Judgment : In these writ applications which I have taken up for consideration together I am called upon to consider the propriety of the measures taken to record the names of Bargadars or alleged Bargadars or share-croppers. The said procedures which have been initiated and are causing certain amount of public attention and in some quarters criticism are sometimes loosely referred to as "Operation Barga". In these applications, therefore, I have to consider the relevant provisions of the different statutes under which the act of the recording of the Bargadars is done and the rules and regulations relevant in respect of these as well as the actual procedures followed. The plain grievance of the petitioners is that the procedure followed so far in most of the cases have been contrary to the provisions of the relevant statute, rules framed thereunder and the appropriate notifications or instructions applicable. It is, further, the grievance of many of the petitioners that the actions of the concerned authorities have been carried out in a most high-handed and arbitrary manner and allegations have been made that the actions taken were motivated by political purposes and have been used by the party which has majority in the Government, to oppress the people and to defeat the lawful rights of the citizens. As I have mentioned before, it is, therefore, necessary first to consider what are the relevant provisions applicable to such procedure of recording and whether such relevant provisions are invalid in any way and, then, to examine whether in implementing the act of recording of Bargadars there has been violation of the provisions of the procedure which the law enjoins and whether the concerned officers have acted arbitrarily. On behalf of the respondent government authorities it has been emphasised that "Operation Barga" is only a method of describing the speedy and effective system of recording the rights of share croppers or the Bargadars who are genuine bargadars but whose names have not been because of various social and economic factors recorded. The said action, according to the respondent government authorities, is meant to be strictly in accordance with the procedure, enjoined by law and not by executive fiat or action but by the relevant authorities contemplated under the relevant Acts and the rules and notifications framed thereunder. The said action, according to the respondent government authorities, is meant to be strictly in accordance with the procedure, enjoined by law and not by executive fiat or action but by the relevant authorities contemplated under the relevant Acts and the rules and notifications framed thereunder. The expression "Operation" it was submitted on behalf of the respondents has been used to emphasise the urgency of the matter which has troubled the rural life for a long time. If the expression "Operation Barga" is meant only for carrying out in a speedy manner the recording of the Bargadars in accordance with the relevant provisions of law by the competent authorities and not to carry out the said recording by any executive fiat or direction, then, in my opinion, such method described as operation cannot be objected to, Preservation of land for agricultural purposes being one or the most important sources of good for our people is a matter of grave social and economic concern for all. As was emphasised by Mr. Justice P.B. Mukharji, as the learned Chief Justice then was, in the Division Bench Judgment in the case of (1) Ramhari v. Nilmoni Das, AIR 1952 Cal. page 184 at page 186 of the report that the Barga system of cultivation has been an integral part of the agricultural economy and the land system of the State. That system is the work of many centuries and during the first stages of its evolution the sense of common interest and joint venture between the owners of land and the Bhagchasis was the cementing bond between them. But with the progress of time and the changing social and economic conditions that sense of common interest has been lost and there has been on the one hand the growing evils of what is called the absentee landlordism which became irresponsible and on the other by the growing delirium to use the poor rural masses on the plea of certain new ideology by the slogan commonly known as the land belongs to the tillers of the soil and the tension between the landowners and the Bhagchasis has developed and their relationship has been greatly strained for quite sometime creating agrarian disturbances, law and order problem and rural unrest affecting the production of food in our country. 2. 2. It would perhaps not be inappropriate in this connection to note the ancient notion in India, about the origin of property in land. "A field is his who clears it of jungle, game is his who has first pierced it" See Manu, Chapter IX Verse 44, quoted in the Tagore Law Lectures or the Land-law of Bengal by Justice Sarada Charan Mitra, 1898, page 2. The learned lecturer at page 4 of the said book noticed that the notion of our proprietory right could hardly find place amongst the people in the earlier stages of civilization. They are due to juridical refinement. The great Indian sages did not turn their attention to the theory, they took a practical view of proprietary right. Earth according to them was common property just as air or water, a right to portion of it accrued from occupancy. The right was not to the soil but to the usufruct. The Indian sages made no distinction in principle between res nullius and res communes. Jaimini's aphorism, which according to European authorities, was composed many centuries before Christ is "Earth cannot be given away as it is common to all." Similar view was expressed by Sayana in his commentary. According to the learned lecturer private property in land seems to have been recognised as a sacred right which even the hand of despotism would rarely violate. 'The right, according to Hindu law, of the first person who makes beneficial use of the soil was recognised by some of the Judges of the Calcutta High Court in the well known case of (2) Thakurani Dasi v. Bisweswar Mukherjee, BLR Sup. Vol. page 202 and in some cases by the Madras High Court. Sarada Charan Mitra has emphasised that Hindu Sages said and repeatedly said that the sovereign was not the proprietor of the soil. He was entitled to a share of the usufruct of the lands in the occupation of his subjects not because he was the owner but because a share was payable to him as the price for protection afforded to life, liberty and property. Aryans according to Sarada Charan Mitra, were essentially agriculturists and cultivators and they took pride in the art in which they excelled the aboriginal races around which was not then a disgrace, a cause of shame as unfortunately it became later to hold the plough and "break the stubborn glebe". Aryans according to Sarada Charan Mitra, were essentially agriculturists and cultivators and they took pride in the art in which they excelled the aboriginal races around which was not then a disgrace, a cause of shame as unfortunately it became later to hold the plough and "break the stubborn glebe". It was recognised, however, that the primitive stage of society which gave the first occupier a right to continue in occupation and no more could not possibly last long. Complications must necessarily have arisen and did as a matter of fact arise and Hindu sages had to grapple with the relations which the more developed state of things required them to deal with. Narada and Parasara had copiously to deal with questions on the relationship of landlords and tenants. Intermediate tenures were also apparently-unknown in the earlier days. Later on a family could sublet a land and get it cultivated by hired labourers. 3. Thereafter, historically speaking the advent of Muslim rule and introduction of some parts of the Muslim jurisprudence in the land system changed the system. The Mahomedan conquerors came about the beginning of the thirteenth century. They had their own system of jurisprudence which differed in many respects from what they found to be in existence in India. But the doctrine of fiscal system were of recent date. There was the introduction of what is known as Khiraj. The principle of Musalman society at that time was that if the Imam conquired a country by force or arms he was at liberty to divide it among the Musalmans or he might leave it in the hands of the original proprietors exacting from them a capitation tax called zeeyat and imposing a tribute upon their lands known as khiraj. According to this theory the conquerors were considered as the proprietor of the land, khiraj according to the Mahomedan doctrine varied with the nature of the land and detailed rules were laid down. In India, however, no land was distributed among the Musalmans. Small portions might have been given to soldiers as jaigirs and aymas but they were generally waste lands. They levied the Khiraj and applied the theory of proprietorship of the King in the soil and soon khiraj was commuted into money rent. Thereafter there was historically an assimilation of the Hindu & Mahomedan systems. Small portions might have been given to soldiers as jaigirs and aymas but they were generally waste lands. They levied the Khiraj and applied the theory of proprietorship of the King in the soil and soon khiraj was commuted into money rent. Thereafter there was historically an assimilation of the Hindu & Mahomedan systems. Sher Shah introduced during his short reign innovations and settlement of land revenue was one of them. Akbar's scheme was to carry out the previous system into effect with greater precision and correctness. Then there was certain innovation of Todar Mal. The rights under Mahomedan settlement of the class known as zamindars and the right of the cultivators are matters of great importance as the principles of the settlement of Land Revenue under the Anglo-Indian Government are to a great extent based on them. The distinct revival in the reign of Akbar of the old Hindu system under his Hindu minister would seem to imply a revival of the principle which distinctly-recognised the right of cultivators to hold on and enjoy the usufruct and even to alienate and sub-let. It was to all intents and purposes a proprietary right subject to payment of a definite share of produce which since Raja Todar Mal's settlement could be called customary rent. Ejectment was unknown except for non-cultivation or continuous non-payment of rent. Competition rent was never thought of. The victory of the English army at Palassey established in Bengal the nominal vice-royalty of Mir Jaffar and the actual sovereignty of a company of English merchants. But of course the management of the Board of Directors of the East India Company caused the terrible calamity of the famine of 1770. The English in India started with the assumption that all the soil belonged in absolute property to the sovereign and that all private property in land existed by his sufference. This was the doctrine of Abu Haneefa and accorded with the English theory that actual ownership of land resided in the sovereign. The existence of private property in land which was the fundamental doctrine of Hindu jurisprudence and which even the Mahomedan Government in India did not put out of sight was entirely ignored. This was the doctrine of Abu Haneefa and accorded with the English theory that actual ownership of land resided in the sovereign. The existence of private property in land which was the fundamental doctrine of Hindu jurisprudence and which even the Mahomedan Government in India did not put out of sight was entirely ignored. But with this back ground came the permanent Settlement of 1793 and transfer in perpetuity of a vast and then unmeasured quantity of land to a class of men who were known as Zemindars and property in the soil was declared vested in them. The remaining quantity of land cultivated or waste continued to be the property of the State, (See Tagore Law Lectures 1895 - The Land Law of Bengal- Sarada Charan Mitra). 4. I have set out hereinbefore the historical background of the problem as I have been able to gather from the Tagore Law Lecture on Land Laws of Bengal and Orissa by Sarada Charan Mitra. Shri Ajit Kumar Panja, learned advocate for some of the petitioners in some of these writ applications also urged before me to bear in mind the historical perspective of the present Act. He submitted that in 1766 there was the grant of firman of the dewani of Bengal, Bihar and Orissa from Shah Alam. The East India Company, according to the learned advocate, emerged from its veil of conspiracy because Firman meant orders. Thereafter, the right of collecting taxes and also conducting the civil administration were conferred on the company. But an era of famine induced the Board of Directors of the said company to constitute a "Supreme Council" and the word Zaminder meaning the land holder was commonly used and the Europeans were appointed as Supervisors. According to Shri Panja, European Supervisors started collusion and conspiracy with feudal landholders and treated the tillers of the soil with extreme tyranny. In 1769 Fixed Settlement of the Revenue came into being. But the peasantry of Bengal showed adverse reaction to the fixed settlement and in 1770 a fresh settlement of revenue for a year was made with the old Zamindars. In the year 1176 B.S. the great famine "Chiattarer Mannantar" happened and the Government of Bengal took over the charge of dewany of the three provinces on the 11th May, 1782. But the peasantry of Bengal showed adverse reaction to the fixed settlement and in 1770 a fresh settlement of revenue for a year was made with the old Zamindars. In the year 1176 B.S. the great famine "Chiattarer Mannantar" happened and the Government of Bengal took over the charge of dewany of the three provinces on the 11th May, 1782. In the same year Warren Hastings, the then Governor made the Zemindars liable to be dispossessed and the Zemindaries or portion of which to be sold to make up deficiency of revenue. In l783 in England Mr. C.J. Fox introduced "East India Bill" with the object of making the Zemindars hereditary proprietors of land and tax fixed and invariable. On 15th August, 1784 the Bill introduced by Mr. Pitt, the then-Prime Minister of England, was passed into an Act, Displaced Zemindars were restored and their possessions made permanent. In 1793 Permanent Settlement of Regulation which is known as the Permanent Settlement was introduced by Lord Cornwallis. Shri Panja states that during this period the French Revolution had wiped off the last vestige or feudalism, the same was clamped on India by the Britishers. According to Shri Panja, Permanent Settlement Regulation virtually declared the Zemindars full proprietors of the land. This new landed aristrocracy in Bengal was created by Murshid Quli Khan known as the Zemindars whose position was confirmed and made hereditary by Lord Cornwallis. The system introduced by Murshid Quli Khan was popularly known as Maljamani System. To-darmal's system of Zabiti, that is to say direct collection of rent from the cultivators was found to be not suitable to the condition then prevailing in Bengal. Under Todarmal's system Bengal was then divided into thirty four sarkars and each sarkar was divided into a number of parganas or mahals it being the lowest administrative unit. Murshid Quli Khan, Shri Panja goes on to say divided Bengal into thirteen Chaklas and thereby abolished the thirty four sarkars of Todarmal's system. According to Ascoli, however the Chakla was in existence in Akbar's time but its development as an administrative unit was to work of Murshid Quli Khan. Murshid Quli Khan, Shri Panja goes on to say divided Bengal into thirteen Chaklas and thereby abolished the thirty four sarkars of Todarmal's system. According to Ascoli, however the Chakla was in existence in Akbar's time but its development as an administrative unit was to work of Murshid Quli Khan. Shri panja asserted that since 1859 the peasantry of Bengal groaned under inhuman torture of the Zemindars and he referred to certain historians who are supposed to have said that the poor and industrious tenants were taxed by his Zemindar or Collector for every extravagance that avarice, ambition, pride, vanity or intemperance might lead him into over and above what was generally being the established rent of his land. If he was to be married, a child born, honours conferred, luxury indulged, all must be paid by the raiyats, and what heightened the disreputable scene, was that the more opulent who could better obtain redress for imposition, escaped while the weak were obliged to submit. In the circumstances, the Rent Act of 1859 was passed in an attempt to mitigate the pitiable conditions of the peasants. Under the said Act a tenant became an occupancy raiyat if the same land was cultivated by him for 12 years. Then in 1885 Bengal Tenancy Act was passed but the Zemindars according to Shri Panja took no time to frustrate the object of the enactment by not allowing the same tenant to cultivate the same land far twelve years at a stretch. Therefore, under the Bengal Tenancy Act, 1885 raiyat was entitled to occupancy right by cultivating some land not necessarily the same land in the same village continuously for 12 years. This gave the raiyats some status. In 1928 the Bengal Tenancy Act, went through major amendments. In 1938 the Government appointed Land Revenue Commission presided over by Sir Francis Floud to examine the then land tenure system and in 1940 the report of the Floud Commission was published which disclosed the necessity of abolition of Permanent Settlement Regulation and the introduction of a revolutionary 1and tenure system by which the tenants of the lowest degree could come directly under the Government. However, war broke out and no action was taken except the appointment of an expert committee for assessing the implications of the recommendations. However, war broke out and no action was taken except the appointment of an expert committee for assessing the implications of the recommendations. The Expert Committee called Bengal Administrative Enquiry Committee concurred with the views of the Floud Commission that the Permanent Settlement Regulation should be abolished and the feudal pattern of land tenure system must be given a go by. In 1947, came the National Independence and thereafter, The West Bengal Estates Acquisition Act, 1953 was passed. The said Act mainly brought about the acquisition of all estates and abolition of all rent receiving interests. After the amendment of Article 31A of the Constitution of India the acquisition of the rent receiving interests of raiyats and the excess lands of raiyats became feasible and accordingly section 52 of The West Bengal Estates Acquisition Act 1953, was brought into force. On April 10, 1956 notification was issued under the West Bengal Estates Acquisition Act, 1953 making the raiyats and under-raiyats included within the scope of the expression "intermediaries". In 1955 the West Bengal Land Reforms Act, 1955 came into force on March, 30, 1956 with the object to reform the law relating to land 1enures consequent on the vesting of all estates and of certain rights therein. In giving this historical background Shri Panja has relied on the following books : Talboys Wheeler, Early Records of British India, pages 364 to 367 and pages 373 J. Mill and Wilson, History of British India, Vol. IV, Dr. B.N. Dutta, Dialectics of Land Economics of India, p. 126, A.C. Roy. History of Bengal, Mughal Period, pages 423 to 429, Shree Bhunia has stressed and not without good deal of justification the very great good deeds of charity and pioneering efforts of some of the Zemindars of Bengal and he stressed that the middle land owning gentry had provided the source of our nationalist and intellectual life. 5. Before I deal with the actual contentions of the different learned advocates appearing for the several petitioners in these writ applications, I think for my present purpose if historical background has to be kept in view, then, I need only begin with the Bengal Tenancy Act, 1885. The Bengal Tenancy Act, 1885 originally did not deal with the rights and obligations of Bargadars or those who were the actual tillers of the soil. The Bengal Tenancy Act, 1885 originally did not deal with the rights and obligations of Bargadars or those who were the actual tillers of the soil. The expression 'Bargadar' was defined under section 2(17) of the Bengal Tenancy Act, 1885. The Amending Act of 1928 added a Pioviso to section 2(17) of the said Act and by this amendment it was provided that a Bargadar would not acquire the status of a tenant except when such a person had been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by the landlord or was held by a civil court to be a tenant. It was, then, held that if a question arose whether or not such a person was a tenant a Civil Court was competent to decide on evidence before it whether a Bargadar was a tenant or not. If, however, that question arose elsewhere that authority was debarred from deciding that question unless there was the prior admission or prior decision. As mentioned herein before the next Act which is of importance is, the West Bengal Bargadars Act, 1950 and the same was modified from time to time up to 1955. But prior thereto as indicated earlier in 1938 the land Revenue Commission which is popularly known as the Floud Commission was appointed and in 1940 the Floud Commission made its report. Learned Additional Advocate General relied heavily on Chapter IV, Vol. I of the Land Revenue Commission mainly on paragraphs 141, 142, 143, 145 and 146 of Chapter IV of the said report. It may not be inappropriate to set out the said paragraphs 141 to 146 of the said report. "141. Criticism of tenancy legislation. Unrestricted subletting invariably leads to rack-renting, to prevent which has always been one of the main objects of tenancy legislation. The chief criticism of tenancy legisiation in this province which has been made in the evidence before us is that the Act of 1885 did not protect, as such, the actual tillers of the soil. When Act X of 1859 was passed, the occupancy rights which it created were intended for the actual tillers of the soil. As time went on, subletting to under-raiyats became more common but the raiyats retained all their occupancy rights and the under tenants were to all intents and purposes tenants-at-will. When Act X of 1859 was passed, the occupancy rights which it created were intended for the actual tillers of the soil. As time went on, subletting to under-raiyats became more common but the raiyats retained all their occupancy rights and the under tenants were to all intents and purposes tenants-at-will. The vital blunder was to attach occupancy rights, not to the land, but to a particular class of tenants who might be non-agriculturists or might cease to cultivate. From this point of view the legislation of 1928 made the position worse. Though it strengthened the position of cash-paying under-raiyats by giving them occupancy rights it recognised produce-paying tenants only in so far as they are raiyats or under-raiyats paying a fixed quantity of produce. The bargadar or adhiar does not come within this category and although the majority of them finance agriculture themselves, providing the seed, plough and cattle, they have no status even as tenants-at-will. 142. Effect of 1928 Act on Bargadars. The provision in the Tenancy Act of 1928, which definitely declared the Bargadars with few exceptions to be labourers was, we hold, a retrograde measure. At present, probably one-fifth of the land in Bengal is cultivated for Zemindars, tenure-holders, raiyats, or under-raiyats by people most of whom themselves hold lands as raiyats or under-raiyats and to all of whom agriculture is the ancestral profession. Socially, they are regarded in their villages as having a better status than labourers. Many bargadar are the original tenants who have lost their lands in the Civil Courts for failure to pay their rent or other liabilities. Some belong to aboriginal tribes like the Santals who originally brought land into cultivation but were gradually brought up by their landlord or creditors, and were converted into serfs. Chapter VIIA was inserted into the Tenancy Act too late to save many of them from the consequences of their own improvidence. Some belong to aboriginal tribes like the Santals who originally brought land into cultivation but were gradually brought up by their landlord or creditors, and were converted into serfs. Chapter VIIA was inserted into the Tenancy Act too late to save many of them from the consequences of their own improvidence. These are the people tied to the land of whom Sri Henry Maine says "the status of the slave is always deplorable the status of the predial slave is often worse than that of the household slave, but the lowest depth of miserable subjection is reached when the person enthralled to the land is at the mercy of peasants, whether they exercise their powers singly or in communities." We are of opinion that this is one of the most difficult problems that we have to face. It is bound up with the commercialisation of land to which our attention is drawn in the first term of reference, i.e., the appropriation of the most valuable right in land the occupancy right by non agriculturists. 143. Advantages of barga system. We are all prepared to concede that the barga system has many advantages. When a shars of the crop is paid, fluctuations in the cash value of the produce have no application and whether there is a good or a bad crop the amount paid varies with the outturn. The system is of great assistance to widows minors and other people who are temporarily incapacitated from agriculture. Such people would be great loser if their only way of getting their land cultivated without losing for ever the right to return to it, was the employment of labour hired by the day or the month. 144. Disadvantages of the system-Nevertheless the barga system overrides the principle that the tiller of the soil should have security and protection fr0m rack-renting. No one denies that half the produce is an excessive rent. Further the balance of opinion in all countries is that this system of cultivation is not economic and therefore not in the interest of the community as a whole. The cultivator only gets the benefit of half the value of any increase in yield which is the reward of his own labour or enterprise. If the crop is even a partial failure, he does not earn the cost of cultivation. 145. The cultivator only gets the benefit of half the value of any increase in yield which is the reward of his own labour or enterprise. If the crop is even a partial failure, he does not earn the cost of cultivation. 145. Considerations in proposing rights for hargadars- We consider that the legislation of 1928 in regard to Bargadars has proved to be a mistake. Quite apart from any question of State acquisition or a radical change in the present land revenue system, Bargadars under tenure-holders should be raivats, and hargadars under-raiyats should be under-raiyats. They need not necessarily have all the rights of occupancy. Provision might be made by which they could be ejected at the end of a written lease, as in the case of non-occupancy raiyats. There might also be a new provision for ejecting them if they did not cultivate efficiently. We admit, however, that this might be difficult to prove in Court. In any case, the share of the crop they pay, which is now limited by section 178(e) of the Tenancy Act to half the produce is too high. The chief argument against any proposal to improve the status or the Bargadars, is that as soon as it has become publicly known, the great majority of the Bargadars will be turned out. But we do not think that the owners of those lands are in a position to cultivate the land themsehes, or can afford to leave them uncultivated for more than one or two years at most. They must either employ the previous bargadars as labourers on fixed wages, in which case the economic position of these people might improve, or sooner or later they must reinstate the Bargadars. 146. Recommendation- Our recommendation is that the provision of Sir John Kerr's Bill should be restored, by which it was proposed to treat as tenants Bargadars who supply the plough, cattle and agricultural implements. If it is thought too difficult to frame a workable definition, then all Bargadars should be declared to be tenants. We also recommend that the share of the crop legally recoverable from them should be one/third, instead of half, although we recognise that there may be practical difficulties in enforcing this limitation." 6. Thereafter, as I have mentioned before, the West Bengal Bargadars Act of 1950 was passed. But the same was unable to meet with the problem. We also recommend that the share of the crop legally recoverable from them should be one/third, instead of half, although we recognise that there may be practical difficulties in enforcing this limitation." 