of status or incidents of a tenancy relating to the record-of-rights was done in violation of the principle of natural justice or by the authority having no jurisdiction in the matter, (c) that the suits will not be barred if it is found that the matters coming u/s 57B(2)(a), (b) or (c) were made in violation of the principle of natural justice or (d) by an authority not empowered or the matters not coming within the mischief of Section 57B(2)(a), (b) & (c); (e) suit will not be barred and suit will not abate if the question of title is involved in any suit. ''Suit will not be barred and suit will not abate if for that matter partition between the co-sharers of intermediary or relating to such matters-which arc beyond the scope of s..57B(l) & (2)(a), (b) &-(c) etc.. Furthermore, the suit will not abate automatically and interim orders already passed will not vacate automatically unless the Court comes to a finding that a particular suit comes within the mischief of Section 57B(2) of the Act. The administrative order issued by the Respondents directing its officers to take possession of the land immediately as- the suit had abated is without jurisdiction and must be set aside (C.R. 2287(W)/1973). The Respondents must make application before the Court and on such application being made the Court will consider the scope of the relief claimed in the suit and, if it is found that it comes within the mischief of Section 57B(1) & (2)(a), (b) & (c), then and then only the suit may abate. If it is found by the Court, in which the suits are pending, that the matters do not come within the mischief of Section 57B or if it is found that the principle of natural justice has been violated or that the Respondents have acted without jurisdiction or that the determination in dispute was not a real determination but self-styled, then the suit will not be barred and the civil Court will still have jurisdiction to continue with the suit in spite of Section 57B(2) of the Act.

The Petitioners in C.R. No. 2287(W) of 1973, it is stated, are residents of village Kolkol, P.S. Galsi, district Burdwan, in the State, of West Bengal, and their principal source of livelihood is cultivation. It is stated that the Petitioners'' father, Amulya. Ratan Mullick, held agricultural, non-agricultural and homestead lands within the ceiling limits besides tank fisheries and orchards, and the Respondents on the assumption that he started a big raiyat case ?being No. 220-(V-V) of Galsi and in response to the notice he submitted returns in Form B showing retention of all the properties held by him. It is alleged that his agricultural lands are 23-96 acres. The Revenue Officer treated some of his non-agricultural lands as also tank fisheries as agricultural lands and passed orders directing vesting of most of the valuable properties. The Petitioners'' father died on Falgun 25, 1303 B.s., and he could not take, it is alleged, proper, steps against the order and after his demise the Petitioners, as his legal heirs and successors, brought T.S. No. 69 of 1961 in the First Court of Munsif, Burdwan, for declaration of tide to> the said lands and for injunction in respect of the lands mentioned in the schedule to the plaint.'' It is alleged that the learned Munsif was pleased to grant injunction as prayed for. The Petitioners, it is further stated, are possessing the said agricultural lands under their personal cultivation and this year also they have cultivated the same at an enormous cost. On January 24, 1969, the learned Munsif permitted the Petitioners to submit fresh B forms and directed the Revenue Officer to take necessary steps and, accordingly, the Petitioners submitted returns on February 26, 1972, and the Petitioners filed an application for reviewing the said B.R. case but to no effect. That as no notice u/s 80, CPC Code, was given, the Petitioners withdrew the said T.S. No. 89 of 1966 with liberty to file fresh suit and the Petitioners filed T.S. No. . 177 of 1970 in the Munsif''s Court at Burdwan and obtained an order of injunction on consent of the parties, viz. State of West Bengal, against the Respondents. The Petitioners while in enjoyment and possession of the said lands, the West Bengal Estates Acquisition (Second Amendment) Act, 1953 (W.B. Act XXXIII of 1973) came-into operation and the Junior Land Reform''s Officer, came and visited the Petitioners'' village on July 25, 1973, and gave out that under the provisions of subs. (2) of Section 57B, the civil Courts have lost their jurisdiction, and the suit brought by the Petitioners and the order of injunction obtained therein have abated and, as such, the authorities will settle the lands mentioned in the schedule to the plaint to other persons as per decision in the said B.R. case.

It will appear, therefore, that the said suit was pending at the time when the West Bengal Estates Acquisition (Second Amendment) Act, 1953, came into operation. But, as it is apprehension of the mind of the Petitioners that in view of Section 57B(2) the suit may abate and it is alleged that the Land Revenue Officer vested Petitioners'' land stated that the civil Court had lost jurisdiction and that the authority would settle the land mentioned in the schedule of the plaint to other persons. I must1 point out in all those matters that State Government did not file any affidavit whatsoever and therefore the statement made by the Petitioners in the affidavit must be stated to be correct. I have held that Section 57B(1) & (2) is not ultra vires, but still it is for the Court to come to a decision whether the suit comes within the mischief of provision of Section 57B(2) at all. If it is found that questions of jurisdiction are raised, or natural justice is violated or questions of title are raised, then the suit will certainly lie and the suit cannot abate. If, however, it is found that the suit comes within the four corners of the statute u/s 57B(2), then of course the suit will abate and consequently interim order can be vacated. But, I make it clear that the suit cannot automatically abate and interim order cannot automatically vacate unless such order is passed by the Court having jurisdiction in the matter.

In the result the Rules fail and are hereby discharged. There will be no order as to costs.