Judgment 1. AN interesting question on the extent of powers that has been conferred by Section 44 (2a) of the West Bengal estates Acquisitions Act, 1953 (hereinafter referred to as the said Act) on a specially empowered officer, falls for determination in the writ petition. 2. THE petitioner-company is disputing initiation of a suo moto proceeding under Section 44 (2a) of the said act and a notice thereof dated November 18, 1968. The petitioner claims that it carries on a business in fishery in several tank fisheries recorded as such in several cadastral survey plots in Khatian No. 1745, Mouzatardah kapasati, Police Stationbhangar, District 24-Parganas. There is no dispute that a large number of cadastral survey plots of the aforesaid Khatian No. 1745, mouzatardah Kapasati were recorded as tank fisheries in the name of the present petitioner in the finally published record of rights prepared under chapter 5 of the said Act. Such final publication was made in or about the year 1957. The respondents now have started a proceeding under Section 44 (2a) of the said Act being Case No. 208 of 1968 for revising the entries as made in the finally published record of rights in respect of the classification or character of land in respect of a number of cadastral survey plots which were recorded in favour of the petitioner as tank fisheries in the finally published record of Tights as referred to hereinbefore. The petitioner contends that such initiation of the proceedings is illegal and has been made in colourable exercise of powers by the Revenue officer and as such is liable to be quashed or set aside by an appropriate writ by the Court. It is also claimed by the petitioner that such proceeding was started mala-fide at the instance of certain persons with whom the petitioner is fighting a number of civil and criminal cases for their interfering with the petitioner's enjoyment of the fishery. The respondents are contesting the claim of the petitioner. In paragraphs 5 and 6 of the affidavit in opposition filed by the respondents they state that although the disputed plots were recorded as fishery, the petitioner company was using the same for the purpose of cultivat on of paddy and not for pisciculture. This they claim was found out by a local enquiry held some time in October-November 1967 by an Enquiring Officer. This they claim was found out by a local enquiry held some time in October-November 1967 by an Enquiring Officer. It is further stated that after such a local enquiry the Enquiring Officer submitted a report and it is on the basis of the said report that it was thought necessary to correct the record of rights and as such the proceedings under Section 44 (2a)of the said Act was started against the petitioner. The report is in the records of proceedings. It is however dated august 22, 1967 that is prior to October-November 1967. The report indicates that the Enquiring Officer in course of the enquiry found all the disputed plots barring C. S. plot No. 1313 and of that plot again the major part thereof under aman paddy cultivation. The Special Revenue Officer J. N. Ganguli in this report suggested that the proceedings under Section 44 (2a) should be initiated suo moto at once and the classification of the plots should at once be changed from bheri machh chus to aman (from fishery to paddy land)and the names of the Bargadars cultivating the plots should be recorded in column 23 of the Khatian. This report further bears an endorsement on behalf of the Settlement Officer, 24-Parganas dated September 2, 1967 whereby the said Settlement Officer requested charge Officer III to start a proceeding under Section 44 (2a) immediately as suggested by the Enquiring Officer. It is not disputed by the respondents that it is on the basis of this report that the present disputed proceeding under Section 44 (2a) of the said Act has been initiated. Mr. Chakraborty appearing in support of this Rule has taken three points. In the first place Mr. Chakraborty has contended that the proceeding was started malafide really not at the instance of the Revenue Officer but at the instance of persons like Narendranath Mandal referred to in paragraph 11 of the petition with whom the petitioner is fighting several litigations. The respondents have denied this suggestion. From the affidavit filed by the respondents and particularly in view of the records of the proceedings including the report of the Special Revenue Officer dated August 22, 1967 I am fully satisfied that there is no foundation for these allegations of malafides made by the petitioner. In this view I must overrule the first contention raised by Mr. Chakraborty. 3. In this view I must overrule the first contention raised by Mr. Chakraborty. 