6. Thereafter, as I have mentioned before, the West Bengal Bargadars Act of 1950 was passed. But the same was unable to meet with the problem. Under section 2 sub-section (b) the meaning of a bargadar under the said Act, 1950 as amended upto 1955 was as follows : (b) "bargadar" means a person who under the system generally known as adhi, barga, or bhag, cultivates the land of another person on condition of delivering a share of the produce of such land to that other person but shall not include any such person- (i) if he has been expressly admitted to be a tenant by the owner in any document executed by him or executed in his favour and accepted by him, or (ii) if he has been held by a Civil Court to be a tenant; 7. Section 3 dealt with the division of the produce. Section 5 dealt with the termination of cultivation by Bargadars and section 6 dealt with the establishment of Bhag Chas Conciliation Board. It is no longer relevant to set out in any detail the said provisions. It may, however, be mentioned that West Bengal Bargadars Act 1956, amended certain provisions of the Act. But the West Bengal Eastates Acquisition Act 1953 as such did not deal with the rights of the share croppers or bargadars and thereafter the West Bengal Land Reforms Act, 1955 was passed with which I am really concerned in these applications. I will set out hereinafter the relevant provisions of the said Act and the rules framed thereunder and the amendments thereto and the relevant notifications. But before I do so I will set out in brief the rival contentions of the parties. Mr. Bhunia, learned advocate appearing for some of the petitioners contended that sub-section (2) of section 60 of the West Bengal Land Reforms Act, 1955 in so far as it permitted the executive to make rules which were to become part of the Act. was violative, according to him, of the basic features of the Constitution, namely, democracy and separation of power and federation and could be challenged on that ground even though the Act had been placed in the 9th Schedule. was violative, according to him, of the basic features of the Constitution, namely, democracy and separation of power and federation and could be challenged on that ground even though the Act had been placed in the 9th Schedule. In support of this contention he relied on the decision in the case of (3) Kesavananda v. State of Kerala, AIR 1973 SC page 1461 and the decision in the case (4) Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 . It was secondly, submitted that sub-section (2) of section 60 of the West Bengal Land Reforms Act, 1955 also suffers from the vice of excessive delegation and there bas been complete self-effacement of the legislative will to the executive. In support of this contention he relied on the decision of the special bench in the case of (5) S. Properties v. T.R. Bhavani, 64 CWN page 899 and the decision of the Supreme Court in the case of (6) Ramanlal v. State of Gujarat, AIR 1969 SC page 169 and (7) Avinder Singh v. State of Punjah, AIR 1979 SC page 321. He, further, submitted, that even assuming that section 60(2) was valid piece of legislation, he urged the West Bengal Land Reforms Rules, 1965 could not over-ride the statute as have been done by sub-rule (2) of Rule 21 in respect of the forum and procedure laid down in the unamended Rule 21 of the said rules. For this he drew my attention to the decision in the case of (8) In re : Fire & General Insurance Co. reported in 66 CWN page 566 (9) Sant Saranlal v. Parsuram, AIR 1966 SC page 1852, (10) Madhusudano v. Kontaru Noiko, AIR 1966 SC page 1857 and also the decision in the case of (11) Ceniral Bank of India v. Their Workmen, AIR 1960 SC page 112. It was urged that sub-rules (1) and (2) of Rule 21 were both parts of the Act and these were discriminatory and could be challenged as these were added to the statute subsequent to 20th of June, 1964 when the Act itself namely, the West Bengal Land Reforms Act 1955 was placed in the 9th Schedule. For this he relied on the decisions in the cases of (12) State of Maharastra v. Malharan, AIR 1968 SC page 1395 at 1400, (13) Orissa State v. Chandrasekhar, AIR 1970 SC 398 . For this he relied on the decisions in the cases of (12) State of Maharastra v. Malharan, AIR 1968 SC page 1395 at 1400, (13) Orissa State v. Chandrasekhar, AIR 1970 SC 398 . (14) Godavari Sugar Mills v. S. B. Kambla, AIR 1975 SC page 1193. He, further urged that in view of the fact that Chapter VII of the West Bengal Land Reforms Act 1955 was brought into force on 1st of November 1965, the same was not entitled to protection under the 9th schedule of the Constitution and for this he relied on the decisions in the cases of (15) Dayamaya Debi v. State of West Bengal, 78 CWN page 639 (13) Orissa State v. Chandrasekhar, AIR 1970 SC 398 and (16) Batoo Mal v. Rameshwar Nath, AIR 1971 Kerala page 98. The learned advocate submitted that recording of Bargadars under section 50 of the West Bengal Land Reforms Act, 1955 or Rule 21 (1) or Rule 21(2) of the West Bengal Land Reforms Rules, 1965 is bad. He urged that section 50 was limited in scope and provided that recording in respect of changes after the date of vesting under the West Bengal Estates Acquisition Act, 1953 upto the date of notification under section 51 of the West Bengal Land Reforms Act, 1955 and section 51 provides for revision and preparation of the record of rights by an elaborate procedure laid down in Rules 22 to 25 read with Schedule A and Schedule B. These two sections could not be applied simultaneously. He, further, urged that if the West Bengal Land Reforms Act, 1955 purported to confer powers to change the record of rights both under sections 50 and 51, then, both the sections were unconstitutional on the ground of discrimination and violation of the basic features of the Constitution. Dealing with the argument that when there was power both under sections 50 and 51 it was immaterial which section was resorted to, learned advocate submitted, that this contention was not available to the respondents. Dealing with the argument that when there was power both under sections 50 and 51 it was immaterial which section was resorted to, learned advocate submitted, that this contention was not available to the respondents. He, further urged that amendment of Schedule A was not valid for, inter alia, the following reasons; (a) After the notification was issued under section 51 of the West Bengal Land Reforms Act 1955 and the settlement proceeding were started suddenly Schedule A was amended giving unlimited and unguided power to cancel on his own motion, or on application of others or at any time and this was excessive delegation. (b) Recording of Bargadars by omitting or amalgamating stages of (i) to (v) of Schedule A of West Bengal Land Reforms Rules 1965 would result in failure to demarcate and allocate separate numbers of plots of each Bargadars and would be in-contravention of the technical rules, Rule 7 of Schedule A and section 51(4) and section 51(6) of the Act. According to him, the rules violate the section itself if the rules were to & be treated as part of the Act. then, the same were discriminatory and it would prejudice the right to property. Therefore, it was submitted that recording must be done under section 51 read with Rules 22 to 25 and unamended Schedule A and-Schedule B. 8. Learned Advocate, further, submitted that in the process of recording the names of Bargadars section 21B of the West Bengal land Reforms Act, 1955 could not be resorted to for the following amongst other reasons :- (i). In view of the provision of section 16(3) and Section 19A(2A) of the West Bengal Land Reforms Act. 1955 the burden of proving the negative has been unreasonably put upon this owners. (ii). That the term "person lawfully cultivating" is a person who is not a trespasser, may be a labourer, licensee or caretaker and all of them would be presumed to be Bargadars under section 21 B and the same would cause serious prejudice to all concerned specially the owners. (iii). That section 21B was an unreasonable restriction in view of the reduction of ceiling from individual ceiling of 25 acres to the family ceiling of 17 acres for a family of five and also in view of section 17(4) (5) and (6) of the West Bengal Land Reforms Act, 1955. (iii). That section 21B was an unreasonable restriction in view of the reduction of ceiling from individual ceiling of 25 acres to the family ceiling of 17 acres for a family of five and also in view of section 17(4) (5) and (6) of the West Bengal Land Reforms Act, 1955. It was, further, argued that in view of the decision of the Division Bench of this Court in the case of (17) Amarendra v. Commissioner, Agricultural I.T. 62 CWN 670 which was not cited or considered in my decision in the case of (18) D.N. Patra v. Agricultural I.T. Officer, 82 CWN page 117, under section 7 of the Agricultural Income-Tax Act, 1944 a owner might still be held liable for the entire produce of a land expected to be yielded even though he got only a fraction of the yield under the Act and, therefore, the same would create unreasonable restriction. It was, further, submitted that as the right of Bargadars had been made heritable it would be difficult to get the maximum yield from the land in question in case of Bargadar who was succeeded by a minor, widow or physically incapacited person. It was, further, urged that there was no provision for termination of cultivation for negligence by a Bargadar, and all these, according to Shri Bhunia would cause a very great hardship on families owning small plots of land and dependent on the yield and produce of the said lands and would, therefore, create unreasonable restriction on the right to hold property. It was, further, submitted that section 21B was against the provisions of the Evidence Act, which according to Shri Bhuyia embodied the basic principles of fair play and justice and to that extent section 21B, according to him, was against the basic features of the Constitution. 9. Section 21B, Shri Bhunia further submitted, was against the provision of Article 304(b) of the Constitution. He highlighted the provision of the subsequent amendment of the Act whereby the owner or member of the family should have their principal source of income from land within 8 kms. of the mouza in order to come within the purview of personal cultivation under the provision of the West Bengal Land Reforms Act, 1955 and he, therefore, urged that the small traders or a family doing some job could not get the yield of income from the land. of the mouza in order to come within the purview of personal cultivation under the provision of the West Bengal Land Reforms Act, 1955 and he, therefore, urged that the small traders or a family doing some job could not get the yield of income from the land. According to him as the provisions of Article 304(b) of the Constitution were attracted the prior approval of the President of India was necessary and the mere subsequent assent of the President of India to the amending Act, would not cure the requirement of prior permission contemplated by the proviso to Article 304 of the Constitution and therefore the said provisions were bad. He in this connection drew my attention to several decisions to which I will refer later. 10. According to learned advocate section 21B of the said Act in so far as it conferred rights upon labourers; licensees or caretakers was a colourable piece of legislation on account of legislative incompetence for the field had already been occupied by the Centre by passing the Minimum Wages Act, 1948 and he in this connection drew my attention to Entry 7 of List III read with Entry 97 of List I of the 7th Schedule and he, further, submitted that the impugned legislation could not be included in Entry 14 or Entry 18 or Entry 45 of List II of the 7th Schedule of the Constitution by implication. In this connection reliance was placed on certain decisions in the cases of (19) Board of Trustees v. State of Delhi AIR 1962 SC 458 at page 473, (20) Viravelu Special v. Deputy Collector AIR 1965 SC 1017 and (21) Shankar anarvana v. State of Mysore AIR 1966 SC 1572. The learned advocate, further submitted that Barga right was not right in or over a land tenure within Entry 18 of List II in view of the provisions of section 2(h) of the Estates Acquisition Act, 1953 and section 2(6A), section 145 and section 15A of the West Bengal Land Reforms Act, 1955 and the failure of the State Government to provide for compensation to the Bargadars for vested lands would amount to depreviation of property without compensation and would be violative of Article 31A of the Constitution of India. In this connection reliance was placed on the decisions in the cases of (22) Rajani Kanta Hazra v. Junior Land Reforms Officer 1978 (2) CLJ page 30 and (17) Amarendra v. Commissioner, Agricultural I. T. 62 CWN page 670. In support of the proposition that section 2(8), section 4(4)(b)(c), second explanation to section 17 and third explanation to section 17 together with the other provisions of the Act the same was vague and unpredictable and as such unconstitutional, learned advocate relied on the decisions in the case of (23) K. A. Abbas v. Union of India AIR (1971) SC 481 at 496, and (4) Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 . It was submitted that in view of items no. 60, 81, 181, 183, 184 of the 9th Schedule of the Constitution together with section 3 and the non-obstante clause of Chapter IIB and sub-rule (2) of Rule 21 further vegueness was created and therefore was unpredictable which was made more so by the non-inclusion of Act XXX IV of 1977 in the 9th Schedule. 11. Shri Ajit Kr. Panja appearing for some of the respondents, further contended that before recording the names of the Bargadars if the entirely of the Act was read in its proper perspective, then, it would be clear that express and specific and individual notices to the recorded owners were contemplated before the act of recording. For this purpose he drew my attention to the provision of section 9(1) of the Act, section 48(2), section 140(4), section 51 (2) and Rule 24 of the said Act and West Bengal Land Reforms Rules. He also submitted that even in respect of the different provisions where no express notice had been contemplated on the basis of the principle audi alteram partem notice and opportunity were required to be given before affecting the rights of the parties. In this connection he drew my attention to Schedule A, Clause I, second proviso which was amended by the notification dated 9th of September, 1978, similarly, the notification no. 3068 L issued by the notification dated 24th of August, 1978. He also drew my attention to the amendment of section 14T which was introduced by the West Bengal Land Reforms Amendment Act, 1978. 3068 L issued by the notification dated 24th of August, 1978. He also drew my attention to the amendment of section 14T which was introduced by the West Bengal Land Reforms Amendment Act, 1978. He also relied on the powers of the officers dealing with the proceedings and drew my attention to section 4(28), section 4(4) and section 14E. He submitted that Rule 8 of the West Bengal Land Reforms (Bargadars) Rule 1956 indicated the manner of service of the notices and processes where no mode had been specified, similarly, Rule 30 of the West Bengal Land Reform Rules, 1965 specified where no rules had been indicated. He drew my attention to section 27 of the General Clauses Act, 1897 in support of the argument that where no notice had been indicated notice to the affected persons by registered post was contemplated. He strongly criticised the process of serving of the notices to the different political parties which have been annexed to the petitions in which he was appearing and submitted that this was unwarranted by any rules or provisions of any section relevant for the present purpose and he urged that the same was being done only to politicise the matter. He also drew my attention to the circular of 5th of July, 1978 whereunder revenue officers and settlement officers had been directed to carry out the Operation Barga in a manner which was contrary, according to him, the provision of law and to gather the informations behind the back of the persons who would be vitally affected and to act thereon. He submitted that the same was unwarranted and contrary to the principles of natural justice and fair play. 12. Sree Basanta Kr. Panda appearing for some of the petitioners also adopted the same argument indicated before. He submitted that section 21B of the West Bengal Land Reforms Act, 1955 was ultra-vires the Constitution and it created, according to him, two classes or two sets of Bargadars and was violative of Article 14 of the Constitution. He submitted that the procedure that was envisaged for recording of Bargadars under the Bengal Tenancy Act, 1885 was very scientific and appropriate and was in consonance with the principles of fair play and natural justice. In this connection he drew my attention to the Technical Rules and Instructions of the Settlement Department and to section 3(17) of Bengal Tenancy Act. In this connection he drew my attention to the Technical Rules and Instructions of the Settlement Department and to section 3(17) of Bengal Tenancy Act. He specifically drew my attention to the several parts being Part I and emphasised the need of traverse survey as contained in the said Technical Rules. He also drew my attention to the purpose and object of Khanapuri and Field Bujharat as would be apparent from Chapters III & V of Part II of the Technical Rules and Instructions of the Settlement Department. In this connection he also drew my attention to Chapter IX for emphasising the importance of attestation and Chapter XIV which indicated lama Bandi in the said Technical Rules and Instructions. He also drew my attention to the Survey and Settlement Manual, 1935 and specially relied on the objection form under section 103A of the Bengal Tenancy, Act, 1885 which appears at page 453. His point in drawing my attention to these was emphasis that the procedure previously envisaged and followed by the Settlement Department in preparation of the record of rights which was both fair to all concerned and was consistent with justice. In this connection he also drew my attention to sections 5 and 35 of the West Bengal Estates Acquisition Act, 1953 and to section 7 of the West Bengal Bargadars' Act, 1950 He referred me to the decisions in the cases of (24) Darpa Hari v. Samarendra, 57 CWN 337, and in the case of (17) Amarendra v. Commissioner Agricultural IT, 62 CWN page 670 and (25) Dr. D. N. Mukherjee v. J. N. Bhaduri, 69 CWN page 201. He, further urged that section 51A of the West Bengal Land Reforms Act, 1955 read with Rules 22 and 25 did not authorise the Revenue Officers to determine who was a Bargadar. In this connection he drew my attention to section 21(3) of the Act and also reiterated that in as much as section 21B was a subsequent incorporation, subsequent to the placement of the West Bengal Land Reforms Act, 1955 in the 9th Schedule, it was not immune from being challenged on the ground of violation of the fundamental rights. He in any event submitted that section 21 B was in direct conflict with Section 2, sub-section (2) of the said Act and therefore there was scope for discrimination which was violative of Article 14 of the Constitution. He in any event submitted that section 21 B was in direct conflict with Section 2, sub-section (2) of the said Act and therefore there was scope for discrimination which was violative of Article 14 of the Constitution. He, further, submitted that section 21B of the Act in so far as it put an onerous onus on the owners was violative of the rights to property an infringed Article 19(1)(f) of the Constitution. He, submitted that it was only the Bhagchas Officers under section 18 who could determine the status of a Bargadar and sections 50 and 51 had no application. He submitted that in case of conflict between section 18 and sections 50 and 51, section 18 of the West Bengal Land Reforms Act, 1955 should prevail. He submitted that notification which amalgamated the different procedure under Schedule A was improper and was destructive, of the purposes of the Act. He also urged that before final publication of record of rights under section 51A of the West Bengal Land Reform~ Act, 1955 there was no scope of granting any certificate and such certificate had created undue confusion in rural areas and rural unrest. He also took a point that there was no notification for Murshidabad and Cooch Behar, but this point in view of the copies of the notifications which were produced before me is no longer of any substance. 13. Sree Biswanath Bajpayee appearing for some of the petitioners also submitted that the Revenue Officer who was quasi judicial Officer determining lis between the parties was not authorised to act suo moto for correction of record of rights on the basis of information gathered behind the back of the concerned parties. He severely critisised the circular dated 5th of July, 1978 and took me through the different paragraphs of the said circular to emphasise his points that these executive instructions were contrary to the statutory provisions applicable in this case. He emphasised that there was the clear conflict between section 18 and 18 (2) of the West Bengal land Reforms Act, 1955 and sections 50 and 51 if the contention advanced on behalf of the Government was accepted. He also submitted that Chapter III of the West Bengal Land Reforms Act, 1955 was the appropriate chapter which should be resorted to in case of a dispute between a bargadar And an owner. He also submitted that Chapter III of the West Bengal Land Reforms Act, 1955 was the appropriate chapter which should be resorted to in case of a dispute between a bargadar And an owner. He also urged that section 21B was vague because there was no definition of the person who was 'lawfully cultivating' and if the expression 'lawfully cultivating' was meant to cover any licensees or agents or servants of an owner, then, the same was in clear conflict with section 2, sub-section (2) of the West Bengal Land Reforms Act, 1955. He urged that under section 51 A of the Act a Revenue Officer was not empowered to collect informations behind the back of the parties. 14. It may be mentioned that the case of (26) Sushil Kumar Mitra v. Bhagabatdhar Girl was disposed of on the prayer of the petitioner by directing the respondents to act in compliance with my directions contained in the order dated 22nd of December, 1978 in C.R. No. 1339(W) of 1978. It is, therefore, not very material to consider in detail the submissions of Shri Gopal Mukherjee who was appearing on behalf of the petitioners in the said matter, but since he had argued I will note some of his submissions. He submitted that in carrying out what he called Operation Barga the Government was acting illegally by executive directions and. he urged that executive directions contained in the letter of 5th of July, 1978 was an attempt to influence the quasi-judicial determination of the question. He also urged that discussion with political parties was violative of the true principles of justice and fair play. He urged that application of section 21B of the West Bengal Land Reforms Act, 1955 for the preparation of record of right was void and in contravention of the Act. According to him, Chapter III of the West Bengal land Reforms Act, containing section 15 to section 23C dealt with the rights and liabilities of Bargadars and determination of their rights and status and the protection of their rights. Chapter VII of the said Act and the rules in connection with those sections only dealt with the maintenance and revision of the record of rights and these two chapters were different and therefore the provisions of section 21 B could not be attracted in the application of Chapter VII of the said Act. 15. Chapter VII of the said Act and the rules in connection with those sections only dealt with the maintenance and revision of the record of rights and these two chapters were different and therefore the provisions of section 21 B could not be attracted in the application of Chapter VII of the said Act. 15. Before I deal with the contentions of the learned Additional Advocate General I must mention that Shri Ajit Kumar Panja also drew my attention to the decision in the case of (27) Savoy Hotel v. London County Council, (1900) 1 Q. B. page 665 at page 669 and the decision in the case of (18) Darbari Lal v. Dharam wati, AIR 1957 Allahabad, page 541 I need not detain myself with the discussion of these cases because I do not think that the said decisions have much relevance to the facts and circumstances of the case, and the controversy before me. 16. Learned Additional Advocate General apart from dealing with the factual deficiencies in the several petitions with which I am concerned in this judgment, with which I shall deal later, made detailed submissions on the points raised on behalf of the petitioners. He submitted that it was not correct to state that "Operation Barga" was not justified bylaw. He urged that the idea was to record large numbers of Bargadars, who according to him, had not been recorded so far as they were entitled under the law to be so recorded, with all the possible expedition and 'Operation Barga' was a convenient phrase to describe the process and to impress the urgency of the requirement particularly on the officials concerned. But he emphasised that the recording had to be done according to the procedure laid down in the West Bengal Land Reforms Act, 1955 hereinafter referred to as the said Act and the West Bengal Land Reforms Rules, 1965 hereinafter referred to as the said rules. For this purpose he submitted that certain informations were collected. According to him, even quasi-judicial tribunals were authorised to gather informations from all possible sources without being fettered by any procedure. In this connection he relied on the observations of the Supreme Court in the case of (29) State of Mysore v. Sribabasappa, AIR 1963 SC page 375 and he drew my attention to paragraphs 3 and 4 of the Judgment in the said decision. In this connection he relied on the observations of the Supreme Court in the case of (29) State of Mysore v. Sribabasappa, AIR 1963 SC page 375 and he drew my attention to paragraphs 3 and 4 of the Judgment in the said decision. Learned Additional Advocate General, further, urged that the said Act and the said Rules laid down an elaborate procedure for the purpose of recording including recording of bargadars. He urged that the recording may be either (a) by bringing up to date the records already prepared by incorporating changes including cultivation by Bargadars or (b) by preparation of new records of rights. According to him, the first situtation was governed by section 50 and Rule 21 Clause (e) of section and Rule 21(2) made special provision for recording of Bargadars while Rule 21(1) also enabled Bargadars to be recorded in a proper case where there had been already an adjudication about his status by appropriate proceedings. The second situation was governed by sections 51 and 51 A of the said Act and Rules 22 to 25 and paragraphs (1) to (8) of Schedule A to the said rules. He urged that the procedure prescribed in both these cases ensured to the parties interested including the owners of the land opportunities to represent their cases which was eminently fair and reasonable in the circumstances of the situation. In a case covered by section 50 of the said Act and Rule 21(2) of the said rules the parties concerned including the owners were to be given an opportunity of being heard before incorporating the changes in the record of rights under clause (e) of section 50 (Rule 21(2). In cases covered by section 51 and section 51A a very elaborate procedure has been prescribed not only by the said rules but by administrative rules comprised in the technical rules and Survey and Settlement Manual as well as Government instructions contained in the pamphlet issued in 1974, a copy whereof was handed over to me and it was specifically stressed and I record it as a fact that learned Additional Advocate General submitted that this procedure was being followed in the process of recording. According to learned Additional Advocate General, these provide for opportunities at number of different stages to challenge the correctness of records. According to learned Additional Advocate General, these provide for opportunities at number of different stages to challenge the correctness of records. He, further, urged that notwithstanding that the first two stages, namely traverse and cadastral survey have been omitted, the proclamation under the Bengal Survey Act, 1875 is still to be issued before commencement of settlement operation because survey might still become necessary due to changes of feature and other causes. According to him, this would at least inform all interested parties about the impending settlement operation and enable them to claim and resist claims. At the stage of Bujharat or local explanation there is an inspection on the field which offers opportunity of correction at the instance of whoever is interested. In this connection he drew my attention to Rule 5. After the Bujharal a proclamation is issued intimating commencement of attestation and calling upon interested parties to be present See Rule 6. Thereafter a public notice is to be published in each village intimating the place at which the draft record of rights would be available for public inspection. My attention was drawn to Rule 24(1). The draft record was to be placed for public inspection free of charge for one month at a convenient place determined by the appropriate Revenue Officer. There are provisions for settlement of disputes at the Bujharat and at the attestation stages (Rules 5 and 6) and if and when any dispute is raised at any stage the procedure is laid down in the technical rules and the Government instructions with appropriate forms lay down which provide for notice to the interested parties. Even after the publication of the draft record objections could be filed for a month and must be considered and disposed of in accordance with an elaborate procedure which includes notice to the other party and hearing the parties or their representatives. Objections decides exparte might be set aside on applications within 30 days, and for this proper form is prescribed for filing objection. He referred me to Rule 24(2). Objections decides exparte might be set aside on applications within 30 days, and for this proper form is prescribed for filing objection. He referred me to Rule 24(2). According to learned Additional Advocate General, under the recent amendment of Schedule A the names of Bargadars might be recorded at any stage before final publication, but in that case whenever and at whatever stage Bargadars are recorded it must he done after giving the persons interested including the owners such opportunities of being heard as the Revenue Officers might deem fit. He, therefore, urged that in the procedure envisaged there was ample compliance with the principles of natural justice. What particular rule of natural justice would apply to a particular case would depend, to a great extent on the facts and in the circumstances of a particular case and the framework of law under which the enquiry is held and the constitution of the tribunal appointed for that purpose. When a complaint of non-observance of some principles of natural justice is made the Court should decide whether the observation of that rule was necessary for arriving at a just decision in the facts of that case. Learned Additional Advocate General in this connection drew my attention to the observations of the Supreme Court in the cases of (30) A.K. Kraipak v. Union of India, AIR 1970 SC 150 at page 157, (31) Suresh Koshy v. University of Kerala, AIR 1969 SC 198 , (32) C. B. Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 at page 2050. There is no Axed yard stick of natural justice. The concept of natural justice, he urged, could not be put in to a straight jacket. The only requirement was that the person concerned should have a reasonable opportunity to present his case and that the authority was to act fairly, impartially and reasonably. Where administrative authorities were concerned the duty was not so much to act judicially as it was to act fairly. He drew support from the observations of the Supreme Court in the case of (33) Kesava Mills Co. v. Union of India, AIR 1973 SC 389 at page 393 to 394. He further submitted that principles of natural justice operated in areas not covered by laws and these principles did not supplant the law but supplemented the Jaw. He drew support from the observations of the Supreme Court in the case of (33) Kesava Mills Co. v. Union of India, AIR 1973 SC 389 at page 393 to 394. He further submitted that principles of natural justice operated in areas not covered by laws and these principles did not supplant the law but supplemented the Jaw. For this he relied on the observations in the case of (30) A.K. Kraipak v. Union of India, AIR 1970 SC 150 at page 156 and he relied on paragraph 20 of the judgment. He also referred me to the decision in the cases of (34) Makhanlal Dey v. Union of India, 70 CWN 915 at pages 926 and 945 and (35) B. Singh v. Commissioner for the Port of Calcutta,70 CWN 786 at page 801. According to the learned Advocate General the recent amendment of Rule 21 and in paragraph 1 of Schedule A issued in September, 1978, in so far as these enabled the Revenue Officers to record Bargadars on their own motion were not repugnant to the principles of natural justice because, (a) a quasi-judicial Tribunal could collect information from all sources provided these were communicated to the relevant party. See the observations in the case of (29) State of Mysore v. Shibabasappa, AIR 1963 SC 375 . The informations so collected according to learned Additional Advocate General was no worse than the impression created by a litigant who had a right to begin any ordinary or civil or criminal litigation and that there was provision both in the amended rule 21(2) and in clause 2 of the second proviso to the amended paragraph I of the Schedule A for giving all opportunities of being heard before recording was done. 17. Learned Additional Advocate General, further, submitted that the owner had no right to challenge the grant of certificates to Bargadars as contemplated under the amended rules. He urged that the certificate envisaged under the amended rules of Schedule A did not create either any title or any right in favour of bargadars. According to him, the certific8tes were granted only for the purpose of facilitating taking of loans by the Bargadars from the Nationalised Banks for the purpose of cultivation. He urged that the certificate envisaged under the amended rules of Schedule A did not create either any title or any right in favour of bargadars. According to him, the certific8tes were granted only for the purpose of facilitating taking of loans by the Bargadars from the Nationalised Banks for the purpose of cultivation. He urged that it was the policy of the Government both, Central as well as State, to help rural cultivators with loans from the banks and so that the banks might get some evidence that the persons applying for loans for the purpose of cultivation were genuinely cultivating this process of certificate was envisaged, it created no rights against the landlords or the recorded owners or recorded Bargadars in favour of those to whom the certificate had been granted. To the criticism that the certificate created suspicions in the mind of the police and created prima facie evidence in support of the claims of the Bargadars which very often help the Bargadars to come upon the disputed lands and with the police assistance, learned Additional Advocate General submitted, that the certificates had no such effect because when the police was obliged to act the police could only act in order to prevent any cognizable offence. He drew my attention to section 154, section 155, section 156 and section 157 of the Code of Criminal Procedure. Whether a particular document would raise suspicion in the mind of a police officer or not could not be provided or prevented by any process of law. In any case no person learned Additional Advocate General submitted, had any right to be above suspicion. The police officers were to investigate whether they would act or not after taking into consideration all relevant factors. He, further, urged that the Revenue Officers or the Bhagchas Officers could "not act for affecting the rights of others on the basis of the certificates nor can any judicial or quasi-judicial authority act on the basis of the certificates. Further he urged that no one is put out of possession on the basis of the certificate. He submitted that in any event in the process of the issue of the certificate there was ample protection to the owners. In the eye of law in view of the role and purpose of the certificate, the certificate could not constitute proof or evidence against the owners. He submitted that in any event in the process of the issue of the certificate there was ample protection to the owners. In the eye of law in view of the role and purpose of the certificate, the certificate could not constitute proof or evidence against the owners. Even assuming that in some cases a certificate in favour of a cultivator created any suspicion no one has any cause of action in respect of the same and unless there was any cause of action the petitioners had no legal right to prevent the grant of certificates. Learned Additional Advocate General drew my attention to the observations in the cases of (36) Day v. Brownrigh, (1879) 10 Ch. D. 294 at 304, (37) The Mogul Steamship Co. v. Mc Gregor, (1899) 23 Q B Division 598 at page 613 (38) Clark v. London General Omibus Co. Ltd, 1906 (2) KB 648 at page 663 and (39) Sweeny v. Coote, 1907 Appeal Cases 221 at 223. Certificate does not create any title in favour of the grantee. He drew my attention to the observations in the decision in the case of (40) Walli Mohammad v. Md. Baksh, AIR 1930 Privy Council 91 and the observations of the Division Bench of this Court in the case of (41) State of West Bengal v. Konailal Saha, 1979 (1) CLJ page 104 and 110. After draft publication he further submitted that objections could be filed. He said that no person had any right to the protected against suspicion and he relied on the observations in the case of (41) State of Orissa v. Binapani Debi, AIR 1967 SC 1269 , and he relied on page 1271. He also drew my attention to the decision in the case of (43) Ram Gopal v. State of M. P., AIR 1970 SC page 158 at paragraph 10. He urged that the main purpose of granting such certificate was to facilitate taking of loans from the banks. 18. He, then, submitted that it was incorrect view of law to state that no recording could be done unless if a dispute arose in the course of recording procedure whether a claimant is or is not a bargadar is previously settled under section 18(2) of the said Act. 18. He, then, submitted that it was incorrect view of law to state that no recording could be done unless if a dispute arose in the course of recording procedure whether a claimant is or is not a bargadar is previously settled under section 18(2) of the said Act. According to learned Additional Advocate General section 18(2) did not confer exclusive jurisdiction to decide all disputes regarding Bargadarship whenever or however arising, since such disputes might arise at different stages of recording for example, under paragraphs 5 & 6 of Schedule A as well as under section 51A read with Rule 24 of the said rules. The authority must clearly be given to the Revenue Officer to deal with such disputes otherwise these provisions would become meaningless. It was, further, submitted that there was no provisions for reference of dispute arising in the course of recording to the officers empowered under section 18 of the said Act as there is in the case of dispute by the Civil and Criminal Court under section 21(3) of the said Act. He, further, submitted that the Revenue Officers had no jurisdiction to refer such a dispute to the said officers nor has the said officers any jurisdiction to consider such a reference at the stage of recording. An interpretation that each dispute arising in the course of recording must be settled under section 18(2) would reduce the law to absurdity and bring recording to a deadlock, as such disputed would arise on innumberable occasions and on each occasion, further, proceedings would have to be suspended. The word "or otherwise" in section 18(2) of the Act was consequential to the introduction of section 21(3) both being introduced by the same amending Act. "Or otherwise" is therefore complementary to section 21(3) of the said Act. See in this connection the observations in the case of (44) Chapalabala Adikari v. Monoranjan Das, 1975 (2) CLJ page 447. paragraph 12 at page 452 of the report and the decision in the case of (45) Prabir Kumar Pattanayak v. State of W.B., 1977 (1) CLJ page 219 at page 220. None of the amendments made to the said rules in September, 1978 according to the learned Additional Advocate General was ultravires. I shall refer presently to the said amendments when I deal with the actual provisions of the Act and the rules as froJi1 time to time amended. None of the amendments made to the said rules in September, 1978 according to the learned Additional Advocate General was ultravires. I shall refer presently to the said amendments when I deal with the actual provisions of the Act and the rules as froJi1 time to time amended. 19. Section 60(2) of the said Act according to learned Additional Advocate General does not make any excessive delegation of rule making power simply by enacting that the rules are to become part of the Act. This is a principle of interpretation which is universally, accepted. He referred me to the decision in the case of (46) State of U. P v. Babu Ram, AIR 1961 SC page 751 at page 761 where the Supreme Court quoted with approval the observations in Maxwell's Statute Law and also he referred me to page 763 of the said report. He also drew my attention to the decision of this Court in the case of (47) Bejoy v. I. T. Authority, 61 CWN page 590 at page 596. According to him section 60(1) provides a clear guideline for rule making namely 'to carry out the purposes of the said Act.' He, further, submitted that there was no discrimination involved in the two different procedures envisaged in Rule 21(1) and Rule 21(2) of the said rules because these deal with two different situations. The former prescribed only the ministerial duty for a Revenue Officer to correct records in accordance with orders already made in previous proceedings, while the latter enabled him to act on his own motion for recording changes. The two therefore operate in different fields. 20. Section 21B according to learned Additional Advocate General was not ultravires because (a), it was not beyond the legislative powers of the State Assembly. According to learned Additional Advocate General the challenge to the section arose from the misconception as to the role and purpose of section 21B. Section 21B, according to learned Additional Advocate General, merely prescribes a special rule of evidence and therefore falls under item 12 of list III. This said section is covered by item 12 of list III and does not fall under item 7 of list III or under item 14 or 18 of list II (b). Section IIB was not an unreasonable restriction contrary to Article 19(5) of the Constitution. This said section is covered by item 12 of list III and does not fall under item 7 of list III or under item 14 or 18 of list II (b). Section IIB was not an unreasonable restriction contrary to Article 19(5) of the Constitution. Reasonableness of restriction on right to hold property might be judged in relation to the social, economic and political context. He drew my attention to the observations in the case of Ramhari v. Nilmoni Das, AIR 1952 Cal. 184 which I have referred to. Reasonableness should not only be judged from the point of view as to whose right is affected. It must be judged in the context of the general public. He relied on the observations in the case of (48) In re : Oriental Gas Co., AIR 1961 Cal, page 267. General Public, according to learned Additional Advocate General might comprise of a part of a public or a limited class. He referred me to the decision in the case of (49) Iswari Prasad v. N.R. Sen, AIR 1952 Cal. page 273 and he relied on the same decision also for the purposes that reasonableness should be judged from a broad view. There is always a presumption of the constitutionality in favour of a legislation. He referred me to the decision in the case of (50) Shersingh v. Rajasthan State, AIR 1954 Rajasthan page 65. The Social and economic context in rural West Bengal in relation to Bargadars as reflected in the Floud Commission Report which I have referred to hereinbefore must be kept in view. It may not be also inappropriate according to learned Additional Advocate General to bear in mind the observation of the Division Bench of this Court in the case of (49) Iswari Prosad v. N. R. Sen, AIR 1952 Cal. page 273 where the Division Bench was deciding, the question of mass eviction of tenants in the Premises Tenancy Act. Therefore, learned Additional Advocate General submitted that looked at in the light of the principles in the social and economic context of rural Bengal to-day section 21 B was pre-eminently reasonable. page 273 where the Division Bench was deciding, the question of mass eviction of tenants in the Premises Tenancy Act. Therefore, learned Additional Advocate General submitted that looked at in the light of the principles in the social and economic context of rural Bengal to-day section 21 B was pre-eminently reasonable. He further urged that the contention that section 21B was unreasonable when read with section 16A (2)(a) or the amended definition of 'personal cultivation' in the said Act or in view of the reduction of ceiling from 25 to 17 acres for a family of 5 or in view of provision of section 17(4), (5), (6) arose out of misconception that section 21B conferred right of bargadarship on licences, labourers or caretakers, section 21B was only a rule of evidence. It requires the Bargadars to establish his lawful cultivation only by establishing that his cultivation is not unlawful and then he gets the advantage of the presumption contemplated by the section. According to learned Additional Advocate General to put any other interpretation on section 21B would be to make the presumption redundant and reduce the section to absurdity because no one could claim to be a bargadar if he had made out a positive case that he was lawfully cultivating under some other title. Section 21 B was not unreasonable in view of the difficulties of the owners who were minors, widows or physically disabled persons or in view of the heirs of Bargadars being minors, widows or disabled persons. Owners who are minors, widows or physically incapacitated did not suffer more than any by cultivation through Bargadars in any case in taking a broad view of the matter every possible claim of insignificant social context cannot be satisfied. Learned Additional Advocate general, further, submitted that there is ample safeguard against heirs of Bargadars who were not able to cultivate in view of the provisions of section 15A(3) of the said Act. He, further, urged that absence of provision for termination for negligence or Bargadars did not make the provision of section 21B unreasonable. Learned Additional Advocate general, further, submitted that there is ample safeguard against heirs of Bargadars who were not able to cultivate in view of the provisions of section 15A(3) of the said Act. He, further, urged that absence of provision for termination for negligence or Bargadars did not make the provision of section 21B unreasonable. When the share of bargadar was uncertain as under the West Bengal Bargadars Act, 1950 there might have been some ground for providing for termination on the ground of negligence but now the bargadar has been given a minimum of 50% as the share of the produce which rises to 75% if he provides all the inputs Negligence should practically be ruled down because that would be against the normal code of conduct of human beings. Learned Additional Advocate General further, stressed that it is a social fact on which the court might as well take notice that cultivators of small blocks normally put in the best efforts to get the maximum of production. He referred me to the observations in the case of (51) L. Jagnnnath v. L. R. Mahin, AIR 1972 SC page 425 at page 437. In any event neither the recent amendment of the rules nor section 21B can be challenged because the legislation was to give effect to the directive principles of the Constitution as enunciated in Articles 38, 39(b) and Article 46 of the Constitution. Therefore, he submitted, that these were protected by Article 31C. He, further, urged that directive principles could not be ignored even though these were not expressly mentioned in the amendment of the rules and the Act. He relied on the proposition in the observations of the case of (52) R. S. Swamiji v. State of Mysore, AIR 1966 SC 1172 . He lastly submitted that these applications were premature because as yet no right or supposed right of the petitioners had been invaded nor was any imminent danger of the same being invaded. He drew my attention to the observations of the Supreme Court in the case of (53) Maganbhai v. Union of India, AIR (1969) SC 783 at paragraph 21. He further urged that as in many cases only notices had been issued. There was no initial lack of jurisdiction to consider the objection to such notices an application under Article 226 would not lie without preferring an objection before the appropriate authorities. He further urged that as in many cases only notices had been issued. There was no initial lack of jurisdiction to consider the objection to such notices an application under Article 226 would not lie without preferring an objection before the appropriate authorities. He referred me to the decision in the case of (54) Lakhminarayan v. Collector of Customs, AIR 1961 Cal, page 616. He submitted, therefore, that there was no imminent danger and the applications were, therefore, premature and not maintainable. 21. I have not dealt with the factual aspects of the several writ applications which I shall presently do, but before I do so, I have to set out in detail the relevant provisions of the appropriate Act and the rules as from time to time framed and the procedure that have been indicated to me by the learned Additional Advocate General. Before I do so I must mention that as several provisions of the Act, and rules which have become part of the Act have been challenged in these applications had these been suits I would have been obliged in view of the provision of the Code of Civil Procedure to direct issue of notice to the Advocate General of the State. But in view of the explanation to section 141 of the Code of Civil Procedure and further in view of the fact that learned Additional Advocate General is appearing for the State in this case, I felt that there was no necessity of directing any fresh notice to be given to the Advocate General. No point on this ground was also taken on behalf of the respondents. 22. As it appears to me the main questions that require consideration in these writ applications, are the following :- (1) Who is a Bargadar ? (2) How is that question to be determined? (3) What is the scope and effect of Section 21 B of the Act? (4) Is there any conflict between section 18 on the one hand and section 50 and sections 51 and 51 A of the Act? (5) Are the amendments to the rules made bad or ultra-vires; (6) Is section 21 B of the Act ultra vires? (7) Is section 60 of the Act ultra vires? (8) Does the administrative directions contained in the communication dated 5th of July, 1978 contain any illegal directions and what is the scope and effect thereof? (5) Are the amendments to the rules made bad or ultra-vires; (6) Is section 21 B of the Act ultra vires? (7) Is section 60 of the Act ultra vires? (8) Does the administrative directions contained in the communication dated 5th of July, 1978 contain any illegal directions and what is the scope and effect thereof? (9) Have the petitioners any right to move these applications in this Court at the stage that they have come? (10) Are the quasi-judicial authorities entitled to gather informations in the manner contemplated by the amended rules to which I shall presently refer? (11) Is there any violation of the principles of natural justice in the procedure envisaged in the, recording of Bargadars under the different provisions of the Act and the rules framed thereunder? (12) Have the respondents acted illegally in implementing the recording of Bargadars ? (13) What is the effect of the certificate contemplated under amended Schedule A of the Act? (14) Are the notices given to the different political parties illegal or malafide? (15) To what reliefs, if any, are the petitioners entitled to in these applications under Article 226 of the Constitution? 23. But before I proceed to consider these questions and the factual aspects of the different writ applications it is necessary to consider the relevant statutory provisions including the notifications from time to time issued. It is first necessary, therefore, to refer to the West Bengal Land Reforms Act, 1955 being West Bengal Act X of 1956 which came into effect on 30th of March, 1956. The said Act was "to reform the law relating to laud tenure consequent on the vesting of all estates and certain rights therein in the State." It may be mentioned that the West Bengal Estates Acquisition Act, 1953 vested certain estates and certain rights therein in the State. It is not necessary for my present purpose to refer in detail to the provisions of the West Bengal Estates Acquisition Act, 1953. The West Bengal Land Reforms Act, 1955 hereinafter referred-to as the said Act provides for certain definitions. It is not necessary for my present purpose to refer in detail to the provisions of the West Bengal Estates Acquisition Act, 1953. The West Bengal Land Reforms Act, 1955 hereinafter referred-to as the said Act provides for certain definitions. Under Section 2(2) a bargadar has been defined as follows :- (2) "bargadar" means a person who under the system generally known as adhi, barga, or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes a person who under the system generally known as Kisani cultivates the land of another person on condition of receiving a share of the produce of such land from that person." Collector has been defined under sub-section (4) as follows :- (4) "Collector" means the Collector of a district or any other officer appointed by the State Government to discharge any of the functions of a Collector under this Act." Sub-section (8) of Section 2 defines 'personal cultivation' as follows :- (8) "Personal cultivation" means cultivation by a person of his own land on his own account. – (a) by his own labour, or (b) by the labour of any member of his family, or (c) by servants or labourers on wages payable in cash or in kind (not being a share of the produce) or both Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is produced from such land. Explanation - The term "family shall have the same meaning as in clause (c) of section 14K." Sub-section (12) of Section 2 deals with the Revenue Officer which is as follows :- (12) "Revenue Officer" means any officer whom the State Government may appoint by name or by virtue of his office to discharge any of the functions of a Revenue Officer in any area." Section 3 provides that the provisions of the said Act shall have effect notwithstanding anything in any other law or any custom of usage or in any contract expressed or implied inconsistent with the provisions of this Act. For our present purpose Chapter II of the said Act containing Sections 4 to 14 is not material. For our present purpose Chapter II of the said Act containing Sections 4 to 14 is not material. Chapter IIA deal with the restriction on alienation of Land by Scheduled Tribes and it is also not necessary for my present purpose to refer to the said chapter. Certain provisions of Chapter 11B may, however, are relevant. Section 14L is as follows :- "14L. No raiyat to hold land in excess of the ceiling area. On and from the commencement of the provisions of this Chapter, no raiyat shall be entitled to own, in the aggregate, any land in excess of the ceiling area applicable to him under Section 14M. Section 14M deals with the Ceiling area and is as follows :- "14M. Ceiling area.-(l) The ceiling area shall be, (a) in the case of a raiya t, who is an adult unmarried person, 2.50 standard hectare, : (b) in the case of a raiyat, who is the sole surviving member of a family, 2.50 standard hectares: (c) in the case of a raiyat having a family consisting of two or more, but not more than five members, 5.00 standard hectares; (d) in the case of a raiyat having a family consisting of more than five members, 5.00 standared hectares, plus 0.50 standard hectare for each member in excess of five, so, however, that the aggregate of the ceiling area for such raiyat shall not, in any case, exceed 7.00 standard hectares; (e) in the case of any other raiyat, 7.00 standard hectares. (2) Notwithstanding anything contained in sub-section (1), where, in the family of a raiyat, there are more raiyats than one, the ceiling area for the raiyat, together with the ceiling area of all the other raiyats in the family shall not, in any case, exceed,- (a) where the number, of members of such family does not exceed five, 5.00 stan4ard hectares; (b) where such number exceeds five, 5.00 standard hectares, plus 0.50 standard hectare for each member in excess of five, so, however, that the aggregate of the ceiling area shall not, in any case, exceed 7.00 standard hectares. (3) For the purposes of sub-section (2), all the lands owned individually by the members of a family or jointly by some or all the members of such family shall be deemed to be owned by the raiyats in the family. (3) For the purposes of sub-section (2), all the lands owned individually by the members of a family or jointly by some or all the members of such family shall be deemed to be owned by the raiyats in the family. (4) in determining the extent of land owned by the raiyats in a family or the sole surviving member of a family or an adult unmarried person, the share of such raiyat or raiyats such sale surviving member, or such adult unmarried person as the case may be, in the lands owned by a co-operative society, company, co-operative farming society, Hindu undivided family or a firm shall be taken into account. Explanation.- For the purposes of this sub-section the share of a raiyat in a family or the sole surviving member of a family or an adult unmarried person in the lands owned by a co-operative society or a joint family shall be deemed to be the extent of land which would be allotted to such raiyat or person had such lands been: divided or partitioned, as the case may be. (5) The lands owned by a trust or endowment other than of a public nature, shall be deemed to, be lands owned by the beneficiaries under the trust or endowment and each such beneficiary shall be deemed to be a raiyat under this Act to the extent of the share of his beneficial interest in the said trust or endowment. Section 148 provides for vesting of land in excess of ceiling area and is as follows :- "148. Vesting of land in excess of ceiling area.-(1) On the commencement of the provisions of this Chapter, any land owned by a raiyat in excess of the ceiling area applicable to him shall vest in the State free from all incumbrances. (2) Where any land vested in the State under sub-section (1) is being cultivated by a bargadar, the right of cultivation of such bargadar in relation to any such vested land which, including any other land owned or cultivated by him is in excess of 1.00 hectare, shall, on the commencement of the provisions of this Chapter, stand terminated. (3) Every bargadar shall, in relation to the land which he is authorised by sub-section (2) to retain under his cultivation, become, on and from the date of commencement of the provisions of this Chapter, a raiyat." 24. (3) Every bargadar shall, in relation to the land which he is authorised by sub-section (2) to retain under his cultivation, become, on and from the date of commencement of the provisions of this Chapter, a raiyat." 24. Chapter III however is relevant for my present purpose and it would be necessary to refer to Section 15A. which is as follows :- "15A. Continuation of right of cultivation on bargadar's death.- (1) Notwithstanding anything contained in any law for the time being in force or in any contract to the contrary, where a bargadar, cultivating any land, dies at a time when cultivation of such land by the bargadar was continuing, the cultivation of such land may be continued by the lawful heir of the bargadar or where there are more than one lawful heir, by such lawful heirs of the bargadar as all the lawful heirs of the bargadar may determine within the prescribed period : Provided that where the lawful heirs of the bargadar omit or fail to make a determination as required by this sub-section, the officer or authority appointed under sub-section (1) of section 18 may nominate one of the lawful heirs of the bargadar, who is in a position to cultivate the land personally, to continue the cultivation thereof. (2) The lawful heir of the bargadar who is determined or nominated for the cultivation of the land shall cultivate the land subject to such terms and conditions as may be prescribed. (3) Where- (a) no lawful heir of the bargadar is in a position to cultivate the land personally or (b) the lawful heirs of the bargadar fail to determine, within the prescribed period, the heir by whom the cultivation of the land will be continued and the officer or authority appointed under sub-section (1) of Section 18 also omits or fails to nominate, within the prescribed period, any lawful heir of the deceased bargadar for the continuation of the cultivation of the land, or (c) the person determined or nominated under sub-section (1) omits or fails to take any step., within the prescribed period, for the continuation of the cultivation of the land, cultivation of the land may - be continued by such person whether an heir of the deceased bargadar or not, as may be nominated by the person whose land was cultivated by the deceased bargadar." 25. Sections 16 & 17 are also important. The said sections provide as follows :- "16. Share of produce payable by a bargadar (1) The produce of any land cultivated by a bargadar shall be divided as between the bargadar and 'he person whose land he cultivates- (a) in the proportion of 50 : 50 in a case where plough, cattle, manure and seeds necessary for cultivation are supplied by the person owning the land, (b) in the porportion of (75 : 25), in all other cases, (2) The bargadar shall tender within the prescribed period, to the person whose land is cultivates, the share of the produce due to such person. (3) Where any share of produce tendered under sub-section (2) is accepted by the person whose land is cultivated by the bargadar, each party shall give to the other a receipt, in such form as may be prescribed, for the quantity of the produce received by him. (4) If the person whose land is cultivated by the bargadar refuses to accept the share of the produce tendered to him by the bargadar, or to give a receipt therefor, the bargadar may deposit, within the prescribed period, such share of the produce with such officer or authority as may be prescribed and such deposit shall discharge the bargadar from his obligation to deliver the share of the produce to the person whose land he cultivates; Provided that where the quantity of the produce deposited by the bargadar is less than the quantity of the produce due to the person whose land he cultivates, the obligation of the bargadar with regard to the delivery of the deficiency in relation to tile produce shall continue. (5) Where a deposit referred to in sub-section (4) has been made the prescribed officer or authority shall- (a) give to the bargadar a receipt in such form as may be prescribed stating therein the quantity of the produce deposited by the bargadar and the particulars of the person for whom the produce has been deposited; and (b) give intimation of such deposit, in such form and in such manner as may be prescribed, to the person for whom the produce has been deposited. (6) Where any produce is deposited under sub-section (4) and the person for whom the produce has been deposited does not take delivery of such produce witl1in fifteen days from the date of service on him of the intimation of such deposit, the officer or authority referred to in sub-section (4) may sell such produce and deposit the proceeds of such sale, after deducting therefrom the cost of conducting the sale, in the treasury, in revenue deposit, to the credit of the person for whom the produce has been deposited and give intimation of such deposit to such person, in such form and in such manner as may be prescribed. (7) The bargadar shall store or thrash the produce- (a) at such place as may be agreed upon between him and the person whose land he cultivates, or (b) where there is disagreement between them at such place as may be fixed by him after giving notice, in writing, served in that prescribed manner, to the person whose land he cultivates: Provided that the person whose land is cultivated-by the bargadar may at any time during the storage or thrashing of the produce, enter the place where the produce has been stored or is being thrashed for the purpose of inspecting the storage or thrashing, as the case may be, of the produce. 