3. THE second point raised by Kir. Chakraborty is that the proceeding is not really suo moto at the instance of the Officer specially empowered by the State Government but is really on the basis of the report of the Special land Revenue Officer, J. N. Ganguli and the direction thereon by the Settlement Officer. According to Mr. Chakraborty, such report and the request of the Settlement Officer must be deemed to be an application on behalf of the State of West Bengal on which the proceeding is founded. But according to Mr. Chakraborty, time for initiating proceedings on such an application is clearly barred by the provision of Section 44 (2a) of the said Act and as such must be held to be without jurisdiction. Mr. P. K. Sengupta appearing on behalf of the respondents has contested this claim put forward on behalf of the petitioner. According to Mr. Sengupta, there may not be any dispute that there was an enquiry and a report recommending, proceedings under Section 44 (2a) of the said Act by the Special Revenue Officer and approved by the Settlement Officer, yet the Officer specially empowered has not initiated the proceedings treating the said report as an application. According to Mr. Sengupta, he might have considered the said report along with the other records, but he, satisfying himself that a revision in the entries of the Finally published record of rights is necessary, initiated the proceedings on the basis of his own satisfaction. As such Mr. Sengupta has strongly contended that it cannot be said that the proceeding was initiated on an application at the instance of the State government and as such barred by the limitation provided by the section. Giving anxious consideration to the respective arguments I have corne to the conclusion that I should accept the contention of Mr. Sengupta, in this respect. It is undoubtedly true that if the proceedings be held to be based on an application, it is clearly time barred by the statute. But the question is, is it really based on any application ? I agree with Mr. Chakraborty that I should look into the substance and not the form to find out how the proceeding was initiated. But I am unable to agree 'with Mr. But the question is, is it really based on any application ? I agree with Mr. Chakraborty that I should look into the substance and not the form to find out how the proceeding was initiated. But I am unable to agree 'with Mr. Chakraborty that looking at the substance I can hold that the officer specially empowered has really initiated the proceedings on the report on the other hand, I am of the opinion that the officer specially empowered undoubtedly took into consideration the facts found out by the enquiry report in arriving at his own decision that line finally published record needs a revision in the light of the said report. The two orders dated November 1, 1968 and November 1'8, 1968 clearly indicate that in proceeding to start the proceedings this officer specially empowered was conscious of his own obligations when he is to start a proceeding suo moto and he discharged the said obligation in arriving at his own satisfaction which alone can be the lawful foundation of a suo moto proceeding. In view of the complexities of the settlement proceedings it would not be reasonable to expect that the officer specially empowered must himself make all enquiries or investigations in order to arrive at the necessary decision to start a suo moto proceeding under Section 44 (Sa)of the said Act. Nor can it be expected that such an officer specially empowered should proceed under Section 44 (2a) of the said Act arbitrarily and without any enquiry or investigation as to necessity of any revision. If this, is the position in law, in my view, there is nothing wrong if the officer specially empowered proceeds to take into consideration facts and circumstances incorporated in any enquiry report made by any other officer in arriving at his own decision to initiate a proceeding under section 44 (2a) of the said Act so long as he does not abdicate himself in the discharge of this responsibility of his and does not act merely on the request or dictate of another. There is no statutory bar to such a procedure even in section 44 (2a) of the said Act. There is no statutory bar to such a procedure even in section 44 (2a) of the said Act. On the facts of the present case as I have already found that the Revenue Officer never abdicated his own obligation in this respect, it cannot be said that the proceedings had not been started as a suo moto proceeding only because the officer specially empowered had proceeded on the report of the Special Revenue Officer as aforesaid. In this view the second point raised by Mr. Chakraborty fails. 4. THE third point raised by Mr. Chakraborty is, in my view, of great substance. According to Mr. Chakraborty, on the case made out by the respondents in their affidavit-in-opposition it is amply clear that the officer specially empowered has initiated the disputed proceedings for revising the entry as to classification only because lie has found or he has satisfied himself that at the present moment the disputed plots are subjected to paddy cultivation and are not used for the purpose of piscculture. Although the petitioner in its pleading has strongly contested this fact, yet Mr. Chakraborty has contended that assuming all this to be correct it confers no jurisdiction on the officer specially empowered to start a proceeding under Section 44 (2a) of the said act or to revise the entries made in the finally published record of rights. It is in connection with this point that the important question as to the extent of powers conferred by this Section arises for consideration. Neither the respondents in their affidavit-in-opposition nor Mr. Sengupta appearing for such respondents has claimed that the disputed plots were not fisheries in the year 1957 when they were recorded as such in favour of the petitioner in the finally published record of rights. According to the respondents in the enquiry held in the year 1967 that is 10 years after the final publication it was found that the petitioner is cultivating paddy on these plots. . When it is not the case of the respondents that these plots were not fisheries at the