26. Section 17 deals with the termination of cultivation by bargadar and is as follows :- "17. 26. Section 17 deals with the termination of cultivation by bargadar and is as follows :- "17. Termination of cultivation by bargadar (1) No person shall be entitled to terminate cultivation of his land by a bargadar except in execution of an order, made by such officer or authority as the state Government may appoint, on one or more of the following grounds: (a) that the bargadar has without any reasonable cause failed to cultivate the land or has used it for any purpose other than agriculture; (b) that the land is not cultivated by the bargadar personally; (c) that the bargadar has failed to tender or deposit to the full extent the share of the produce as required by sub-section (2), or subsection (4), as the case may be, of Section 16 : Provided that no order for the termination of cultivation, made on the ground specified in this clause, shall be given effect to if the bargadar delivers to the person, whose land he cultivates, this share of the produce due to such person, or pays to him the market price thereof, with in such time and in such instalments as the officer or authority making the order may, having regard to all the circumstances of the case, specify in this behalf. (d) that the person owning the land requires it bonafide for bringing it under personal cultivation; Provided that the person owning the land shall not be entitled to terminate cultivation by a bargadar of only so much of land as, together with any other land in the personal cultivation of such person does not exceed 3.00 hectares : Provided further that 8uch person shall not be entitled to so terminate cultivation by a bargadar as to reduce the aggregate area of the land cultivated by the bargadar to less than 1.00 hectare. Explanation. - In determining the areas specified in the foregoing provisos no transfer of land made after the commencement of the West Bengal Land Reforms (Amendment) Act, 1970, shall be taken into account. Explanation.- For purpose of clause (b), a bargadar who cultivates the land with the help of members of his family shall be deemed to cultivate it personally. Explanation. - In determining the areas specified in the foregoing provisos no transfer of land made after the commencement of the West Bengal Land Reforms (Amendment) Act, 1970, shall be taken into account. Explanation.- For purpose of clause (b), a bargadar who cultivates the land with the help of members of his family shall be deemed to cultivate it personally. (2) If a person fails to bring under personal cultivation any land the cultivation of which by a bargadar has been terminated by him under clause (d) of sub-section (1) or allows such land to be cultivated by some other bargadar within two years of the date of such termination, the prescribed authority shall sell it, on such terms' and conditions as may be prescribed regarding the payment of the price, to the bargadar who was evicted under clause (d) of sub-section (1), and if such bargadar is unwilling to take the land at the market value or for any other reason, the land may be sold to other persons and the surplus sale-proceeds, if any, after deducting the expenses of the sale, shall be paid to such person. (3) The provisions of section 8 shall not apply to any land purchased by a bargadar under sub-section (2) of this section. (4) No bargadar shall be entitled to cultivate more than 6.00 hectares of land. In computing this area any land owned by the bargadar as well as the land cultivated by him as a bargadar shall be taken into account. (5) If a bargadar cultivates land in excess of (6.00 hectares) the share of the produce due to him as a bargadar in respect of the land in excess of 6.00 hectares shall be forfeited to the State Government by order made in this behalf by a Revenue Officer. (6) Where any land cultivated by a bargadar is in excess of the limit specified in sub-section (4), the person whose land is cultivated by such bargadar shall, if the excess land ill within the provisions of Chapter II-B, have the land cultivated by any person referred to in Section 49 who is willing to cultivate the said land as a bargadar. Explanation.- For the purposes of clauses (d) of sub-section (1) and sub-section (2), "personal cultivation "shall not include cultivation by servants or labourers on wages payable in cash or kind not being as a share of the produce or both. 27. It is now necessary to refer to the relevant provisions of section 18 of the said Act. It is important to refer to the said provision because as I have mentioned before one of the contentions that has urged in these applications is that for the determination of the status of a Bargadar the provisions of Chapter III of the said Act would apply and not Chapter VII. The relevant provisions of section 18 are as follows: - "18. Jurisdiction to decide certain disputes. (1) Every dispute between a bargadar and the person whose land he cultivates in respect of any of the following matters, namely – (a) division or delivery of the produce; (aa) recovery of produce under Section 16A; (b) termination of cultivation by the bargadar; Provided that no application for decision of any dispute in respect of delivery of the produce referred to in clause (a) shall be entertained unless such application is presented to the officer or authority within two years from the date on which the delivery of the produce falls due. (2) If in deciding any dispute referred to in sub-section (1) (or otherwise) any question arises as to whether a person is a bargadar or not and to whom the share of the produce is deliverable, such question shall be determined by the officer or authority mentioned in sub-section (1). 28. It is not necessary to refer to sub-section 2A, 2B and also to the (3), (3A), sub-section (4), sub-section (5) and sub-section (6) (or my present purpose. These mainly deal with the monetary Compensation that may be paid in certain circumstances. Section 18A deal with the continuance in office of officers and authorities appointed under Sections 17 and 18 until successor commences to function. I do not think for my present purpose it is necessary to refer to the said sections. The section provides for appeals. Section 19A deals with the penalty and the same is also not relevant for my present purpose. Section 19B is of some relevance and is as follows :- "19B. I do not think for my present purpose it is necessary to refer to the said sections. The section provides for appeals. Section 19A deals with the penalty and the same is also not relevant for my present purpose. Section 19B is of some relevance and is as follows :- "19B. Restoration of land to bargadar.- (1) If a person owning any land terminates or causes to be terminated the cultivation of the land by a bargadar in contravention of the provisions of this Act, then any officer specially empowered by the State Government in this behalf, shall, on an application by such bargadar, by order direct - (a) in a case where such land has not been cultivated by the owner or by any person on his behalf other than a bargadar, that the land be immediately restored to the applicant and further that forty per cent of any produce of the land shall be forfeited to the State Government and the remaining sixty per cent of such crops shall be retained by the applicant. (b) in a case where such land has been cultivated by a new bargadar engaged by the owner, that the land be restored at the end of the cultivation season to the applicant and further that the new bargadar shall retain fifty per cent of the crops harvested before restoration and make over-the remaining fifty pet cent of such crops to the applicant. (2) An appeal shall lie to the Collector against any order made under sub-section (1) (3) For purposes of sub-section (2), Collector shall include an Additional Collector, a Deputy Collector, a Sub-Collector, a Sub-Deputy Collector, or any officer specially, empowered by the State Government in this behalf." 29. Section 20 deals with procedure and execution and Section 20A deals with setting aside of order for termination of cultivation by Bargadars and is to the following effect:- "20A. Setting aside of order for termination of cultivation by Bargadars.- Notwithstanding anything contained in any law for the time being in force, where before the commencement of the West Bengal Land Reforms. Setting aside of order for termination of cultivation by Bargadars.- Notwithstanding anything contained in any law for the time being in force, where before the commencement of the West Bengal Land Reforms. (Amendment) Act, 1969, an order for the termination of cultivation of any land by a bargadar had been made under clause (b) of sub-section (1) of Section 18 but such order has not been given effect to (whether by reason of the operation of any law or otherwise), before the commencement of the West Bengal land Reforms (Amendment) Act, 1970, then, such order shall on such commencements, stand vacated and the officer or, authority by whom such order was made shall, after giving notice to the patties concerned, decide the dispute in accordance with the provisions of Section 17 as amended by the West Bengal Land Reforms (Amendment) Act, 1972." 30. Section 20B is as follows :- "20B. Surrender or abandonment by bargadar, (1) If a bargadar- (a) surrenders his right to cultivate in relation to any land cultivated by him as a bargadar, or (b) voluntarily abandons cultivation of such land, the person, whose land was cultivated by the bargadar, may give information in writing of such surrender or abandonment to the officer or authority appointed under sub-section (1) of Section 18, having jurisdiction in the area in which such land is situated. (2) On receipt of such information, such officer or authority shall issue a notice, in the prescribed form, to the bargadar, and after giving the bargadar and the person whose land was cultivated by the bargadar, an opportunity of being heard and making such-inquiries as he or it may deem necessary determine whether the bargadar voluntarily surrendered or abandoned his right of cultivation in relation to such land. (3) If such officer or authority determines that the bargadar had not voluntarily surrendered or abandoned the cultivation of the land which was being cultivated by him as such and that he had been comepelled by force or otherwise to surrender or abandon the cultivation of such land, such officer or authority shall restore the bargadar to the cultivation of the land, or where the bargadar is not available or is not willing to be restored to the cultivation of such land the person whose land was so cultivated shall not resume personal cultivation of the land but we may, with the permission of such officer or authority get the land cultivated by any person, referred to in section 49, who is willing to cultivate the land as a bargadar. (4) If such officer or authority determines that the bargadar had voluntarily surrendered or abandoned the cultivation of the land which was cultivated by him as such, the person whose land was being so cultivated, shall not resume personal cultivation of such land but he may, with the permission of such officer or authority, have the land cultivated by any person; referred to in Section 49, who is willing to cultivate the land as a bargadar. (5) Any contravention of the provisions of sub-section (3) or subsection (4) shall be an offence punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 31. Section 21 bars the jurisdiction of the Court and is to the following effect :- "21. Bar of jurisdiction.- (1) No order of other proceedings whatsoever under this Chapter shall be questioned in any civil court and no civil court shall entertain any suit or proceeding in respect of any matter mentioned in Sections 17 and 18, (2) On the appointment of officers or authorities under this Chapter all proceedings pending before any Bhagchash Conciliation Board established under the West Bengal Bargadars Act, 1950, shall stand transferred to the officer or authority having jurisdiction over the area in which the land, to which the proceedings relate, is situated. (3) If any question as to whether a person is or is not a bargadar arises in the course of any proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of Section 18 for decision." 32. The most important provision which calls for consideration in the instant case is the provision of Section 21B inserted by West Bengal Land Reforms (Amendment) Act, 1977. Section 21 B is to the following effect :- "21B. Person cultivating land of another person to be presumed to be a bargadar in certain cases. A person lawfully cultivating any land belonging to another person shall be presumed to be a bargadar in respect of such land if such person is not a member of the family of the other person whose land he cultivates and the burden of proving that such person is not a bargadar or that the land is in his personal cultivation shall, notwithstanding anything to the contrary contained in any other law for the time being in force, lie on the person who alleges that the person cultivating the land is not a Bargadar in respect of such land." It may incidentally be mentioned that the explanation for the purpose of clause (d) of sub-section (1) and sub-section (2) under clause 17 was also introduced by the said West Bengal Land Reforms (Amendment) Act, 1977, Chapters IV, V & VI are not relevant for my present purpose. The next most important chapter which requires consideration in this case is Chapter VII which is the chapter dealing with the maintenance and revision of the record of rights. Section 50 which deals with the maintenance of the record of rights is as follows :- "50. Maintenance of the record of rights. - The Revenue Officer especially empowered by the State Government in this behalf shall maintain up-to-date in the prescribed manner the village record-of-rights by incorporating therein the changes on account of- (a) mutation of names' as a result of transfer or inheritance; (b) partition, exchange, or consolidation of lands comprised in holdings, or establishment of Co-operative Farming Societies; (c) new settlement of lands or of holdings; (d) variation of revenue; (e) alteration in the mode of cultivation, for example by a bargadar; (f) such other causes as necessitate a change in the record-of-rights." 33. It may not be inappropriate to bear in mind that by notification no. 20478 L. Ref. dated 21.8.75 the Governor has appointed all Junior Land Reform Officers in the State of West Bengal to discharge within their respective jurisdiction the functions of the Revenue Officer under lection 50 of the Act. In exercise of the power conferred by section 50 the Governor has been further pleased to specially empower the said Revenue Officers for the purposes of the said section. Section 51 deals with the revision or preparation of record-of-rights and is to the following effect :- "51. Revision or preparation of the record-of-rights.- (1) The State Government may, in any case if it so thinks fit, make an order directing that record-of-rights in respect of any district or part of a district be revised or prepared by a Revenue Officer in accordance with the provisions of his Chapter and such rules as may be made by the State Government in this behalf. (2) A notification in the Official Gazette of an order under subsection (1) shall be conclusive evidence that the order has been duly made. (3) When an order is made under sub-section (1), the Revenue Officer shall record in the record-of-rights to be revised as prepared in pursuance of such order, such particulars as may be prescribed. (4) Notwithstanding anything contained in the West Bengal Non-Agricultural Tenancy Act, 1949, where any non-agricultural land is comprised in the holding of a raiyat or where any agricultural land is comprised in any non-agricultural tenancy, the Revenue Officer-shall- (a) divide the holding or tenancy, as the case may be, so as to constitute separate holdings or tenancies for the agricultural land and the non-agricultural land; (b) apportion the existing revenue or rent, as the case may be, between the holdings and the tenancies to constituted, on the basis of area; and (c) record the non-agricultural tenant bolding any agricultural land, whether under a superior tenant or not, as a raiyat holding directly under the State. (5) There shall be a separate khatian for each raiyat and the khatian shall include all lands held by such raiyat in one mauza. Section 51A deals with the draft and final publication of the record-of-rights and is to the following effect :- "51A. Draft and final publication of the record-of-rights. (5) There shall be a separate khatian for each raiyat and the khatian shall include all lands held by such raiyat in one mauza. Section 51A deals with the draft and final publication of the record-of-rights and is to the following effect :- "51A. Draft and final publication of the record-of-rights. (1) When a record-or-rights bas been revised or prepared, the Revenue Officer shall publish a draft of the record so revised or perpared in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made during such period to any entry therein or to any omission therefrom. (2) When such objections have been considered and disposed of according to such rules as the State Government may make in his behalf, the Revenue Officer shall finally prepare 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 end official designation. (3) Separate publication of different parts of draft or final records may be made under sub-section (1) or sub-section (2) for different local areas. (4) An officer specially empowered by the State Government may, on application within one year from the date of final publication of the record-of-rights under sub-section (2), revise an entry in the record finally published in accordance with the provisions of sub-section (2) after giving the persons interested an opportunity of being heard and recording reasons therefor. (5) Any person aggrieved by an order passed in revision under sub-section (4) may, within such period and on payment of such court-fees as may be prescribed, appeal in the prescribed manner to (the Additional District Magistrate of the district in which land is situated). Provided that every appeal pending before a Special Judge appointed under Section 51D at the commencement of Section 19 of the West Bengal Land Reforms (Amendment) Act, 1971, shall, on such commencement, stand transferred to, and be disposed of by, the Additional District Magistrate and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972. (6) The certificate of final publication referred to in sub-section (2), or in the absence of such certificate, a certificate signed by the Collector of any district in which the area to which the record-of-rights relates is wholly or partly situate, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the date thereof. (7) The State Government may, by notification in the Official Gazette, declare with regard to any area specified in the notification that the record of rights for every village included in such area has been finally published and such notification shall be conclusive proof of such publication. (8) In any suit or other proceeding in which a record-of-rights revised or prepared and finally published under this Chapter, or a duly certified copy of the record or an extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied. (9) Every entry in the record-of-rights finally published under sub-section (2) including an entry revised under sub-section (4) or corrected under Section 51B shall, subject to any modification by an order on appeal under sub-section (5), be presumed to be correct." Section 51 B provides that any Revenue Officer specially empowered by the State Government in this behalf may of his motion at any time or on application within one year from the date of the certificate of final publication of the record-of-rights under sub-section (2) of Section 51 A, correct any entry in such record of rights which he is satisfied has been made owing to a bona fide mistake. The proviso is not important for my present purpose. Section 51C bars the jurisdiction of Civil Court in respect of certain matters. It is also not very relevant for my present purpose to set out the provisions of the said section. Chapters VIII & IX is not important except Section 60 which deals with the power to make rules. The said section is as follows :- "60. Power to make rules.- (1) The State Government may, after previous publication, make rules for carrying out the purposes of this Act. (2) The rules so made shall have effect as if they were incorporated in this Act." 34. In this connection it is also necessary to refer to Section 59 of the West Bengal Estates Acquisition Act. Power to make rules.- (1) The State Government may, after previous publication, make rules for carrying out the purposes of this Act. (2) The rules so made shall have effect as if they were incorporated in this Act." 34. In this connection it is also necessary to refer to Section 59 of the West Bengal Estates Acquisition Act. 1953 because some argument was made on this aspect. The said section of the West Bengal Estates Acquisition Act, 1953 reads as follows:- "59. (1) The State Government may, after previous publication make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice in the generality of the foregoing power, such rules may provide for all or any of the matters which, under any provision of this Act, are required to be prescribed or to be provided for by rules." 35. Rules have been framed under Section 60, for example, West Bengal Land Reforms (Bargadars) Rules, 1956. It is pot necessary for my present purpose to refer to the said rules. It is also not necessary to refer to the West Bengal Land Reforms (Prescribed Authority) Rules, 1964 nor to the West Bengal Land Reforms (Transfer of Holding) Rules, 1965. But some provisions of the West Bengal Land. Reforms Rules, 1965 hereinafter referred to as the said rules will have to be referred in view of the contentions raised in this case. Section 21 of the rule before its amendment by the notification dated 19th of September, 1971 reads as follows :- "21. Manner M maintenance of record-of-rights.- Whenever change is required to be made in the record-of-rights on account of any of the causes mentioned in clauses (a) to (i) of section 50, the matter shall be brought to the notice of the Revenue Officer especially empowered by the State Government for maintaining up to date the village record-of-rights and all papers containing the original orders passed in mutation and other cases or authenticated copies of such orders shall be made available to him. On receipt of the original orders or authenticated copies thereof the Revenue Officer shall make necessary corrections in the record-of-rights and shall subscribe his dated signature to such corrections noting the authority under which the corrections have been made. On receipt of the original orders or authenticated copies thereof the Revenue Officer shall make necessary corrections in the record-of-rights and shall subscribe his dated signature to such corrections noting the authority under which the corrections have been made. After the corrections have been made, the Revenue Officer shall inform the parties concerned and, if necessary, the Settlement Department of the changes made in the record-of-rights. 36. By the notification dated 19th of September, 1978 rule 21 was amended as follows : "Re-number rule 21 of the said rules as sub-rule (1) of that rule and after sub-rule (1) as so renumbered, add the following sub-rule :- "(2) Notwithstanding the provisions of sub rule (1), the Revenue Officer may, on his own motion, incorporate in the village, record-of-rights any change on account of clause (e) of section 50 after making such inquiry including on-the-spot inquiry and inspection as he may deem fit, and after giving the parties interested an opportunity of being heard. After the change has been incorporated, the Revenue Officer shall inform the parties concerned and, if necessary, the Settlement Department of such change in the record-of-rights." 37. Rule 22 deals with the procedure for revising or preparing record-of-rights, Rule 23 deals with the particulars to be recorded and Rule 24 deals with the publication of the draft record. 38. Schedule A of the said rules deal with the procedure for revision or preparation of record-of-rights and prior to the amendment by the notification dated 9th of September, 1978 was to the following effect :- "1. 38. Schedule A of the said rules deal with the procedure for revision or preparation of record-of-rights and prior to the amendment by the notification dated 9th of September, 1978 was to the following effect :- "1. Procedure for revision or preparation of record-of-rights.- When an order has been made under section 51 directing that a record-of-rights be revised or prepared by a Revenue Officer in respect of the land of any district or part thereof the record-of-rights shall be revised or prepared by the following processes, namely:- (i) Traverse survey; (ii) Cadastral survey; (iii) Preliminary record writing (or Khanapuri) ; (iv) Local explanation (or Bujharat) ; (v) Attestation; (vi) Publication of the draft record-of-rights ; (vii) Disposal of objections; (viii) Preparation and publication of the final record-of-rights : Provided that any of the steps referred to in items (i) to (v) may be omitted or amalgamated with another with the previous permission of the State Government: Provided further that a Revenue Officer who has been appointed with the additional designation of "Settlement Officer" may, at any time before final publication of the record-of-rights, direct that any portion of the proceedings in respect of the revision or preparation of the record-of-rights of any direct or part thereof, shall be cancelled and that such proceedings shall be carried out de novo from such stage as he may direct. 2. Traverse survey.- The cadastral survey of any district or part of a district in respect of which an order under sub-section (1) of section 51 for revision or preparation of record-of-rights has been made shall be based upon a traverse survey, and such traverse survey, shall ordinarily be carried out by theodolite observations. 3. Cadastral Survey.- (1) in the course of proceedings under sub-section (1) of section 51 a large scale map showing roads, rivers, railways and other physical features of the country, as well as homesteads and other fields, shall be prepared for each village as adopted in the general land revenue survey which has been made in the State of West Bengal or in any survey made by the State Government by notification in the Official Gazette as defining villages in any specified area :- Provided that for any specified area, whether previously notified as a village or not. the State Government may direct that the preparation of a map as aforesaid be dispensed with or that such map be prepared either by adopting any map or plan previously prepared by the Government or by any local authority or by any private party after such modification, if any, as may be considered necessary with a view to representing the existing state of affairs, for the purpose of the revision or preparation of the record-of-rights under the Act: (2) When the area contained within the external boundaries of the village maps of the previous survey contemplated by subparagraph (1) is unsuitable as the unit of survey and record, the Settlement Officer shall, ascertaining as far as possible, the opinions of the raiyats concerned, submit his proposals for the determination of the area to be adopted as the unit of record and survey to the Board of Revenue through the controlling officers to whom he is subordinate. That unit shall, if sanctioned by the Board of Revenue, be adopted in framing the record-of-rights and shall be deemed to constitute a village when a notification adopting it as such has been issued in the official Gazette by the State Government. The Board of Revenue shall submit a copy of its order in each to the State Government for the issue of the notification. 4. Khanapuri.- At this and the two following stages, the draft record-of-rights shall be revised or prepared. The draft record shall consist of statements of rights which are hereinafter styled the Khatians. There shall ordinarily be a separate khatian for each person interested or each group of persons jointly interested, in the land and each khatian shall show the rights and liabilities of each person or group of persons according to the particulars referred to in rule 23. At this stage all such particulars shall be entered in the draft record-of-rights. At this stage there shall also be prepared a field index or khasra arranged according to the serial numbers of the fields in the villages. This field index shall not form part of the draft record-of-rights. 5. Bujharat. - When the areas of the fields have been extracted and entered in the draft record-of-rights a copy of each khatian shall be made over by a Revenue Officer to the person or body of persons in whose name or names the khatian has been opened or to their representatives. 5. Bujharat. - When the areas of the fields have been extracted and entered in the draft record-of-rights a copy of each khatian shall be made over by a Revenue Officer to the person or body of persons in whose name or names the khatian has been opened or to their representatives. Each khatian shall then be examined on the ground, with reference to the village map, by a Revenue Officer or such other person as may be authorised by him in this behalf and explained to the person or persons concerned or their representatives, if present. In this process the Revenue Officer or the authorised person shall make such corrections as are necessary in the map, in the draft records, and in the copies of the khatians which have been distributed, if they can be produced for this purpose. At this stage entries of the revenue and cesses which are payable according to the statement of the raiyat shall be made in the draft khatians of the raiyats and in such copies as are produced; but the other particulars which are omitted at the stage of khanapuri record writing shall be deferred until the stage of attestation. 6. Attestation.- (1) The attestation of each village shall be taken up at a convenient place in or near the village as far as possible. Before attestation begins the Revenue Officer may cause a plot to plot enquiry and survey where necessary, for incorporating changes in maps previously prepared and for making a preliminary record of the names of possessors of each plot in operation where stages referred to in items (i) to (iv) of paragraph I have been omitted. A proclamation shall also be published before attestation begins in the village giving due notice to the raiyats and calling upon them to appear before the Revenue Officer on the date fixed, with relevant documents in support of their title and possession. The proclamation shall also specify that all persons who have derived or lost interest in any khatian should invariably be present at the time of attestation and shall all changes which occurred in any holding since the last preparation of the finally published record-of-rights due to- (a) inheritance, succession, transfer or otherwise, (b) amalgamations or sub-division of holdings; (c) new settlement; or (d) any other reasons. all shall be brought to the notice of the Revenue Officer. all shall be brought to the notice of the Revenue Officer. As each person appears before him the Revenue Officer shall examine his khatian, read out all the entries, make corrections where required, and see that the khatian is complete in all particulars. Disputes regarding the ownership of land, or the ownership of any interest in land, shall be decided by the Revenue Officer in a summary manner and on the basis of present possession. In the khatian of each raiyat or group of raiyats he shall enter with his own hand, the special conditions and incidents (if any) of the tenancy and the revenue lawfully payable to the State Government. Where revision is being made of previously prepared record-of-rights and finally published under any law for the time being in force, no fresh entry regarding these details is necessary, if they are found to be correct on the basis of present and actual possession or possession during the period stated above. In each of the khatians attested the ceases lawfully payable to the State Government shall be recorded. The Revenue Officer shall then sign and date the office copy or the khatian. When the Revenue Officer has completed the attestation of all the khatians of a village he shall draw up a formal proceeding to that effect. (2) If during the enquiry and survey referred to in sub-paragraph (1) it appears to the Revenue Officer that the area contained within the external boundaries of the village maps of the previous survey is unsuitable as the unit of survey and record, he shall, after ascertaining as far as possible the opinion of the raiyat concerned, submit his proposals for the determination of the area to be adopted as the unit of record and survey to the Board of Revenue through the Controlling Officers to whom he is sub-ordinate. Thereafter the procedure laid down in sub-paragraph (2) of paragraph 3 shall apply mutatis mutandis. In causing the aforesaid enquiry and survey, the Revenue Officer may also incorporate in the last settlement maps the plans prepared by other departments of Government as well as by private parties after such check as he considers necessary with a view to represent the existing state of affairs. 7. Allotment of separate plot number. In causing the aforesaid enquiry and survey, the Revenue Officer may also incorporate in the last settlement maps the plans prepared by other departments of Government as well as by private parties after such check as he considers necessary with a view to represent the existing state of affairs. 7. Allotment of separate plot number. Where the land has been partitioned, the Revenue Officer may assign such separate plot numbers as may be needed for the purpose." Rule 8 of Schedule A deals with the draft publication, disposal of objections and final publication of the record-of-rights. 7. Allotment of separate plot number. Where the land has been partitioned, the Revenue Officer may assign such separate plot numbers as may be needed for the purpose." Rule 8 of Schedule A deals with the draft publication, disposal of objections and final publication of the record-of-rights. It is not necessary for my present purpose to set out the said rule but it is important to bear in mind that by the notification dated 9th of September, 1978 the said rules in Schedule A have been amended and the said amendments are as follows :- (1) in clause 1, for the second proviso, substitute the following proviso : "Provided further that a Revenue Officer who has been appointed with the additional designation of Settlement Officer may, either on his own motion or on receipt of applications from others at any time before final publication of the record-of rights, direct- (i) that any portion of the proceedings in respect of toe revision or preparation of the record-of-rights of any district or part thereof shall be cancelled and that such proceedings shall be carried out de novo from such stage as he may direct: (ii) that names of bargadars shall be incorporated in the record-of-rights by the Revenue Officer subordinate to him after holding such enquiry and after giving the persons claiming as bargadars and the owners of the land concerned such opportunity of being heard as the Revenue Officer may deem fit; (iii) that names of occupiers of land who have been given the status of a raiyat or a non-agricultural tenant as the case may be, under the West Bengal Acquisition and Settlement of Homestead Land Act, 1969 (West Bengal Act XV of 1969) or the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 (West Bengal Act XLVII of 1975) shall be recorded as such by the Revenue Officer subordinate to him by opening a khatian for each of them; or (iv) that names of transferors to whom land has been restored under the West Bengal Restoration of Alienated Land Act, 1973 (West Bengal Act XXIII of 1973) shall be recorded in the record-of-rights by the Revenue Officer subordinate to him". (2) to clause 5, add the following Explanations; "Explanation I: If the name of bargadar or an occupier of 'land or a transferor, referred to in the second proviso to clause I, is recorded at a stage subsequent to Bujharat, a copy of each khatian shall be made over by the Revenue Officer to the person in whose name the khatian has been opened or to his representative. Explanation II: In the case of a bargadar, the Revenue Officer may, pending issue of a copy of the khatian, give a certificate to the bargadar in such form as the State Government may prescribe." 39. Schedule B of the rules deal with the powers of officers making surveys and revising or preparing record-of-rights. It is not also necessary to refer in detail to the said rules. I may here mention that by an amendment introduced on 25th of September, 1978 Rule 2 of the West Bengal Land Reforms Rules have been amended as follows :- In the said Rules, after rule 2, insert the following rule : '2A. Determining of the area of locality for the purpose of subsection (8) of section 2. For the purpose of sub-section (8) of Section 2 of the Act, "Locality" shall include an area situated within a radius of eight kilometres measured from the north-west corner of the land owned by a person; Provided that if such land is beyond eight kilometres from the residence of such person or any member of his family but the area of the mauza in which such land is situated is within eight kilometres from such residence, such residence shall be deemed to be within such locality" : 40. One of the main challenge in these applications is to the procedure envisaged in the circular or a communication dated 5th of July, 1978. On behalf of the petitioners it has been strenuously argued that the said circular or communication was an executive direction and recording of Bargadars according to the petitioners have normally been done in compliance with the said circular and in violation of the provisions of relevant statutory provisions and rules. It is, thereof, necessary to examine the circular and see whether the circular is in violation. The said circular has therefore to be set out : - GOVERNMENT OF WEST BENGAL. Board of Revenue West Bengal. Section 'A', G. E. Branch. Memo. It is, thereof, necessary to examine the circular and see whether the circular is in violation. The said circular has therefore to be set out : - GOVERNMENT OF WEST BENGAL. Board of Revenue West Bengal. Section 'A', G. E. Branch. Memo. No. 12304(27) G. E. Dated, Calcutta, the 5th July, 1978. To 1. The Director of Land Records and Surveys, West Bengal. 2. The Additional District Magistrate (Land Reforms). 3. The Additional Deputy Commissioner (Land Reforms). 4. The Settlement Officer. Sub :-'OPERATION BARGA' Decision taken in the workshop held on June 23rd and 24th, 1978. 1. The entire work of recording of bargadars under an intensive drive as envisaged in the decision of the workshop may be broadly divided into the following 5 distinct operations; (1) Identification of the priority pockets with large concentration of bargadars. (2) Formation of squads. (3) Meetings with the bargadars. (4) Reconnaisance and field verification. (5) Actual recording. 1. 2. Identification of priority pockets will have to be made in consultation with the local peasants organisations. The Settlement records (Records as finally published under the provisions of the E.A. Act or those prepared during the current settlement operation under the WBLR Act) may give an idea about the concentration of bargadars. The number of unrecorded bargadars may be assessed on the basis of information to be furnished by the peasants' organisations as also by the local officers. This item of work, namely, Identification of priority pocket is very important and unless efforts to record the bargadars are put in areas where there is real concentration of bargadars the entire exercise will be fruitless. The settlement officers and the ADMS (LR) will personally see that the "area of priority" has been correctly identified. 2. The squad of functionaries to be formed for the purpose will consist of Kanungos JLROS and requisite number of Amins. The Settlement Officer will spare the requisite number of Kanungos for the purpose. The local JLRO will have to be invariably associated with this Squad. The JLROS from other circles of the same district should also be included. Where there is large concentration of tribal bargadars, Kanungos of the Tribal Welfare Department should also be associated with the job. In selecting the Amins proper care should be taken to ensure that only those persons who have got considerable experience of field work are selected. The JLROS from other circles of the same district should also be included. Where there is large concentration of tribal bargadars, Kanungos of the Tribal Welfare Department should also be associated with the job. In selecting the Amins proper care should be taken to ensure that only those persons who have got considerable experience of field work are selected. The Squad for each priority area should be immediately formed. There is no objection to one Squad being formed for more than one priority area in close proximity provided the first area is quickly covered and the second one taken up almost simultaneously. The priority areas identified should be tagged with this Squad well ahead so that the Squad may plan their own movement and action according to the programme. The entire job of formation of this Squad and their movement to the different priority areas should be decided personally by the Settlement Officer and the ADM (LR) jointly so that there is no dislocation in the programme when the actual operation starts. 3. The basic purpose of holding meetings with the bargadars is to explain to them the objectives of the special drive of 'OPERATION BARGA' and to bring home to them the benefits that will be thrown open to them once they are brought into the Settlement record thereby to enable them to overcome the fear Psychosis. The value of the meeting should be as near the places of the residence of the bargadars as possible. During discussion with the bargadars the officials should try to talk to them in such a way that the bargadars take this exercise as a genuine attempt on the part of the Government to protect their rights and interests. The officials who will be required to organise such meetings should, therefore, be properly briefed. 4. The re-connaisance and field verification are intended to be operation very similar to the pre KB enquiry done in the Settlement Operations. The aim will be to assess firstly the incidents of bargadars in a particular target area. This also will assess the Field Officers an opportunity to ascertain the actual state of affairs in the field. The verifications is important in as much as the recording of the bargadars will be based primarily on this verification. Necessary note of such verification should be kept by the enquiring officials. This also will assess the Field Officers an opportunity to ascertain the actual state of affairs in the field. The verifications is important in as much as the recording of the bargadars will be based primarily on this verification. Necessary note of such verification should be kept by the enquiring officials. The informations received during the evening meeting regarding barga cultivation should be verified during the field enquiry and any additional information regarding barga cultivation received during such enquiry should also be noted for further follow up action including verification under section 21B of the LR Act, the presumption being in favour of bargadars. There are however cases of affluent farmers leading in the lands of poor raiyats for raising high yielding variety of crops. Such affluent farmers are not traditional bargadars and as such their names must not be recorded as bargadars. There are also may the cases of relatives of raiyats putting forward their claims for recording their names as bargadars with an ulterior motive of keeping the lands within the family circle in case of any future eventuality. In recording bargadars the relationships between the landowners and the claimants should be discreetly looked into. 5. When after enquiry as indicated above a person is found to be a bargadar, he should be recorded as such under section 50 of the Land Reforms Act in the usual manner in the areas where Revisional Settlement Operation has not yet been taken up. In the areas where, however, Revisional Settlement Work has already been taken up and is in different stages, the recording of bargadars will have to be done under section 51 Ibid. For this purpose, steps are being taken to amend the rules. 6. Immediate tasks are: (a) The Settlement Officers and, the ADM (LR) should immediately take up the work of identification of the priority areas. (b) Programme of work for the entire district should be chalked out. (c) Squads of functionaries should be formed immediately so that each Squad may prepare its own plan of fiction and movements. (d) Lists of priority areas along with programme of action should be framed by ADM (LR) and SO jointly and send copies to Board of Revenue and DLR & S. 7. (c) Squads of functionaries should be formed immediately so that each Squad may prepare its own plan of fiction and movements. (d) Lists of priority areas along with programme of action should be framed by ADM (LR) and SO jointly and send copies to Board of Revenue and DLR & S. 7. The total number of bargadars recorded through this process should be reflected in the standard progress return of SO (the Scheme will not apply to the District of Purulia and Islampur Sub-division). Sd/- J. R. Saha, Secretary, Board of Revenue, West Bengal. 41. On behalf of the petitioners it was contended that by virtue of this circulation the officers or persons who would be involved in tile work of recording would be required to gather informations behind the back of other interested or concerned parties. It was, further, argued that in paragraph 3 of the said circular in so far as it enjoins that the officials who would be required to organisd meeting for making bargadars or share croppers aware of their rights should be properly briefed. It was, further, emphasised that in paragraph 4 there was trace about verification and that verification had necessarily to be done behind the back of other interested parties. So far as paragraph 4 was concerned it was emphasised that so far as it directed that "affluent farmers" were not traditional bargadars even if though they were bargadars in accordance with law their claims should be rejected, was contrary to the provisions of law. It was, further emphasised that paragraph 5 of the said communication in so far as it directed that persons who had been found to be bargadarso they should be recorded as such, was contrary to the provisions of law. I do not think that I should detain myself much on the question of the circular of 5th of July, 1978 because learned Additional Advocate General submitted before me and I record his submission on his behalf as part of the Government's case that the circular dated the 5th July, 1978 is not an official direction by any statutory authority upon the subordinate revenue officers or concerned officers. It has no legal official or binding force. In my opinion this is also the effect of the ratio of the Division Bench decision in the case of (41) State of West Bengal v Kanailal Saha (1979) 1 CLJ page 104. It has no legal official or binding force. In my opinion this is also the effect of the ratio of the Division Bench decision in the case of (41) State of West Bengal v Kanailal Saha (1979) 1 CLJ page 104. Learned Additional Advocate General stressed that the said communication merely embodied certain decisions taken at work-shop held on 23rd of June and 24th of June, 1978, The said communication has no legal and official effect. I record this Government stand and I direct all concerned officers to remember this as such. I further direct and record accepting the submissions of learned Additional Advocate General that if the said communication dated 5th of July, 1978 contains any direction or communication on the recording of bargadars except in strict compliance with the relevant statutory provisions or the rules framed thereunder, then, the concerned revenue officers will not only be free but it will be their duty to ignore the communication dated 5th of July, 1978 and if recording of bargadars is done, in accordance with the circular of 5th of July, 1978, ignoring the relevant statutory provisions, then, the concerned officers would be acting illegally and would be guilty of violation of law. This, in my opinion, should be made clear as I shall indicate at the conclusion of my judgment to all concerned officers. I, however, do not see any objection to the revenue officers who are engaged in the task of recording of bargadars to attend evening meetings or to gather informations from their own sources but in their action of recording they must not and should not use any such informations gathered except after giving prior intimation to the other interested and concerned parties and giving them proper opportunities to contradict or controvert such informations gathered. 42. 42. Before I deal with the other contentions raised in this matter I must make it clear learned Additional Advocate General appearing on behalf of the State has produced before me a copy of the plan in respect of certain recording operations in the District of Hooghly, Thana Haripal, Mouza Krishnapur in order to submit that when certain particular lands in the khatian belonging to a owner is given to different bargadars for cultivation or when their names arc so recorded, then they are so recorded as indicated in the plan so that there is no dispute as to which portion is being cultivated by which bargadar. This point is important because one of the contentions urged on behalf of the petitioners was that in the procedure envisaged under section 50 and 51 of the West Bengal Land Reforms Act, 1955 and the amended Schedule A, there was no procedure or system indicated as to which particular portion of land was being cultivated or being recorded in the name of a particular bargadar and as such there would be difficulty in recovering the shares of the crops from the particular bargadars and also their taking steps in respect of that particular area. But learned Additional Advocate General indicated to me that this is the plan which indicated such subdivision on the recording was sufficiently distinctive in order to mark out a particular portion which is being cultivated by the bargadars and which is being so recorded under sections 50 and 51 of the West Bengal Land Reforms Act, 1955 read with amended Schedule A. Learned Additional Advocate General did assure this Court that such procedure is being followed and naturally it follows that if in recording such procedure is not followed such recording would be bad on the ground of vagueness. I will not set out the plan which he has given but I direct that a copy of that plan will be kept on record and will be treated as a part of the judgment and future recording of the bargadars the portion recorded in tile name of a particular bargadar should be demarcated in the manner indicated above. Learned Additional Advocate General also produced before me a copy of the form of objections by which objections are invited for recording of such bargadars. Learned Additional Advocate General also produced before me a copy of the form of objections by which objections are invited for recording of such bargadars. Learned Additional Advocate General states that though such form which he handed over to this Court was supposed to have been issued under Khanapuri Technical Rules, such forms are at present utilised for settlement of disputes in case of recording under Sections 50 and 51 of the West Bengal Land Reforms Act, 1955. It is also not necessary for me to set out in detail the said form but. I also direct that a copy of the said form be kept on record so that the same may be treated as part of the judgment. 43. As I have mentioned before one of the challenges to the amendment of Schedule A was the provision of granting certificates during the process of recording or before the final publication of the record-of-rights. In order to meet this challenge learned Additional Advocate General submitted before me that the certificates envisaged under the amended rules of Schedule A did not either create any title or right in favour of bargadars. I accept this submission advanced on behalf of the State by learned Additional Advocate General and in my opinion this is the correct position in law. Learned Additional Advocate General, however, further, contended that the certificates were granted only for the purpose of facilitating taking of loans by bargadars from the nationalised banks for the purpose of cultivation. Whether such certificates do facilitate granting of loans by the nationalised banks or whether it is a prudent policy for the banks to grant loans on such doubtful evidence of title is a matter for the Government and for the depositors of money in the banks to determine; I am not concerned with the wisdom or otherwise of such a course of action by the nationalised banks in these writ applications. But I am concerned with the question as to whether such certificates before the completion of the adjudication proceedings, adjudication in the sense of determination of the rights of the parties by giving to all concerned reasonable opportunities in accordance with the principles of natural justice and fair play do create such evidence which hamper or endanger the rights of cultivation or rights of possession of recorded owners or recorded bargadars. If it be the true position as canvassed in this Court on behalf of the State by learned Additional Advocate General and which submission I record as a submission advanced on behalf of the State that such certificates do not create any rights against landlords or recorded owners or recorded bargadars, then, such certificates must be ignored by all statutory and other authorities enjoined to maintain law and order and should not be used to hamper or endanger or put in to jeopardy the position or the right of recorded owners or bargadars. There was good deal of criticism advanced on behalf of the petitioners that by virtue of those certificates the certificate holders come upon the lands with the help of the police and the police authorities and other authorities treat the certificates as prima facie evidence in favour of the claim of the holders or grantees of those certificates. Learned Additional Advocate General contended that such certificates had no such effect. I hope and I expect and I record further as submissions made on behalf of the State by learned Additional Advocate General that such certificates have no such effect and the police is obliged and must act only in order to prevent cognizable offences. Learned Additional Advocate General drew my attention to several provisions namely, Sections 154 to 157 of the Code of Criminal Procedure which envisage the procedure under which cognizable offences can be taken note of by the police; the police must act, therefore, only within the limits of those sections. Why I emphasise on this aspect is because in several writ applications before me there have been allegations and from those allegations I presume there is some legitimate apprehension that police is sometimes induced to act on the basis of such certificates which I said in law as conceded by learned Additional Advocate General have no effect in the eye of law and the police must treat these as of no primafacie evidence. Learned Additional Advocate General, further, submitted that even assuming that in some cases the certificates in favour of cultivators created suspicion, no one have any cause of action in respect of the same. I am, however, unable to accept this position in law. Learned Additional Advocate General, further, submitted that even assuming that in some cases the certificates in favour of cultivators created suspicion, no one have any cause of action in respect of the same. I am, however, unable to accept this position in law. If such an action of statutory body and the certificates are granted by statutory bodies threaten or has a possibility of threatening the right or property or the right of possession of others, then the persons aggrieved or having genuine grievances of apprehended danger can certainly complain against prevention of such danger. 