date of final publication and at least when there is no such prima facie satisfaction as yet by the officer specially empowered based on any material whatsoever it must necessarily be held that there had been a change in the user of the land since after the publication. Now the question therefore is, is the officer specially empowered authorised by Section 44 (2a) of the said Act to revise an entry in the finally published record of rights on the basis of subsequent events ? While, according to Mr. Chakraborty, he is not so authorised, according to Mr. Sengupta he is so authorised. This rival contention has to be decided in this writ petition. In order to decide the point it would be necessary to look to the scheme for preparation of record of rights under chapter 5 of the said Act. Section 39 provides that for carrying out the purposes of the Act the State government may by an order direct either preparation of the record of rights or a general revision of the record of rights as prepared and finally published under the Penal Tenancy act, 1885. There is no dispute that there had been a valid order under Section 39 of the said Act by the State Government on the basis whereof the record of rights was prepared and or revised in accordance with the provisions of this Act and finally published in the year 1957. The purpose of the act is to be found in the preamble which reads as follows: "an Act to provide for the State acquisition of estates of all rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates." 5. IN short the purpose of the Act is to vest in the State all the intermediary interest and paying compensation to such intermediaries in accordance with the provisions of the Act. There can be no dispute that the vesting takes effect with reference to date of notification made under Section 4 and in some cases under Section 49 of the said Act. It should be noted that both these notifications were made long before the final publication in the year 1957. Section 39 further provides that the record of rights should be prepared or revised to incorporate such particulars as may be prescribed. Sections 40, 41 and 42 provide for assessment of rent and incorporation thereof in the record of rights. Section 44 (1) provides that when the draft record of rights has been prepared and or revised it shall be published and objections should be entertained. Sections 40, 41 and 42 provide for assessment of rent and incorporation thereof in the record of rights. Section 44 (1) provides that when the draft record of rights has been prepared and or revised it shall be published and objections should be entertained. Section 44 (2)provides that when such objections have (been considered and disposed of the Revenue Officer shall finally frame the record and publish it as such. In the original scheme there was no provision like 44 (2a) on the other hand 44 (3) in the Act as it originally stood there was a provision for an appeal against the decision on the objection under section 44 (2) and 44 (4) provided that the finally published record of rights was subject to modification by any order that may be passed on appeal under Section 44 (3). This scheme was materially altered in the year 1957 by an amendment. The right of appeal against the decision on objection was taken away and in lieu thereof 44 (2a)was incorporated authorising the officer specially empowered not only to entertain fresh objection by way of application for revising the entry but also authorising him to revise suo moto any entry in the finally published record of rights. Section 44 (3) was modified to confer a right of appeal only against the decision in the proceedings under section. 44 (2a), Section 44 (2a) was again amended from time to time for extending the period of limitation for exercising of powers suo moto. Section 44 (4) provides that subject to the modification empowered by the other provisions of the Act every entry in the record of rights finally published under sub-section (2) shall be presumed to be correct, Section 45 provides for correction of bona fide mistake. There are few other provisions in this chapter to which I shall have occasion to refer hereinafter. 6. NEXT reference should be made to the Rules which prescribe the manner in which the record is to be prepared and or revised and finally published Rules 25 and 26 respectively provide the procedure there for and the particulars to be recorded. The procedure prescribed is again set out in schedule B. It appears clear from a reading of this schedule that the record is to be prepared upon a thorough enquiry and investigation with reference to the existing facts as on the date of such preparation. The procedure prescribed is again set out in schedule B. It appears clear from a reading of this schedule that the record is to be prepared upon a thorough enquiry and investigation with reference to the existing facts as on the date of such preparation. These details have been referred to by me only because they. in my view, clearly indicate that the record of rights is to be prepared and finally published with reference to and on the basis of the facts and circumstances as they exist at the time of preparation. In my view, again if the record is to be finally prepared and published on the basis of the facts and circumstances existing at the time of preparation, the object of revision of the entries provided under Section 44 (2a) in such finally published record of rights would necessarily be with reference to