44. Learned Additional Advocate General in this connection drew my attention to the observations in the case of (36) Day v. Brownrigg, 1879 (10) Chancery Divison page 294 and he relied on the observations at page 304. In that case the plaintiffs had alleged in their statement of claim that their home had been called "Ashford Lodge" for sixty years and the adjoining house belonging to defendant had been called "Ashford Villa" for 40 years and the defendant had recently altered the name of his house to that of the plaintiffs house. The plaintiffs alleged that this act of the defendant had caused them great inconvenience and annoyance and had materially diminished the value of their property, and they claimed an injunction to restrain the defendant from continuing the use of the name of the house. It was held by the Court of Appeal in England that the alleged act of the defendant in calling his house by the name of the plaintiffs' house was not a violation of any legal rights of the plaintiffs and there being no allegation of malicious intention a demurrer to the statement of claim was allowed. There at page 304 of the report Jessel, M.R. reiterated that there was no injury, there was no slander of title. Therefore, there was no damages or no invasion of the plaintiffs', right. In that case the Court of Appeal proceeded on the basis that no legal rights of the plaintiffs had been interfered with. But the situation is different here because if the allegations of the petitioners in this case are true then there is an immediate danger of invasion of the legal rights and title of the petitioners. In that case the Court of Appeal proceeded on the basis that no legal rights of the plaintiffs had been interfered with. But the situation is different here because if the allegations of the petitioners in this case are true then there is an immediate danger of invasion of the legal rights and title of the petitioners. The next case that was relied on by learned Additional Advocate General was a decision in the case of The Mogul Steamship Company Limited v. Mcgregor Gow & Co, 23 Queen's Bench Division 598 and the learned Additional Advocate General relied on the observations of the Court of Appeal at page 613 of the report. There the Court of Appeal held that as there was an association being formed by the defendants with the view of keeping the trade in their own hands, and not with the intention of ruining the trade of the plaintiffs, or through any personal malice or ill-will towards them, was not unlawful, and that no action for conspiracy was maintainable. Now, here the situation is entirely different. Here the allegations, are, that by virtue of certificates which create no legal title or right as conceded by the Government threats to the petitioners right to property are imminent and are apprehended. In that context, in my opinion, the observations relied on by learned Additional Advocate General cannot have any relevance. The next decision to which my attention was drawn by learned Additional Advocate General was a decision in the case of Court of Appeal in England in the case of (38) Clark v. Londan General Omnibus Company Limited, 1906(2) QB page 648 and thus it was held that a master could not maintain an action for injuries which caused the immediate death of a servant. A father could not recover either in common law or under the Fatal Accidents Act, 1846, the funeral expenses to which he had, been put in burying an unmarried infant daughter whose death was caused by reason of the defendant negligence and who was residing with her father at the time of her death could not be recorded. In my opinion, the decision and the observation made in the said decision again were entirely in a different context and cannot be relevant in the context with which I am concerned with the certificates granted to the alleged bargadars. In my opinion, the decision and the observation made in the said decision again were entirely in a different context and cannot be relevant in the context with which I am concerned with the certificates granted to the alleged bargadars. The next decision to which my attention was drawn was a decision of the House of Lord in the case of (39) Sweeney v. Coote (1907) Appeal Cases, page 221. There the appellant had brought an action in the Chancery Division of Ireland against the respondent claiming an injunction. to restrain him from unlawfully maliciously conspiring with other persons to injure the appellant in her business and employment. It was held that upon the facts proved there was no evidence to support the claim. At page 223 of the report of the observations of Lord Halsbury upon which reliance was placed were entirely in a different context. Learned Additional Advocate General drew my attention to the fact that the record of rights created no title and he relied on the observations of the Privy Council in the case of (40) Wali Mohammad v. Md. Baksh, AJR (1930) Privy Council page 91 where the Privy Council reiterated that the entry in the record of rights was no foundation of title but were mere items of evidence to be adduced by a vendee to prove the sale. It is, however, important to emphasise that in this case the certificates arc granted which are complained of before the final publication of the record-of rights and therefore these will not be also prima facie evidence in favour of the grantees of the certificates. The Privy Council was not dealing with any question of immediate threat to the title. The next decision upon which reliance was placed by learned Additional Advocate General was a decision of the Supreme Court in the case of (42) State of Orissa v. Binapani Das AIR 1967 SC 1269 . Learned Additional Advocate General relied on this decision in aid of the proposition that nobody had any right to be above suspicion. He, therefore, submitted that the petitioners could not complain if any suspicion was raised in the minds of any authority including police by virtue of the grant of these certificates. I am unable to accept this position. Learned Additional Advocate General relied on this decision in aid of the proposition that nobody had any right to be above suspicion. He, therefore, submitted that the petitioners could not complain if any suspicion was raised in the minds of any authority including police by virtue of the grant of these certificates. I am unable to accept this position. If any action of any statutory body and it is important to remember that these certificates of which complaints have been made have been granted by statutory authorities exercising statutory powers, but before final adjudication of the rights creat such suspicion in the minds of the police authorities which threatens or there is an apprehension of threatening the rights of property of the petitioners, then, in my opinion, the petitioners have the right to complain against these certificates being acted upon. The decision upon which reliance was placed by learned Additional Advocate General does not support that proposition. On the other hand, the said decision in its entirety, in my opinion, is against the contention of learned Additional Advocate General. He relied an certain observations of the Supreme Court at page 1271 of the report to indicate that there the State of Orissa had first taken action on certain anonymous letters but the Supreme Court reiterated that before any action could be taken to the detriment of the petitioner on those anonymous letters reasonable opportunity had to be given to the petitioner. If these certificates are treated by police as mere anonymous letters then of course no complain can be made but as these certificates are granted by statutory bodies they are treated entirely in a different light by the police authorities and that causes apprehension, legitimate, in my opinion, in the minds of the petitioners against which the petitioners are entitled to be protected. The next decision upon which reliance was placed on this aspect by learned Additional Advocate General is the decision in the case of (43) Ramgopal v. State of M. P., AIR 1970 SC page 158. Reliance was placed on the observations of the Supreme Court on paragraph 10 of the judgment of the Supreme Court. It is true that unless any right was invaded there was no cause of action. Reliance was placed on the observations of the Supreme Court on paragraph 10 of the judgment of the Supreme Court. It is true that unless any right was invaded there was no cause of action. But if any right was invaded or there was apprehension of invasion of the right then certainly as these certificates which did not create any legal right would give rise to a cause of action in favour of the petitioners. In this connection it is relevant to refer to the decision of the Supreme Court upon which reliance was placed on behalf of the petitioners in the case of (55) J. Sharma v. Lucknow University, AIR 1976 SC page 2428 where the Supreme Court reiterated that where there was likelihood of bias by action taken in derogation of the principles of natural justice such likelihood of bias was liable to be prevented in an appropriate case. 45. In the Division Bench Judgment in the case of (41) State of West Bengal v. Kanailal Shah, 1979 (1) CLJ page 104 which was an appeal from an interlocutory order passed by me in one of these writ applications the Division Bench had also occasion to consider this aspect of the granting of certificates. The Division Bench at page 110 of the report reiterated that even in case the names of a Bargadar or an occupier is recorded under the 2nd proviso to Rule 1 of Appendix A until the final publication of the said record the entry prima facie would not have any statutory presumption of correctness in terms of Section 51 A (9) of the Act. The Division Bench further, observed, that, secondly, the revenue officer under Explanation.2 of the aforesaid proviso to Rule I of Schedule A might issue a certificate only after he had held on enquiry under Clause 2 of the 2nd proviso and had given persons claiming as bargadars and the owners such opportunities of being heard as the Revenue Officer might deem fit. Therefore, in my opinion, it is evident from the aforesaid observations of the Division Bench that certificates granted before the completion of the final record-or-fights and before he final adjudication after giving the reasonable opportunities to the parties do not create in the eye of law any prima facie evidence of title or right of possession and if any authorities including police authorities act on the basis of such certificates in respect of action taken by them then the said authorities would be acting without evidence and improperly. I am, therefore, of the opinion that for the reasons I have indicated the certificates do create in the facts and circumstances certain apprehension which are not remote or illegitimate and in case of threatened invasion of person's right either to possession or of title the said persons would have right to obtain appropriate relief in a court of law, I am, further, of the opinion that in acting upon the basis of the certificates the authorities concerned including the police authorities should bear in mind the aforesaid aspect of the matter. 46. It is now necessary to examine the several questions that require consideration in order to deal with the several contentions urged in this case. Of the several questions that require consideration in this case it may be convenient to deal with the question as to whether Section 60 of the said Act is ultra vires or not. I have set out that section and I have set out the corresponding provisions of section 59 of the West Bengal Estates Acquisition Act, 1953 upon which some reliance was placed. On behalf of the petitioners it was argued that Section 60 amounted to excessive delegation and us such was bad because of abdication of essential legislative functions by the legislature and therefore, according to the petitioners, the executive was given the task to legislate which was violative of the basic features of our Constitution which proceeded on the basis of the separation of the three organs of the Government. I have referred to the several decisions cited from the Bar on this aspect of the matter. I have referred to the several decisions cited from the Bar on this aspect of the matter. Even assuming that dealing with this contention that if a provision of the Act is violative of the basic features of the Constitution the placement of the Act in the 9th Schedule would not give the provision of the Act immunity, in my opinion, in order to determine this question it is necessary to examine whether in fact there has been an excessive delegation by the legislature of the legislative function to the executive. It is well settled that a legislature of a State or the Parliament can delegate some of its functions to the rule making authority provided sufficient guidelines are indicated in the provision empowering such delegation. Now, Section 60 has two features which are important to be borne in mind. The State Government under sub-section (1) of Section 60 has power to make rules only for 'carrying out the purposes of the Act.' Therefore, the power is not a naked or unguided power but the power is only for the purpose of carrying out the purposes of the Act. It has, secondly, to be borne in mind that under sub-section (1) of Section 60 such rules can only be framed 'after previous publication." it is then and then only the rules so framed become part of the Act as if they were incorporated in the Act. The provisions of previous publication, in my opinion, is a very salutory safeguard because it ensures that if the rules proposed are contrary to the purpose of the Act, then an objection and attention of the legislature would be drawn to that feature and the legislature could always rectify the position if it was found that these were not for the carrying out of the purposes of the Act. It is true that from this point of view Section 60 of the present Act is different from Section 59 of the West Bengal Estates Acquisition Act, 1953. The rules framed under Section 59 of the West Bengal Estates Acquisition Act, 1953 do not become part of the Act and sub-section (2) of Section 59 of the said Act does contain certain further guidelines. The rules framed under Section 59 of the West Bengal Estates Acquisition Act, 1953 do not become part of the Act and sub-section (2) of Section 59 of the said Act does contain certain further guidelines. But in my opinion a legislature can adopt either of the procedure namely, it is free to say that the rules framed would become part of the Act or it is also free to say that these would not become part of the Act. But as I see, on principle, in choosing either of the procedures indicated above it is not necessary to go beyond the principle that the legislature cannot abrogate its legislative function to some other agencies or authority in making those rules whether these become part of the Act or not and in my opinion 'in the purposes of the Act, and in the requirement of 'previous publication' there is sufficient safeguard against abandonment of essential legislative functions by the legislature. In that view of the matter, I am of the opinion, that Section 60 of the West Bengal Land Reforms Act, 1955 is not ultravires even assuming that it had violated the basic features it was not protected by the fact that the Act had been placed on the 9th Schedule. In this context, in my opinion, no useful purpose would be served by discussing in detail the observations of Mr. Justice Sinha in the case of (47) Bijoy v. I. T. Authority, 61 CWN page 590 and the observations of the Supreme Court in the case of (46) State of Utter Pradesh v. Baburam, AIR 1961 SC page 751. 47. I have set out the contentions of the learned advocate for the petitioners on the aspect of validity of sub-section (2) of section 60 of the West Bengal Land Reforms Act, 1955. For the purpose of this application I will proceed on the basis that if there is violation of the basic features of the Constitution, namely, separation of power between the different organs of State, then placement of a particular Act in the 9th Schedule would not make the said Act immune from challenge. I am of opinion that for the purpose of this application it is not necessary, in the view I have taken on Section 60 of the said Act, to express any opinion or to examine this question in any further detail. I am of opinion that for the purpose of this application it is not necessary, in the view I have taken on Section 60 of the said Act, to express any opinion or to examine this question in any further detail. It is, therefore, not necessary to consider the decisions relied on and mentioned by me as aforesaid on this aspect of the matter. I also proceed for the purpose of this application that if a particular legislation amounts to self-effacement by the legislature of essential legislative functions then such procedure would be violative of the principle of separation of power and as such destructive of the basic features of our constitution. It is, therefore, not necessary again to refer or discuss to the several decisions relied on by the learned advocates on this aspect of the matter. But I am of the opinion that if there is no self-effacement and if sub-section (2) of Section 60 of the said Act is not bad because of excessive delegation of legislative functions then rules framed under the Act become part of the Act and no question could arise of such part being in violation of the other parts of the Act though in construing the different provisions of the Act the principle of harmonious construction should be as far as practicable adhered to. I am of the opinion that the decision in the case of (8) In re Fire & General insurance Co. reported in 66 CWN page 566 has no application. It further appears to me that from the decision in the case of Central Bank of India v. Their workmen, AIR 1960 SC page 12 is not clear from the judgment whether in that case the rules had became part of the section or of the Act and as such the aforesaid decision is not of much relevance or assistance in disposing of the controversy in the present case. Similar is the position with the decision in the case of Sant Saranlal v. Parusuram, AIR 1966 SC page 1852 and the decision in the case of Madhusudano Kontara Nalko, AIR 1966 SC page 1857. Similar is the position with the decision in the case of Sant Saranlal v. Parusuram, AIR 1966 SC page 1852 and the decision in the case of Madhusudano Kontara Nalko, AIR 1966 SC page 1857. I, however, for the purpose of this application would accept and proceed on the basis that if sub-rule (1) and sub-rule (2) of Rule 21 of the rules were discriminatory then as the rules were framed subsequent to the placement of the Act in the 9th Schedule such rules could be challenged and would not be protected. 48. It is, therefore, not necessary to discuss the several other decisions referred to on this aspect of the matter. For the purpose of this application I shall also proceed on the basis that if Chapter VII of the West Bengal Land Reforms Act, 1955 was violative of the constitutional rights of the petitioners then as the said Chapter VII came into force on the 1st of September, 1965 that is to say after the placement of the Act in the 9th Schedule, the same was not entitled to protection on this ground. It is, therefore, not necessary to discuss the several decisions indicated before upon which learned advocates for the petitioners relied on this aspect of the matter. It is also not disputed that section 50 and Section 51 could not be applied simultaneously. This position was also accepted by Learned Additional Advocate General. So far as the submission of the learned advocate for the petitioners that after the notification was issued under section 51 of the West Bengal land Reforms Act, 1955 and the settlement proceedings were started suddenly Schedule A was amended and it caused inconvenience, in my opinion,–that argument of inconvenience will not make the action illegal. If, however I am able to accept the contention advanced on behalf of petitioner that by amendment of Schedule A unlimited or unguided power has been given to the officers concerned and there is excessive delegation of legislative function, then, perhaps such amendment would be bad, not because of the inconvenience or of the suddenness of its introduction but because of the other infirmity of abandonment of legislative function by the legislature. Now, so far as the contention advanced on behalf of the petitioners that the recording of bargadars by omitting or amalgamating stages (1) to (5) of the Schedule A of the West Bengal Land Reforms Rules 1965 would result in violation to demarcate the land and allocate different number of plots to each bargadars and would result in contravention of the technical rules as indicated in my opinion, in view of the plan which I have already indicated learned Additional Advocate General produced before me and which he assures this Court on behalf of the State Government would be the pattern for demarcating the land, I am of the opinion, that this contention is no longer of any relevance. In the view I have taken on the effect of sub-section (2) of Section 60 of the West Bengal Land Reforms Act, 1955 I am unable to accept the contentions challenging the validity of sub-section (2) of Section 60 of the said Act. The contentions urged on behalf of the petitioners on this aspect of the matter should, therefore, fail. 49. Before I deal with the other aspects of the different contentions urged in this case there is one aspect of the matter which in my opinion, should be dealt with. On behalf of the petitioners an argument was advanced that Section 21B of the Act imposed unreasonable restrictions in view of the reduction of ceiling from individual ceiling of 25 acres to the family ceiling of 17 acres for a family of 5 and also in view of Section 17(4)(5)(6) of the West Bengal land Reforms Act, 1955 and on this aspect as I have indicated before learned advocates for the petitioners drew my attention to a decision of the Division Bench of this Court in the case of (17) Amarendra v. Commissioner, Agricultural Income-Tax, 62 CWN page 670. According to the learned advocate for the petitioners the said decision was a decision of the Division Bench and the said decision held that in computing the income of an assessee who derived income from land cultivated through bargadars the bargadars' share of produce could not be treated as not received by him and cannot be excluded on any such ground. It was, therefore, urged that even though the bargadar was liable to pay only 50% in some cases and 25% in other cases the share of crop the owner would be liable to pay agricultural income-tax on the entire crop. Therefore, such a procedure as envisaged by Section 21 B would put further unreasonable hardship and restriction upon the owner and make him liable for payment of taxes on income not received by him. Learned advocates drew my attention as I have mentioned before to a decision of mine in the case of (18) D.N. Patra v. Agricultural Income-Tax Officer, 82 CWN page 117. There I had held that a owner whose land was being cultivated by the bargadars was liable under Section 7 of the Bengal Agricultural Income-Tax Act, 1944 only to the extent of that share which he received from the bargadar and not on the entirety of the yield from the land. I must, however, confess that my attention was not drawn to the prior Division Bench judgment referred to hereinbefore. But on a closer examination of the question I would prefer, if I may, to adhere to the view I have expressed in the aforesaid decision of mine. I shall presently indicate the reasons for doing so. I must at the outset observe that the Division Bench was concerned with the rights of sharing the crops under the West Bengal Bargadars Act, 1950 as it stood in the relevant assessment year with which the Division Bench was concerned, that is to say, the assessment year 1950-51, accounting year being 1356 B.S. Now at that time as I have indicated before the West Bengal Bargadars Act, 1950 held the field. This Act, however, was modified from time to time up to February, 1955. But the position has completely changed with the introduction of the West Bengal Land Reforms Act, 1955. This Act, however, was modified from time to time up to February, 1955. But the position has completely changed with the introduction of the West Bengal Land Reforms Act, 1955. Under Section 3 of the West Bengal Bargadars Act, 1950 as it stood at the relevant assessment year with which the Division Bench was concerned under sub-section (1) of Section 3 it was presumably for the owners and the bargadars to enter into agreement in writing as to any mode of division of the crops and if there was any such, agreement, then, such agreement would have guided the rights between the parties inter se, Sub-section (2) of Section 3 only came into operation if there was no such agreement and it also stipulated that the bargadar or the owner shall be entitled to an amount of the produce equivalent to the quantity of seeds supplied in case either the owner or the Bargadar supplied the seed for growing any crop. Thereafter, under clause (b) of sub-section (2) of the said Act, the bargadar and owner shall each be entitled to 1/3rd of the balance of the produce which remains after deducting the amount of the produce. Clause (c) of sub-section (2) deals with the remainder of the produce left after deducting the quantities referred to in paragraphs (a) & (b) and it provided that it should be divided in such manner as would be fair and reasonable. Section 5 of the said Act also dealt with the termination of cultivation by bargadar if a bargadar was negligent and if the produce of the land cultivated by the bargadar was less than the similarly situated land. Section 16 of the West Bengal Land Reforms Act, 1955, nukes, in my opinion, a significant departure on this aspect of the matter. Section 16 of the West Bengal Land Reforms Act, 1955, nukes, in my opinion, a significant departure on this aspect of the matter. Now under sub-section (1) of Section 16 the produce of any land cultivated by a bargadar "shall be divided in the manner indicated in clauses (a) and (b) of sub-section (1) of Section 16." As I read Section 16 in conjunction with the other provisions of the West Bengal Land Reforms Act, 1955 it curtails the right of termination of cultivation of land by bargadar and it makes the right of bargadars heritable and read with other provisions namely, section 16A of the Act, in my opinion, under law an owner is no longer competent or authorised to receive any crop in excess of the share indicated in the statutory provisions of the Act. 50. Therefore, if that is the position, then, this share of the crop of the bargadar which by virtue of the operation of law the owner is not entitled to receive cannot become part of the receipt of income by the owner under section 7 of the Bengal Agricultural Income Tax Act, 1944. There is the supervening statutory obligation or disability which debars the owner from receiving crop which belongs in the eye of law to the bargadar and if an owner receives such crop he commits violation of law and exposes himself to the consequences, penal and otherwise, contemplated by the said Act. In such circumstances an owner could not but be liable under the Agricultural Income Tax Act, 1944 only for the produce of the land which he is entitled to receive in law in respect of a land cultivated by a bargadar. The Division Bench had no occasion to consider this aspect of supervening statutory obligation under the provisions of law and to consider the effect of the West Bengal Land Reforms Act, 1955 and in that view of the matter, I am of the opinion, that after the introduction of the West Bengal Land Reforms Act, 1955 the said Division Bench decision cannot be considered to be a good law in so far as it held that an owner would be liable to agricultural income tax in respect of the entirety of the crop of the land. It is in this connection relevant to refer to the Bengal Agricultural Income Tax Act, 1944. It is in this connection relevant to refer to the Bengal Agricultural Income Tax Act, 1944. I am, therefore, of the opinion that the views that I have expressed in the decision in the case of (18) D.N. Patra v. Agricultural Income-Tax Officer, (supra) is in the light of the West Bengal Land Reforms Act, 1955 the correct view. I must, however, observe that in these writ applications it is not very material to determine this question. This aspect only arises as a point to be taken into consideration whether section 21B of the West Bengal land Reforms Act, 1955 is ultravires the Constitution of India, because it imposes unreasonable restrictions. Even assuming that the view I have expressed in the aforesaid decision is not the correct view, in my opinion, this would not, affect the position. Though it is true that section 21B having been introduced to the said Act by the West Bengal Land Reforms (Amendment) Act, 1977 that is to say after the placement of the Act in the 9th Schedule would be amenable to challenge on the ground of the infringement of the fundamental right it has to be borne in mind that even if section 21B imposes certain un reasonable restriction such restriction in the light of the social context must be judged whether it would be unreasonable. The fact that owner-ship of certain land entails certain extra hardships in the form of extra tax burdens does not necessarily impose unreasonable restriction. 51. But before this question of the vires of section 21B of the Act is determined as envisaged in question no. 6 indicated before it is necessary to answer the question no. 3 which I have formulated before, namely what is the scope and effect of Section 21B of the Act. Section 21B has been set out in extenso hereinbefore. The section creates a new rule of burden of proving a position. Normally under the Evidence Act, a person who asserts a positive fact has to discharge the onus of proving that fact if a dispute as to that fact arises in any appropriate proceeding. But before section 21 B can have any operation it has to be borne in mind that a person must be 'lawfully cultivating' any land belonging to another person. But before section 21 B can have any operation it has to be borne in mind that a person must be 'lawfully cultivating' any land belonging to another person. It is, therefore, necessary to satisfy the ingredients of section 21 B of the Act that the land must belong to another persons than the person who claims to be cultivating. Secondly, it enjoins that the person who is cultivating must be cultivating "lawfully". Now, there was good deal of contention as to what is meant by the expression "lawfully" in that section. A man may cultivate the land of another surreptitiously or clandestinely or in opposition to the will of the owner or as a trespasser : such person, in my opinion, would not come within the purview of the expression "lawfully cultivating". The right of cultivation must be lawful in order to attract the application of this section. During the course of the argument it was suggested that a person could be said to be cultivating the land of another, lawfully, only when he is doing the same either as a servant or as a licensee or as an agent of the owner. Now, the act of cultivating either as a licensee or a servant or an agent of the owner would necessarily require the positive sanction or permission on the part of the owner and such a person could certainly be said to be cultivating the land of another lawfully. 52. But learned Additional Advocate General stressed before me that the section enjoins that the person who is lawfully cultivating would be deemed to be a bargadar of another in respect of such land. Now, in order to be a bargadar under Sub-section (2) of Section 2 a Bargadar means a person under the system known as adhi-barga or barga or bhag, cultivates the land of another on condition of delivering a share of the produce of such land to that person. Therefore, the licensee, the servant or the agent of the owner of the person to whom the land belongs if he cultivates cannot be a bargadar under sub-section (2) of Section 2 of the Act. Therefore, the licensee, the servant or the agent of the owner of the person to whom the land belongs if he cultivates cannot be a bargadar under sub-section (2) of Section 2 of the Act. Therefore, learned Additional Advocate General, contended that if it be required that by Section 21B it was necessary that by positive evidence the person must establish that he was either a licensee or an agent or a servant of the person whose land he cultivates, then, there was no meaning of bringing into operation the deeming provision and the section would really be redundant. In my opinion, there is good deal of substance in this contention of learned Additional Advocate General. The section should not be so construed as to make it absurd or make it redundant if it is possible to avoid such a construction. But then the question again arises that anybody and every body who cultivates the land cannot come within the purview of Section 21B and attract the deeming provision in his favour. It has to be borne in mind that Section 21 B does impose certain burden, onerous according to some on the owners of the land and, therefore, must receive a very strict construction. In my opinion, the only harmonious way to construe Section 21B would be to say that the factum of mere cultivation would not make a person "lawfully cultivating". It must, further, has to be established that the owner of the land has knowledge that another person is cultivating his land. It must further, be established that that owner with the knowledge does not object or rather acquiesce in the cultivation of the land by the other person and in some cases takes benefit of that cultivation by another person. It must further, be established that that owner with the knowledge does not object or rather acquiesce in the cultivation of the land by the other person and in some cases takes benefit of that cultivation by another person. It is not necessary that there should be either any positive licence or agency or agreement of master and servant between the owner and the cultivator, but there must be knowledge, knowledge of cultivation to the owner of the land and that knowledge can only arise from the factum that cultivation is over a certain period of time, what period would depend upon the facts and circumstances of each case and further the fact that with such knowledge the owner did not object to such cultivation and further that the owner has derived some benefit of the cultivation of the land by another ; unless these conditions are fulfilled a person cannot, in my opinion, be said to be lawfully cultivating the land of another and therefore such person cannot attract the provisions of Section 21 B of the Act in his favour. Before a person seeks to take benefit of the deeming provision, these conditions must be fulfilled by that person. 53. It is in this background that one has to examine the question as to whether the section in question is valid or not. But before I do so I must examine another question as to whether provision of section 21 B applies in the proceedings for recording under Chapter VII of the West Bengal Land Reforms Act, 1955 or is only confined to the proceedings under Chapter III of the said Act. It is true that section 21B appears in Chapter III of the Act. Now, Chapter III of the Act deals with the bargadars and which starts with section 15 and ends with Section 21 B of the Act. It has to be borne in mind that Section 21B deals with the question of onus of the burden of proving. Therefore, it is legitimate to suppose that by that section the legislature was contemplating a situation where the question as to whether a person is a bargadar or not arises and in that proceeding upon whom the burden would lie was the question with which the legislature was dealing. That is an aspect of the matter which, in my opinion, it is important to bear in mind. That is an aspect of the matter which, in my opinion, it is important to bear in mind. The second factor that has to be borne in mind in this connection is that section 21B in its expressed term does not limit its application to proceedings only under section 21B. It is well known that oath the Central and State legislatures have often passed several legislations where it is provided for certain contingencies confirmed to the proceedings contemplated by a particular chapter or particular group of chapters, certain sections would apply. Section 21B does not specifically restrict its application to Chapter III of the said Act. It is true that section 21 B does not also specifically state that it should apply to all proceedings under the Act but the question, is whether that is the only presumption or not. The third factor which, in my opinion, is important to bear in mind is, whether, it would be appropriate in the absence of the intention of the legislature expressed in clear language to say that only in certain proceedings the burden of proving the question who is a bargadar or not will be discharged in certain fashion. But in other proceedings it would be discharged in different fashion. That would expose the different proceedings under the same Act to different treatment and may be liable to attack as violative in principles of law as discriminatory. It is well settled principle of construction to try to construe the provisions of any Act in such a fashion that the same would not make it vulnerable to attack on the ground of discrimination. The fourth factor, which, in my opinion, is decisive and important in this matter is that Chapter III does not really deal with all situations where the question whether a person is a bargadar or not can be agitated. It arises in the limited number of cases as indicated in Section 18 which I have set out hereinbefore. Section 18 deals with dispute between a bargadar and the person whose lane he is cultivating in respect of certain categories of disputes mentioned in sub-section (1) of that section shall be decided by the appropriate officer or authority as the State Government appoints. These disputes are essentially disputes relating to division of delivery of produce, recovery of produce under section 16A and termination of cultivation by the bargadar. These disputes are essentially disputes relating to division of delivery of produce, recovery of produce under section 16A and termination of cultivation by the bargadar. These disputes, as such, do not bring out the issue as to whether a person is a bargadar or not, the question might, however, arise incidentally in adjudication of the disputes contemplated under sub-section (1) of section 18 of the Act. But sub-section (2) provides as I have indicated before that if any dispute referred to in sub-section (1) or otherwise any question arises as to whether a person is a bargadar or not and to whom such share of the produce is deliverable such questions would be determined by the officer or authority mentioned in sub-section (1). Therefore, sub-section (2) clearly indicates that if in deciding the disputes mentioned in sub-section (1) incidentally the question as to whether a person is a bargadar or not arises, then, that question will be determined by that authority but for the purpose of recording as to who is a bargadar or not the sub-section (2) or sub-section (1) does not empower adjudication by the officer contemplated by the section 18. The expression "otherwise" which has subsequently been inserted in the Act by the West Bengal Land Reforms (Amendment) Act, 1974 has been judicially construed in the two decisions which I shall presently note which indicate that the expression 'otherwise' is confined to the disputes connected with the disputes mentioned in sub-section (1) of section 18. In Sub-section (3) of section 21 if any question as to whether a person is or is not a bargadar arises in the course of any proceeding before any civil or criminal Court it is provided that the Court shall refer it to the officer or authority mentioned in sub-section (1) of Section 18 for decision. Sub-section (3) of Section 21 was also introduced by the same Act namely, West Bengal Land Reforms (Amendment) Act, 1974. Sub-section (3) of Section 21 was also introduced by the same Act namely, West Bengal Land Reforms (Amendment) Act, 1974. Therefore, except in the contingencies namely, any adjudication of the disputes mentioned in three clauses to sub-section (1) of Section 18 and if incidentally any such disputes arises as contemplated under sub-section (2) of Section 18 and if there is any reference under sub-section (3) of section 21 that authority or the competent officer who is normally the bhag chas officer has jurisdiction to determine whether a person is a bargadar or not but he cannot apart from these sub-sections independently decide as to whether a person is a bargadar in respect of the land of another if the question falls for determination when a bargadar makes a claim for recording either under Section 50 or under Section 51 or in respect of a proceeding under Section 51A. There is no provision in any of these provisions to refer to any authority under Chapter III of the Act. But essentially and primarily the question, whether, a person is a bargadar or not arises at the time of recording and after the recording is done, then the other questions follow more or less and in my opinion it would be too narrow a construction to say that section 21B was confined only to the proceedings contemplated by sub-section (1) of section 18 read with sub-section (2) of section 18 and sub-section (3) of Section 21 and not to other proceedings where vitally and essentially and independently this question as to who is a bargadar or not very often primarily arises. 54. Learned Additional Advocate General contended as I have mentioned before that it was not a correct proposition of law to state that no recording could be made unless a dispute had arisen prior to the recording proceeding as to whether the claimant is or is not a bargadar and had been settled previously under Section 18(2) of the Act. I am inclined to accept this position in law. I am inclined to accept this position in law. As I have indicated before Section 18(2) does not confer exclusive jurisdiction to decide all disputes regarding bargadarship whenever or wherever arising and such dispute may and do very often arise at different stages of recording namely, for example under paragraphs 5 & 6 of Schedule A of the said rules as well as section 51A of the Act read with Rule 24 of the said rules and unless authority is presumed to the Revenue Officers to deal with such disputes these provisions would become absurd and nugatory. It is also important, as was emphasized by learned Additional Advocate General, that there was no provision for reference of dispute arising in the course of recording to officers empowered under Section 18 as there is in the case of civil suit or criminal proceeding under section 21(3) of the said Act. In the absence of such a provision neither the Revenue Officer has any jurisdiction to refer such a dispute to the officer under section 18 nor such officer adjudicating the dispute under Section 18 has any jurisdiction to consider such a reference. It is correct, therefore, to accept learned Additional Advocate General's argument that to hold that all disputes of recording must be previously settled under Section 18(2) and Section 18(2) only would reduce the law to absurdity and would bring the process of recording to a deadlock. Such a construction, in my opinion should not be made specially of a provision of this nature and in the language of the different sections I do not find any warrant to lead me to make such a absured construction. 55. There is, however, one lacuna which I shall presently notice which the legislature may in my opinion try to rectify or amend. The expression "otherwise" in Section 18 (2) is consequential to the introduction of Section 21(3) and as I have indicated before, both these had been introduced by the same amending Act. It is, therefore, appropriate to construe the expression "or otherwise'' as complementary to section 21(3). This question came up for consideration before a learned Single Judge of this Court in the case of (44) Chopala bala Adhikary v. Monoranjan Das, 1975 (2) CLJ page 447. It is, therefore, appropriate to construe the expression "or otherwise'' as complementary to section 21(3). This question came up for consideration before a learned Single Judge of this Court in the case of (44) Chopala bala Adhikary v. Monoranjan Das, 1975 (2) CLJ page 447. There a suit was instituted in the Court of the learned Munsiff for adjudication of title and for confirmation of possession of the suit land, the defendant claimed that he was a bargadar of the suit land. The learned Munsiff referred to the appropriate authority under Section 18(1) of the West Bengal Land Reforms Act, 1955 the question whether the defendant was a bargadar of the suit land under the Plaintiff and stayed further proceedings in the suit. The order of reference was challenged in an application under Article 226 before this Court. The principal question that was agitated was, whether, the learned Munsiff had acted within his jurisdiction in making the said reference under section 21(3) of the Act. The suit out of which the rule arose was instituted before the amendment of the West Bengal Land Reforms (Amendment) Act, 1974 Section 7 of the Amending Act, 1974 by which sub-section (3) was incorporated to section 21 did not expressly state that sub-section (3) should have retrospective effect. Therefore, the first question to be decided in that case, was whether the said sub-section of Section 21 would apply to suits and proceedings instituted prior to the enactment of the Amending Act of 1974. This in term raised the further question whether sub-section (3) merely altered the procedure relating to suits and proceedings or it affected vested substantive rights, among other points which were decided by the learned trial Judge with which I am not concerned in this application Mr. Justice Chittatosh Mookherjee in his judgment held inter alia, that the Court under sub-section 21(3) could refer to the officer or authority mentioned in Section 18(1) only such questions which came within the ambit of the determination under Section 18(2) of the Act. The applicability "or otherwise'' of Section 21 (3) would, therefore, depend upon the frame of the suit, the relief prayed and the issues involved. Section 21(3) was attracted only with the question of barga right directly arose and not merely by implication. The applicability "or otherwise'' of Section 21 (3) would, therefore, depend upon the frame of the suit, the relief prayed and the issues involved. Section 21(3) was attracted only with the question of barga right directly arose and not merely by implication. Therefore, when the question of applicability of sub-section (3) was raised the Court should examine the pleadings and consider the issues which arose for determination in the suit. If any question as contemplated under sub-section 21(3) arises for determination, the Court should refer the question, according to the learned judge, to the appropriate authority mentioned in Section 18(1). Even if the question contemplated by sub-section (3) arose in a suit or proceeding the Court was powerless so held the Judge, to make interlocutory orders in such suit or proceeding. It was, further, held by the learned Judge that according to the learned Munsiff in that case the main question which came up for decision in the case was whether the defendant was a bargadar or not having regard to the nature of the of pleadings the parties and therefore the learned Munsiff was correct in holding that in that case section 21(3) was attracted and therefore that question should be referred to the authority mentioned in Section 18(1), The question was again considered by Mr. Justice Chittatosh Mookherjee in the case of (45) Prabir Kumar Pattanayak v. State of West Bengal, 1977 (1) CU page 219. There referring to the previous decision just mentioned hereinbefore the learned Judge held that the authority or officer in deciding the dispute under sub-section (1) of Section 18 could independently determine under sub-section (2) the question whether a person was a bargadar or not. The word 'otherwise' had been inserted, according to the learned Judge in Section 18 to confer upon the said officers or authorities jurisdiction to decide the question whether a person was a Bargadar or not or to whom the share or produce was deliverable even in the absence of disputes referred to in sub-section (1). The learned Judge held that after the amendment of sub-section (2) even if such a question arose in any other different way the officers or authorities under sub-section (1) of Section 18 could assume jurisdiction under sub-section (2) and determine the question. 56. The learned Judge held that after the amendment of sub-section (2) even if such a question arose in any other different way the officers or authorities under sub-section (1) of Section 18 could assume jurisdiction under sub-section (2) and determine the question. 56. Therefore, I am of the opinion that Section 21B could not be confined only to Chapter III of the Act and would also be applicable to other chapters wherever the question for adjudication as to whether a particular person is a bargadar or not falls for determination because it would, in my opinion be improper to provide for one procedure or method or evidence for adjudication of one particular type of disputes and leave out other disputes because that might lead to, discrimination which as I have mentioned before should be avoided. 57. But as I have mentioned before there is one lacuna on this aspect of the matter. If it be held that Chapter VII is the appropriate chapter where primarily and independently the question as to whether a person is a bargadar or not arises for the determination at the stage of the recording and that determination must be by the authority and by the officers empowered to discharge their functions under Sections 50, 51 and 51A, then, in a case where an authority comes to one finding at the stage of recording on the evidence adduced before him but suppose in an adjudication under Section 18(1) or 18(2) read with Section 21(3) a different conclusion is arrived at then, what would be the result ? Which conclusion would have the more predominant value or in other words supposing a person is adjudicated as a bargadar in the proceedings under sections 50, 51 and 51A will that determination be binding on an authority adjudicating disputes under Section 18 or on a reference made under Section 21(3) of the Act or is the officer adjudicating such a question incidentally or of a reference being made free to ignore that finding. There is no clear indication in the Act as to what is to happen in such a case. There is no clear indication in the Act as to what is to happen in such a case. But, in my opinion, the harmonious construction of the different provisions would be to hold that if there is no prior determination by the authority under Section 18(1) or on a reference made under sub-section 18(2) read with Section 21(3) then the officer or authority carrying on the recording proceedings under Chapter VII read with Schedule A would be free to determine the question for himself on the evidence adduced including taking into cognizance that provisions of Section 21B of the Act. But if there is a prior determination by an officer under Section 18(1) or by an officer under section 18(2) and on reference being made under section 21(3) of the Act, then, until further evidence is adduced of any alteration in the situation subsequent to the determination under section 18(1) section 18(2) or section 21 (3) must be binding on the authorities performing the act of recording under Chapter VII read with Schedule A of the said rules and must proceed on such basis. If, however, there is cogent and reliable evidence that subsequent to such, finding there has been an alteration in the situation then of course officer concerned would be free to proceed afresh ignoring the previous finding of the authority under section 18(1) or 18(2) or section 21(3). But in consonance with the principles of natural justice and fair play he must indicate in his order as to what is the alteration in the situation which has necessitated making the finding different from or contrary to the finding by the authority udder section 18 (1) or section 18(2) read with section 21(3) of the Act. If there are no cogent or relevant material or evidence to indicate that there has been any such alteration then the finding made under section 18(1), 18(2) or section 21(3) must be considered to be binding. 58. The next question that arises for consideration in this case is, whether, if there is a finding by the authority or the officers concerned under Chapter VII read with Schedule A of the rules in the recording process, whether such a finding or adjudication binding or conclusive on the authority under section 18(1) or 18(2) read with Section 21(3) of the Act. If the question whether a person is a bargadar or not arises incidentally and such a question can only arise incidentally, under Section 18(1) but may arise also not necessarily incidentally on a reference being made under Section 21(3), then in view of the language used under sub-section (1) as well as sub-section (2) of Section 18 and in view of the fact that under Section 21(3) a judicial adjudication in a civil suit or criminal proceeding is referred to the authority under section 18(1), in my opinion, that officer can determine such questions irrespective of or independent of any finding arrived at in Chapter VII in the process of recording read with Schedule A of the rules, but here again he must give due weight to the finding arrived at in the Chapter VII proceedings. This according to me is the true effect and purport of section 21B of the Act and its scope of application in proceedings under section 18(1), 18(2) and 21(3) in proceedings in Chapter VII read with Schedule A of the rules. 59. It is, now, necessary to determine other aspects of the question namely, whether, Section 21B is ultra vires the Constitution of India. Now this question has two aspects, firstly, it is necessary to determine whether Section 21B of the Act imposes unreasonable restriction upon the recorded owners of land, recorded bargadars of land, and as such ingringes the fundamental rights of the citizens. This has also to be considered in the background of the arguments advanced in the background of Article 304 (b) of the Constitution of India. It is well settled and not disputed before me seriously that in view of the fact that this section that is to say section 21B was placed in the statute after the placement of the Act in the 9th Schedule of the Constitution it is still open for the petitioners to challenge the validity of the section on the ground of violation of the fundamental rights of the petitioners. The other aspect of the question of the vires of the section is on the question whether the State Legislature has the competence to legislate on this subject. 60. The next aspect that has to be considered is whether Section 21B of the Act is ultravires the Constitution. This question of ultravires has two aspects on the basis of which arguments were advanced before me. 60. The next aspect that has to be considered is whether Section 21B of the Act is ultravires the Constitution. This question of ultravires has two aspects on the basis of which arguments were advanced before me. It was argued that the section which was enacted was beyond the competence of the State Legislature and as such bad. It was also argued that the section imposed unreasonable restrictions on the rights of property and therefore interfered with the fundamental rights of recorded owners and recorded bargadars. It was urged that as the section was placed in the Act after the placement of the Act in the 9th Schedule of the Constitution this challenge was open to the petitioners. It would be appropriate, in my opinion, to deal with the first aspect of the matter first. On this aspect on behalf of the petitioner learned advocate contended that Section 21 B in so far as it conferred rights upon labourers, licenses or cue-takers to get the benefit of being recorded as bargadars by throwing the burden of proving the contrary on the owners or the recorded bargadars was a colourable piece of legislation, because according to the learned advocate for the petitioners, there was legislative incompetence on the part of the State legislature because the field had already been occupied by the Parliament by passing the Minimum Wages Act, 1948 to which my attention was drawn. Therefore, it was argued that in view of Entry 7 of List III of the 7th Schedule read with Entry 97 of List I of the 7th Schedule it could not be included in Entry 14 or Entry 18 or Entry 45 of the List II by implication. The Minimum Wages Act, 1948 was a Central Act providing for fixing minimum rates of wages in certain employments and it dealt with certain factors primarily with the question as to what should be the minimum wages paid in certain employments. Entry 7 of List III of the 7th Schedule of the Constitution deals with contracts, including partnership, agency, contracts of carriage and other special forms of contracts but not including contracts relating to agricultural land." Entry 97 of List I deals with any other matters not enumerated in List II or List III including any tax not mentioned in either of these two lists. Entry 14 of List II of the 7th Schedule deals with agriculture, including agricultural education and research, protection against pests and prevention of plant diseases. Entry 18 deals with land that is to say rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rent, transfer and alienation of agricultural land; land improvement and agricultural loans, colonization. Entry 45 of the same list deals with land' revenue, including the assessment and collection of revenue, the maintenance of land records survey for revenue and record of rights and alienation of revenues. It was, further, urged on behalf of the petitioners that barga right was not a right in or over the land or land tenure within Entry 18 of List II and in view of the provisions of Section 2(h) of the West Bengal Estates Acquisition Ac& and Section 2(6A), 14S and 15A of the West Bengal Land Reforms Act, 1955 and the failure of the State Government to provide for compensation to the bargadars for vested land section 21 B could not be enacted by the State Legislature. I shall deal with certain decisions referred to in this connection. In this connection reliance was placed on certain observations in the case of (19) Board of Trustees v. State of Delhi, AIR 1962 SC page 458 where at page 473 the Supreme Court referred to the previous decision in the case of (56) Gajapathi Narayan Deo v. State of Orissa, AIR 1953 SC page 375 where it dealt with the question of colourable legislation. The Supreme Court reiterated that in deciding whether a legislation is colourable or not no question of motive arises. The question of colourable legislation arises only when although apparently legislature in passing a statute purported to act within the limits of its power yet in substance and in reality the statute transgressed its powers. To the same effect are the observation of the Supreme Court in the case of (20) Viravelu v. Sp. Dy. Collector, AIR 1965 SC page 1017 at page 1025. In the case of (21) Shankaranarayan v. State of Mysore, AIR 1966 SC page 1571 the Supreme Court again reiterated the above view. To the same effect are the observation of the Supreme Court in the case of (20) Viravelu v. Sp. Dy. Collector, AIR 1965 SC page 1017 at page 1025. In the case of (21) Shankaranarayan v. State of Mysore, AIR 1966 SC page 1571 the Supreme Court again reiterated the above view. In the case of (22) Rajani Kanta Hazra v. Junior Land Reforms, Officer, 1978 (2) CLJ page 30 the Division Bench of this Court observed that from the definition of 'incumbrance' it was clear that the rights of a raiyat or an under raiyat or a non-agricultural tenant were not included within the definition of "incumbrance", But "incumbrance included all other rights or interests of whatever nature barring the land allowed to be retained by an intermediary and the definition was of the widest amplitude. It does not give protection to anyone except raiyats or under-raiyats, non-agricultural tenants and to the lands allowed to be retained by an intermediary under section 6 of the West Bengal Estates Acquisition Act, 1953. A barga right was not entitled to any protection and was not an incumbrance when the vesting took place it took place without the barga rights. Reliance was also placed in the case of (17) Amarendra v. Commissioner of Agricultural Income Tux, 61 CWN page 672 though this decision has some importance on the aspect of the liability of the agricultural income tax, but on the aspect I do not see much relevance. I have already discussed the said discussion before. 61. In my opinion, the arguments advanced on behalf of the petitioners on this aspect of the matter were under certain amount of misapprehension. Section 21 B of the said Act as I have read it and indicated before is special rule of evidence for proving the claim of a bargadars in certain proceedings under the said Act. It does not, therefore, fall under any of the items in the different lists mentioned on behalf of the learned advocates for the petitioners. In my opinion, it is covered by Item 12 of List III of the 7th Schedule. It does not, therefore, fall under any of the items in the different lists mentioned on behalf of the learned advocates for the petitioners. In my opinion, it is covered by Item 12 of List III of the 7th Schedule. As the section deals with only a very special method of proving a particular state of affairs, in my opinion, it is also not in any way either repugnant to or inconsistent with any of the provisions of the Evidence Act though it does provide a special mode or a different mode from the ordinary mode of proving as envisaged under the law of evidence. Read in that view of the matter, in my opinion, no question of repugnancy or inconsistency with any Central Act as contemplated under Article 251 or Article 254 of the Constitution of India arises. I am, therefore, of the opinion that Section 218 in the light I have read does not infringe the Constitution as being beyond the competence of the State Legislature. It is not a colourable piece of legislation. Section 218 does not give any right to the labourers, licensees or caretakers to become bargadars. Bargadars are those who arc defined under section 2(2) of the Act. It only provides a special mode of proving the claim of a bargadar where a dispute arises under certain circumstances. I am therefore, unable to accept the challenge to the section on this ground and as there is no depriviation of any property right either of recorded owners or of bargadars there is no question of taking away any property without providing for compensation by enacting section 21 B of Act. Therefore, whether barga right is a incumbrance or not is wholly irrelevant to the issue on this aspect of the matter. 