such facts and circumstances and not on the basis of subsequent events. At least Section 44 (2a) nowhere indicates that the revision contemplated would be with reference to subsequent events. It is true that Mr. Sengupta has contended that this provision empowers the officer to revise an entry in the record finally published and puts no limitation, to the exercise of such power of revision. But in my view the limitation is in the scheme of the provision itself because under this provision what is to be revised and altered is the entry in the finally published record of rights so that the revision relates back to the date of the final publication. It would be unnatural to expect that the legislature ever intended that an entry which was correctly made on the date of final publication should be altered with retrospective effect from the date of such publication only in the light of events which might have occurred, as in the present case, 8 or 10 years after the publication. In my view, there are several reasons which support this conclusion of mine and which lead me to overrule the contention of Mr. Sengupta. In this chapter 5 of the Act there are few specific provisions which authorise modification or alteration of finally published record of rights on the basis of specific subsequent events. Reference may be made to 42a (1) and (2), 45a and 47. In my view, if Mr. Sengupta. In this chapter 5 of the Act there are few specific provisions which authorise modification or alteration of finally published record of rights on the basis of specific subsequent events. Reference may be made to 42a (1) and (2), 45a and 47. In my view, if Mr. Sengupta be correct in his contention that Section 44 (2a)by itself conferred authority for alteration of the record of rights on the basis, of subsequent events it would have been wholly unnecessary to make any specific provision like Section 42a, 45a and 47 as aforesaid. Still more important, in my view, is the limitation provided in Section 44 (2). It is clear that the legislature has put in a statutory limitation to modification or alteration of the finally published record of rights both under sections 44 (2a) and Section 45 of the said Act and a provision for limitation is wholly inconsistent with the idea that Section 44 (2a) envisages alteration of the records with reference to subsequent events. It would be unreasonable to think that the legislature should have specified a particular period of time and that again varying between a proceeding on an application and the other suo motafor altering or modifying the entry in the finally published record of rights if such revision was really intended to be made on the basis of the subsequent events. On the other hand the statute intended to attach finality to the proceedings, publication being made on the basis of facts and circumstances as they exist at the time of preparation and then to' put in a time limit for vindicating all objections or disputes either raised by the parties or suo moto by the settlement authorities such objections and disputes being based on facts and circumstances as they existed on the date of final publication, we may here refer to a pertinent observation of this Court in the case of Manmathanath Haldar v. Girish Chandra Roy, 38 C. W. N. 763 where it was held 'record of rights is a presumptive evidence of the state of things at the date the record of rights was prepared. I have also pointed out hereinbefore that when the entire object of the preparation of the record of rights under this chapter is to fulfill the purpose of this act the question of altering the finally published settlement records with reference to subsequent events is wholly irrelevant to the purpose of the Act itself inasmuch as the vesting takes place at or about the time and always prior to the final publication. Furthermore the legislature was conscious of the position that even after final publication such records may need modification or alteration and made the necessary provision there for in Section 50 of the Land Reforms Act (West Bengal Act 10 of 1955. In this view I must overrule the contention of Mr. Sengupta and accept that of Mr. Chakraborty and I must hold that Section 44 (2a)of the said Act has conferred no power on the officer specially empowered as contemplated by the said Section to revise or alter any entry as made in the finally published record of rights on the basis of subsequent events. On this finding I must also hold that in the present case respondent No. 1 wholly misguided himself in law in thinking that he had jurisdiction to alter the entries as to classification of the land as it appears from the finally published record of rights on the basis of subsequent events. Accordingly I must hold that the proceeding as initiated is beyond the jurisdiction of the respondent No. 1 and as such should be quashed and set aside. 7. AS Mr. Chakraborty succeeds in the third point raised, this application succeeds and the Rule is made absolute; the impugned proceedings under section 44 (2a) at the instance of respondent No. 1 in case No. 208 of 1968 as referred to in this application is hereby quashed and set aside. Let a writ of certiorari do issue accordingly. The petitioner will be entitled to costs of this proceeding from the respondents, hearing fee being assessed at five gold mohurs. On the prayer of the learned Advocate for the respondents, I direct that this order of mine shall remain stayed for a period of four weeks from date.