62. The next aspect of the challenge to Section 218 was, as I have indicated before, that it created unreasonable restriction and learned Advocate for the petitioners in this connection drew my attention to the reduction of ceiling from individual ceiling of 25 acres to the family ceiling of 17 acres for a family of five and the provisions of Section 17(4)(5)(6) of the Act. My attention was drawn also to the liability to pay income tax on the entirety of the produce. I have dealt with this aspect of the matter before. My attention was drawn also to the liability to pay income tax on the entirety of the produce. I have dealt with this aspect of the matter before. It was also emphasised that there was difficulty in cultivation by minors, widows, physically incapaciated persons etc. and there was no provision for termination of cultivation for negligence on the part of the bargadars. It was also urged that Section 21 B was contrary to the basic principles of fair play embodied in the Evidence Act. In this connection in view of the amendments of the expression 'personal cultivation' and the notification thereto a good deal of argument was made that section 21 B violated the provisions of Article 304(b) of the Constitution of India. Before I deal with the arguments advanced on Article 304 of the Constitution it is necessary to deal with the question whether Section 21 B imposes unreasonable restrictions on the rights of the property of the owners or of bargadars for the reasons advanced on behalf of the petitioners. Now, in this context it has to be borne in mind that there is the owners' rights as Will as the recorded bargadars' rights to be protected. There is also the rights of others who are cultivating the land really as bargadars but who have, either because of administrative inefficiency or of various other social factors, have not been recognised as such, on this aspect various arguments have been advanced. It is important to reiterate certain fundamental principles in judging the reasonableness of a particular piece of legislation. Normally, the legislature is supposed to know the needs and the welfare of the people or in otherwords the legislative facts upon which the social legislation of this type is based and, in my opinion, the Courts should as a matter of principle defer to that legislative decision unless it is demonstrated beyond doubt or beyond controversy that the particular piece of legislation creates unreasonableness. Now, on this aspect various factors have been advanced. It has been said that in the past the Zamindars or the landlords or in the present terminology the Jotedars have exploited the poor, the uneducated the unorganised cultivators who by their hard toil have yielded the produce of the land upon which a class of parasites have thrived for long. Now, on this aspect various factors have been advanced. It has been said that in the past the Zamindars or the landlords or in the present terminology the Jotedars have exploited the poor, the uneducated the unorganised cultivators who by their hard toil have yielded the produce of the land upon which a class of parasites have thrived for long. I have set out some of the historical backgrounds for and against the system of Zamindary or the Permanent Settlement. It has been said that the poor cultivators have been made to provide for every luxury, indulgence and vice of this rentier class who have exploited the cultivators and the cultivators being dependent on loans and monetary help from these people have not dared to have their names properly recorded even though they were actually the bargadars, on the other hand, it has been emphasised that this is an unreal picture if one remembers the great contribution to our intellectual, to our cultural and to our political movement that this land owning class has made for the advancement of this county. It is from this class have originated the real Reniassance of Bengal and it is this class who have provided the backbons of our national and political movements. It bas also been emphasised that it is no longer the case of big Zamindars or land owners but small families dependent upon lands and who as I said before have been considered to be the backbone of the middle class Bengalee. It is also unreal, according to some, that the 'men behind the plough' are unorganised, timid, meek and submissive who are being exploited by Jotedars or small land owning families. The real truth according to some is that the men behind the plough are very much well organised and motivated as they are used as weapons of certain political parties are more powerful than the small land owning classes. It is very difficult for the Court to make any proper assessment of the situation. It is also very difficult to decide whether throwing a heavy burden on the owners or the recorded bargadars is really justified as a measure of certain kind of affirmative action to undo the mischief or miseries inflicted upon men behind the plough in the past. It is also very difficult to decide whether throwing a heavy burden on the owners or the recorded bargadars is really justified as a measure of certain kind of affirmative action to undo the mischief or miseries inflicted upon men behind the plough in the past. But in judging the question of validity of a particular piece of legislation it is proper, in my opinion, for a court of law to take cognisance of the felt necessities of time, the prevelant moral and political theories, institutions of public policy, the unconcious prejudices of men in society. Having regard to these factors it appears to me that it is also necessary to bear in mind that no piece of legislation is an exercise in hypothesis. In that view of the matter taking into consideration that only a special mode of proof has been provided in the section upon certain conditions. I am of the opinion, that it cannot be said that unreasonable restrictions have been put by section 21B of the Act. In the case of (1) Ramhari v. Nilmoni Das, AIR 1952 Cal. page 184 the Division Bench of this Court was considering the reasonableness of the restrictions imposed by Section 5(1) of the West Bengal Bargadars Act of 1950 where Mr. Justice P. B. Mukharji, as the learned Chief Justice then was observed that the legislation could not be condemned as unreasonable because it was not hypothetical. Legislation was not an exercise in hypothesis but was in its primary purpose empirical. The reasonableness of the restriction must, therefore, be judged in relation to the social, economic and political context. The same view was also reiterated by the decision in the case of (48) In re : Oriental Gas Company, AIR 1961 Cal. Page 1167. See also in this connection the observations in the case of (49) Iswari Prosad v. N. R. Sen, AIR 1952 Cal. page 273. It has further to be borne in mind that there is always a presumption of constitutionality in favour of a legislation as I have indicated before. Reliance may be placed on the observations in the case of (57) Chiranjit Lal v. Union of India, AIR 1951 SC page 41 and (50) Shersingh v. Rajasthan State, A I R 1954 Rajasthan SC page 65. 63. Reliance may be placed on the observations in the case of (57) Chiranjit Lal v. Union of India, AIR 1951 SC page 41 and (50) Shersingh v. Rajasthan State, A I R 1954 Rajasthan SC page 65. 63. Section 21B is also not unreasonable in view of the fact that the owners who are minors, widows or physically disabled, persons or the heirs of widows or physically disabled persons, do not suffer more than any one else by cultivation through bargadars and in any case taking a broad view of the matter every possible claim of insignificant social claim cannot be satisfied. There is ample safeguard against the heirs of bargadars who are not able to cultivate in view of the provisions of the Act. Though there is absence of provision for termination of cultivation for negligence of bargadars that does not make, in my opinion, the provision of Section 21 B unreasonable. When the share of the bargadars was uncertain as under the West Bengal Bargadars Act, 1950 there might have been some ground for providing for termination on the ground of negligence but now the bargadars have been given a minimum of 50% as his share of the produce which rises to 75% if he provides all the inputs. Negligence should practically be ruled out because it would be inconsistent with normal human conduct. It is also well known as a social fact that cultivators of small plots put their best efforts to get the maximum production. For the aforesaid reasons and in the way I have read Section 21 B in the sense that it does not create any new class but only provides a special mothod of proving certain state of affairs, in my opinion, in the social context and in the felt necessities of time, the impugned section cannot be said to be unreasonable. The challenge on this aspect of the matter must fail. 64. There is another aspect dealing with this question. Section 21B of the Act can be viewed in the light of the directive principles of the State specially in the light of Articles 38, 39(b) and Article 46 of the Constitution and if that is the position, that is to say if section is to implement the directive principles of the Constitution, then, it is not necessary that it should be expressly stated to be so. Reliance in this connection was placed by learned Additional Advocate General on certain observations in the case of (52) R.S. Swamiji v. State of Mysore, AIR 1966 SC page 1172 at page 1175. But in the view I have taken already on the aspects mentioned hereinbefore, in my opinion, it is not necessary to examine this question of the directive principles of the Constitution. 65. Along with the question of reasonables is the question of violation of Article 304(b) of the Constitution. On behalf of the petitioners it was stated that in view of the recent amendment by notification that the members of the family must remain within radius of certain miles of the mouza and in view of the definition of 'personal cultivation' section 21B creates unreasonable restriction. It brings about according to the learned advocates for the petitioners, a complete alienation between the rural and the urban life of the community and it saps any communication in vital matters between the rural and urban or semi-urban sectors of the society. In this connection reliance was placed on certain observations in the case of (58) Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC page 232 at paragraphs 52, 53 & 54 of the judgment and also on the decision in the case of (59) Daulat Ram v. State of Punjab, A I R 1962 SC page 1206 and also on the decision in the case of (60) Koteswar v. K. R. B. & Co., AIR 1969 SC page 504 and reliance was placed on paragraph 14 of the judgment and on the decision in the case of (61) S. Ahmed v. State of Mysore, AIR 1975 SC page 1443 at paragraph 6 of the judgment. In the light I have construed section 21 B of the Act, it appears to me, that this argument of violation of Article 304 (b) of the Constitution is under a misapprehension. Section 21 B does not create any new rights. It provides a new method of proving certain existing facts. It may be a special method but it gives no further right to any body which he did not possess before the introduction of the section nor does the section curtail any rights. Therefore, in my opinion, the said provision cannot be construed to be in violation of Article 304(b) of the Constitution. It may be a special method but it gives no further right to any body which he did not possess before the introduction of the section nor does the section curtail any rights. Therefore, in my opinion, the said provision cannot be construed to be in violation of Article 304(b) of the Constitution. For the aforesaid reasons I am of the opinion that Section 21 B cannot be said to be ultra vires. 66. It was, next, argued that Section 50 of the Act was limited in scope and provided for recording in respect of changes after the vesting under the West Bengal Estates Acquisition Act, 1953 up to the date of notification under Section 51 of the West Bengal Land Reforms Act, 1955 and Section 51 provides for representation and preparation of record of rights by an elaborate procedure laid down in rules 22 to 25 read with Schedules A and B. These two sections could not be applied simultaneously. In aid of this submission certain decisions were relied on behalf of the petitioners. Learned Additional Advocate General accepted the proposition that Sections 50 & 51, 51A operated in the different fields and, therefore these could not be simultaneously utilised or applied. In that view of the matter it is not necessary for me to discuss the aforesaid decisions relied on behalf of the petitioners. In this connection it was also urged that if the Land Reforms Act purported to confer powers both under Section 50 & 51 then both the sections are unconstitutional on the ground of discrimination and violation of the basic features of the Constitution. In my opinion this argument cannot be accepted. The section dealt with certain contingencies where alteration in the mode of cultivation can be recorded and Section 51 dealt with a different contingency. Therefore, in my opinion, there was no scope of violation on the ground of discrimination. It was, then, contended that after the notification was issued under Section 51 of the Act and settlement operations were started then suddenly Schedule A was amended giving unlimited and unguided power to cancel on its own motion or on application of others, at any time, and that there was excessive delegation to the executive authorities without proper guidelines. I have indicated before that the suddenness of the changes introduced is not relevant in considering the validity of this section. I have indicated before that the suddenness of the changes introduced is not relevant in considering the validity of this section. Secondly, for the purposes of the Act I find there is a sufficient guideline and as such power could not be considered to be excessive delegation. It was, then, argued that recording of bargadars by omitting or amalgamating stages (1) to (5) of Schedule A would result in failure to demarcate the land, determine the area and allot the separate numbers of the plots' of each bargadars and would be in contravention of the rules and create confusion. As I have indicated before, learned Additional Advocate General has assured this Court that there would be proper demarcation and he has handed over to me a copy of model plan which I have marked as exhibit in this case and it is to be kept as part of the record indicating separate numbers would be given and separate portions of a plot are recorded in the names of different bargadars there would be sufficient demarcation. It was then argued that reading the provisions of the Act namely, Section 2(8) section 4(4)(b)(c), 2nd explanation to section 17 and third explanation to section 17 together with the Act were vague and unpredicable. It was, therefore, urged that as the Act was vague the same was bad. In this connection reliance was placed on several decisions. I am however, unable to accept this contention. It is not necessary, in my opinion to deal in detail with those cases which deal with the proposition that if an Act is vague the same is bad. But as I read the different provisions I db not find any vagueness in the Act, though the Act and the rules could have been couched in more explicit and clear terms. 67. There was challenge on gathering informations by the revenue officers concerned who are charged with the act of recording behind the hack of the recorded owners and bargadars. As I have mentioned before there is no straight jacket formula of natural justice. 67. There was challenge on gathering informations by the revenue officers concerned who are charged with the act of recording behind the hack of the recorded owners and bargadars. As I have mentioned before there is no straight jacket formula of natural justice. The basic requirement, however, is that the several persons whose rights are in any way affected should be given reasonable opportunities to present their cases and if any information is gathered behind them the same should be communicated to the persons concerned and they should be given adequate opportunity to place their view points or cases. Several decisions, on this aspect, to which it is not necessary for me to refer to in detail which I have already mentioned in the arguments on behalf of the different parties were relied on by parties. There was another argument advanced in this case, namely, that in some cases notices had been issued to different political parties about the operation of recording of bargadars. I do not see any illegality per se in issuing notices to the political parties to enlist their support provided such notices are issued to all the political parties concerned and also to the Labour or the Kishan Organisations. But these notices to these organisations or parties cannot be and should not be substitutes for the individual opportunities that are required to be I given to the parties concerned whose rights would be affected by the I actual acts of recording. 68. It is in this light, in my opinion, I should formulate the answers to the different questions that I have framed before. My answer to first question is that a bargadar is one who is as defined in section 2(2) of the Act. My answer to the 2nd question is that that question would be determined in the manner I have indicated before, either under section 18 of the Act or under section 50, 51, 51A as indicated before. My answer to the 3rd question is I have explained the scope and effect of Section 21 B of the Act. I answer the fourth question by saying that there is no conflict in the way I have read between section 18 on the one hand and sections 50, 51 & 51A of the Act. My answer to the 3rd question is I have explained the scope and effect of Section 21 B of the Act. I answer the fourth question by saying that there is no conflict in the way I have read between section 18 on the one hand and sections 50, 51 & 51A of the Act. I answer the fifth question by saying that the amendments to the rules are not ultra vires and are not bad as such : The sixth question is answered by saying that section 21B is not ultra vires. The seventh question is answered by laying that section 60 of the Act is not ultra vires. My answer to the 8th question is that the circular of 5th of July, 1978 does not contain any administrative directions and the revenue officers are not bound by the same and should ignore the same and follow the provisions of the Act as indicated before and as I shall indicate hereinafter. Learned Additional Advocate General has stated that the circular of 5th July, 1978 only embodies the result of certain deliberations at workshop. So far as the 9th question is concerned the right to move an application under Article 226 of the Constitution would depend if there are genuine apprehension and the situation in which the apprehension would arise I have indicated before and I shall indicate in my ordering portion. My answer to the 10th question is that the quasi-judicial administrative authorities are entitled to gather informations in the manner contemplated by the amended rules provided reasonable and proper opportunities are given to rebut any informations gathered behind the back of persons to the persons concerned. If the procedure enjoined for recording of bargadars as framed under the rules and the Act and as explained by learned Additional Advocate General which I have recorded hereinbefore, are followed, the same do not infringe the principles of natural justice. So far as the 12th question is concerned, where the respondents have acted in recording the bargadars by not giving reasonable and proper opportunities either to the recorded owners or to the recorded bargadars the action of the respondents has been illegal. Regarding the 13th question I should say that certificate contemplated in Schedule A of the Act is of no legal effect and all authorities concerned should ignore the said certificates in acting upon them. Regarding the 13th question I should say that certificate contemplated in Schedule A of the Act is of no legal effect and all authorities concerned should ignore the said certificates in acting upon them. I am however, not concerned with the question whether Banks could act on those certificates in granting loan. So far as 14th question is concerned notices to different political parties are not bad as such or illegal provided these do not substitute notices and opportunities due to be given to the parties involved or whose rights are sought to be affected. My answer to the last question is that the reliefs that the petitioners are entitled depend upon the facts and circumstances of each case. 69. Now, before I deal with the actual orders to be passed I must notice that there are certain factual aspects of the matter to which my attention was drawn on behalf of the Government. Now, so far as the application in CR 8339(W) of 1978 is concerned learned Additional Advocate General submitted that there are five petitioners all of them posse-ss lands in Kumarkhali which is one of the mouzas in Annexure B. Petitioners appear to be members of one family possessing 71.71 acres of land. In matter no. 8348(W) of 1978 is concerned, only petitioners no. 53, 54 & 55 out of 57 petitioners have lands (8.88½ acres) in Purba Boyer Singh, which, is one of the mouzas in Annexure 'D'. In Annexure 'A' there are about 300 acres of land. So far as CR No. 8341(W) of 1978 is concerned petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8347 (W) of 1978 is concerned the petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8340 (W) of 1978 is concerned the petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8346 (W) of 1978 is concerned, petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8343(W) of 1978 is concerned, petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8342(W) of 1978 is concerned, petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8343(W) of 1978 is concerned, petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR 8342(W) of 1978 is concerned, petitioners have no land in any of the mouzas in Annexure 'B'. So far as CR No. 8344 (W) is concerned, petitioners are alleged to have lands in Gosaba, PS and only one evening meeting was alleged to have beer held. So far as CR 8345 (W) of 1978 is concerned the petitioners have no lands in Mouza 'B'. So far as Bhagyadhar Giri's matter is concerned I need not deal with the same as the same has already been disposed of. So far as CR No. 7641 (W) of 1978 is concerned the petitioners held 6.42 acres of land in rayati interest in mouza Madhunia. During K.B. stage, petitioner was recorded as bargadar in respect of 7.79. acres of land against buta plots excepting plot No. 496/2152 measuring 0.12 decimals. 70. During attestation villagers along with 4 to 18, raised objection as to recording of petitioner's name as bargadar at K.B. stage and they claimed to be actual cultivators as bargadars. They were recorded as bargadan in attestation stage-attested records not yet placed under draft publication U/s. 51 A(1). 71. So far as CR 10702(W) of 1978 is concerned, OPERATION BARGA has not been started according to learned Additional Advocate General in mouzas where the disputed lands are situated. Respondent nos. 5 to 14 have not yet applied. 72. So far as CR 10783(W) of 1978 is concerned petitioners 4, 5, 9, 10, 11, 12, 13, 14, 15 and 18 do not possess any land in Sahapur, Ballavpur, Jotragher, Sankarpur or Aliapur, which is the subject matter of notice-see Annexure 'B' of the petition and A/O para 8 at page 4. Petitioners 1, 2, 3, 7, 8, 16 & 17 possess one plot each in one or other mouza concerned have come with the application before cause of action has arisen, according to the respondents. The respondents, further, state that about 50 applications have been received but no enquiry could be held, according to the respondents, due to interim order. 73. So far as CR 10724(W) of 1978 is concerned, no bargadar have been made respondents. From general notification dated 13.12.78 petitioners came to know on 18.12.78 that interested persons would be recorded on 14.12.78. The respondents, further, state that about 50 applications have been received but no enquiry could be held, according to the respondents, due to interim order. 73. So far as CR 10724(W) of 1978 is concerned, no bargadar have been made respondents. From general notification dated 13.12.78 petitioners came to know on 18.12.78 that interested persons would be recorded on 14.12.78. Some persons were recorded as bargadar-but it is not clear from the assertions of the respondents whether the procedure enjoined by law has been followed. 74. So far as CR 10722(W) of 1978 is concerned, no bargadars have been made respondents. According to the respondents only general notice u/s. 57, 51 and 21 (2) have been issued but in the petition there is no mention whether actually any recording has been done. 75. So far as CR 10723(W) of 1978 is concerned the case of the respondents is same as above. 76. So far as CR. 10734(W) of 1978 is concerned the petitioner became surprised when he heard that respondent 6 had directed his employee to record name of bargadars in barga operation. According to the respondents there is no ca use of action. 77. So far as CR No. 10731(W) of 1978 is concerned, respondent 17 has passed order on 5.7.78 in which he directed all other respondents to record the names of all labourers as bargadars under landlord in way of 'Operation Barga' system and by this order respondents 14, 16 and 18 are declaring in the village to have been recorded bargadars on 20.12.78. 78. I may, however, incidentally mention that in case of Gourhari Bera's case the respondents have mentioned that operation was started as a result of the direction of the circular of the Board of Revenue dated 5th July, 1978. I make a mention of the fact because of the argument that the circular dated 5th of July, 1978 is of no legal effect made by the learned Additional Advocate General. 79. Having regard to the facts and circumstances of these cases and in the light of my findings on points of law I therefore direct as follows :- (1). That the respondents are authorised to settle the question who are bargadars in respect of the lands involved in these writ petitions by appropriate officers deciding that question. 79. Having regard to the facts and circumstances of these cases and in the light of my findings on points of law I therefore direct as follows :- (1). That the respondents are authorised to settle the question who are bargadars in respect of the lands involved in these writ petitions by appropriate officers deciding that question. Appropriate officer will be the officers mentioned in the West Bengal Land Reforms Act, 1955 either in the contingencies as I have enumerated under Section 18 or Section 50, Section 51 or Section 51A of the Act. Such decisions must, however, be upon notice as the relevant provisions of the law require. The particular mode of notices which are necessary at the particular stages or processes for preparing and publishing the records must be adhered to. The recorded owners or recorded bargadars must be given such opportunities for making representations as they are entitled to under the West Bengal Land Reforms Act, 1955 and the rules made thereunder and the different provisions of the general instructions for the revisional settlement operation as have been admitted by Learned Additional Advocate General in the argument before me and as I have noted before. I direct that a copy of the same handed over to me by Learned Additional Advocate General be kept on record as Exhibit "C" (2) Chapter VII, Schedule A of the West Bengal Land Reforms Act, 1955 and the relevant West Bengal Land Reforms Rule, 1965 as amended and as indicated before must be adhered to and in recording the bargadars I, further, direct that the disputes should be settled in the manner mentioned in the "dispute list form" as indicated by Learned Additional Advocate General, where such disputes arise, and which I make a part of this judgment and which is kept in the record as Annexure 'A' of this judgment. (3) When different areas are given to different bargadars the different plot numbers should be given and the land should be demarcated in the manner indicated by Learned Additional Advocate General, a model of which was also handed over to me which also I make as a part of my judgment as Annexure 'B'. 80. (3) When different areas are given to different bargadars the different plot numbers should be given and the land should be demarcated in the manner indicated by Learned Additional Advocate General, a model of which was also handed over to me which also I make as a part of my judgment as Annexure 'B'. 80. The concerned revenue officers are not prevented from gathering informations from any appropriate sources, but any informations so gathered must be communicated to the persons concerned, namely recorded owners or the recorded bargadars, before a decision is taken and they must be given reasonable opportunities to make any submission on these I points, Recorded owner means recorded owners or his heirs of successors. (4) The circular which is not even administrative direction in the communication dated 5th of July, 1978 must be ignored and only the relevant provisions of the Act and rules must be adhered to, (5) Any recording or settlement of bargadars on the advice of any local committee and without notice to the recorded owners and recorded bargadars and without giving recorded owners or the recorded bargadars reasonable opportunities of making reasonable representation and not as independent decision of appropriate officers as indicated before should be prevented in future and if any such decision has been made and if any recordings have been made in violation of the above procedure the same should be ignored and are hereby quashed. (6) The certificates given under the amended rules of Schedule A have no legal effect and cannot be taken cognisance of by any statutory authorities including the police authorities in taking any action in respect of any dispute over the land. The petitioners, where certificates have been given or where claims have been made by the bargadars on the basis of the certificates given will have right to prevent any action in any appropriate court of law on the basis of apprehended danger. As I am not concerned in there writ applications with the question as to how the banks would grant loans the aforesaid observations will not, however, affect the questions as to how the banks should be satisfied before granting loans. (7) These writ applications are disposed of with the aforesaid directions and the concerned officers will adjust the records in the light of the observations made as aforesaid. (7) These writ applications are disposed of with the aforesaid directions and the concerned officers will adjust the records in the light of the observations made as aforesaid. (8) I further direct the Secretary, Land Utilisation & Reforms and Land & Land Revenue Department, Government of West Bengal to communicate the ordering portion of this decision, containing the aforesaid directions to all concerned officers with the work of recording and settling the disputes of bargadars in writing within eight weeks from the receipt of the ordering portion of this decision by the office of learned Additional Advocate General. I, further, direct that the said Secretary, will file an affidavit to this Court within four weeks thereafter that he has so communicated these directions giving the particulars of the communication and the date of the communication. 81. In olden times the instinctive sense of values of the administrative authorities were sufficient safeguards to prevent in majority of cases injustice to the parties. Unfortunately, the faith in the individual instinctive sense of value of the officers concerned have to a very large extent eroded. It is, therefore, vital that an appropriate environmental sense of values should be created. If the recording of genuine bargadars are expedited in the true spirit of recording genuine claims of bargadars with justice and fair play there is no cause for apprehension and it is with this object that the aforesaid directions have been given. We are some times prone to for get that laws are more often than not implemented not by the coercive force of the state but by willing acceptance by the people at large and an efficient and equitable administration of any legislation to a very large extent enhances the prestige of that legislation. 82. There will be no order as to costs. These rules and writ applications are disposed of as above. The written arguments advanced by learned Additional Advocate General and some of the learned advocates for the petitioners be kept on file. In the written submissions submitted on behalf of the State the parties dealing with question of certificates are in formed as learned Additional Advocate General stated that I had taken exhaustive notes of this submissions on this point he was not submitting written submissions on this point. In the written submissions submitted on behalf of the State the parties dealing with question of certificates are in formed as learned Additional Advocate General stated that I had taken exhaustive notes of this submissions on this point he was not submitting written submissions on this point. 31.5.79 As learned Additional Advocate General stated that it would be difficult if only the ordering portion was conveyed to the Concerned officers without reference to the relevant portion of the Judgment for this purpose I extend on the prayer of the Govt. the time to convey from 4 weeks to eight weeks only.