State of West Bengal Vs. Sudhir
Chandra Ghose & Ors  INSC 285 (9 November 1976)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1976 AIR 2599 1977 SCR (2) 71 1976
SCC (4) 701
West Bengal Estates Acquisition Act
1953---Section 2(h)---Ss. 3, 4, 5--Encumbrance--Meaning of Interpretation of
statutes construction of land reforms statute--Whether amplitude can be cut
Certain estate in a village was acquired
under the West Bengal Estates Acquisition Act, 1953. Section 3 of the said Act
provides that the provisions of that Act shall have effect notwithstanding
anything to the contrary contained in any other law or contract expressed or
implied or any instrument or any usage or custom. Section 4 authorities the
State Government by a notification to declare that all estates and the rights
of every intermediary in each such estate shall vest in the State free from all
Section 5 provides that on publication of
such a notification the estates to which the declaration applies shall vest in
the State free from all encumbrances. Section 2(h) defines an encumbrance as
" 'in-cumbrance' in relation to estates
and rights of intermediaries therein does not include the rights of a raiyat or
of an under-raiyat or of a nonagricultural tenant, but shall, except in the
case of land allowed to be retained by an intermediary under the provisions of
section 5, include all rights or interests of whatever nature, belonging to
intermediaries or other persons, which relate to lands comprised in estates or
to the produce thereof." The respondents, some of the villagers, filed a
suit against the appellant in a representative action claiming that the
agrarian community in the village has always been enjoying the right of pasturage
over the suit estate and that the said right survived in spite of the
notification under the Act. The appellants contended that no such right
survived after the publication of the notice and in any event, even if such a
right amounted to an in-cumbrance it came to an end by virtue of section 5 of
the Act. According to the respondents the said right was not an in cumbrance
within the meaning of the said Act and according to the appellant it was an in-cumbrance.
The suit and the appeal filed by the respondents were dismissed. The High,
Court, however, allowed the Second Appeal filed by the respondents.
Allowing the appeal by Special Leave,
HELD: (1) The great socio-economic objective
of the Act if it is to be successful as a land reform measure requires that all
the rights must vest fully in the State. [74A-C] (2) From the perspective of
land reform objective, a specious meaning is derived by the definition of in-cumbrance.
Ordinarily the court cannot cut down the definitional amplitude given in the
statute and there is no reason for departing from the said golden rule. The
Legislature used the expression in-cumbrance in its widest amplitude to cast
the net wide so as to catch all rights and interest whatever be their nature.
[74C-G] (3) There is no substance in the contention of the respondent that the
collective, though uncertain body of villagers cannot be brought within the
expression "or other persons". The expression "intermediaries or
persons other than intermediaries" embraces all persons, and the villagers
who seek to exercise the right of grazing over the intermediaries' lands are
plainly "other persons".
[73-G-H] (4) The conclusion of the High Court
that the grazing right is a customary right does not carry the case of the
respondents any further because the provisions of section 3 operate
notwithstanding any usage or custom to the contrary.
[76-D-F] 72 The Court observed that the
present appeal raises a human problem and as 'grazing' right is an important
aspect of agrestic life the State should try to provide alternative grazing
grounds to villagers when such rights are taken away [76A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1753 of 1968 Appeal by Special Leave from the Judgment and Order/Decree
dated the 6th September, 1967 of the Calcutta High Court in Appeal from
Appellate Decree No. 689 of 1964) S.C. Majumdar and G.S. Chatterjee for the
Sukumar Ghose for Respondents 1-3.
The Judgment of the Court was delivered by
KRISHNA IYER, J. This appeal, by special leave, from the judgment of a Single
Judge. of the Calcutta High Court, raises a single legal issue with human
overtones. The State of West Bengal is the appellant at this the fourth and
final deck of the judicial pyramid, having won the case as the 5th defendant at
the earlier stages of the litigation but lost in the High Court. The question,
shortly put, is whether the vesting of estates in the State under ss.3, 4 and 5
of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954)
(abbreviated for reference hereinafter as the Act) extinguishes the right of
cattle grazing enjoyed by villagers in the grasslands of such estates on the.
ground that such right amounts to 'in-cumbrance'
within s.2(h) of the Act.
The facts An estate in village Vadurerpati
Madhabpur in the district of Hooghly was among those vested in the State on a
notification under s.4 of the Act, free from all encumbrances as provided in
ss.4 and 5. The Plaintiffs-respondents are some of the denizens of the said
village and, in this representative action, claim that the agrarian community
there have always enjoyed the right of pasturage over the suit estate and pray
for the relief of injunction restraining the 5th defendant-appellant from
interfering with the exercise of the right to graze, as enjoyed before. The
State, however, denies the survival of such a right even if it did exist on the
score that the fatal impact of s.5 has terminated all in-cumbrances on the
estate and the right to graze cattle belonging to the villagers is but an
"in-cumbrance' as defined in s.2(h) of the Act. Thus the bone of
contention between the parties is whether the collective claim of the villagers
to graze their cattle on an estate vested in the State under the Act falls
within the definition of 'in-cumbrance'. If it does, the suit deserves to be
dismissed but, if it does not, the High Court's view is correct and the case
has to be sent back for consideration on the merits. We may mention, for
completeness' sake, that defendants 1 to. 4 are persons in whom the estate has
been allegedly settled by the State, although this position is not clear or
perhaps is denied by the State itself.
73 The issue, in a nut-shell, is as to what
is an 'in-cumbrance'. But this question, in the light of the definition which
we will presently reproduce, resolves itself into two issues which will be
self-evident as we read the provision:
"2(h) In this Act unless there is
anything repugnant in the subject or context.-x x x (h) 'in-cumbrance' in
relation to estates and rights of intermediaries therein does not include the
rights of a raiyat or of an under-raiyat or of a non-agricultural tenant, but
shall, except in the case of land allowed to be retained by an intermediary
under the provisions of section 6, include all rights or interests of whatever
nature, belonging to intermediaries or other persons, which relate to lands
comprised in estates or to the produce thereof." And so the two gut
(i) whether a right to graze cattle in the
estate of another falls within the sweep of the comprehensive expression 'all
rights or interests of whatever nature'; and (ii) whether the members of a
village as a collective, though fluctuating body, are covered by the words
'intermediaries or other persons'.
While the two courts at the ground and
first-floor level decided the two points above-mentioned in favour of the
State, the High, Court, after a long and discursive discussion, the
labyrinthine course of which need not be traversed by us, reached the
conclusion that the right in question was a public right belonging to an
unspecified and varying group---not a specific private interest vesting in
specified persons--and therefore left untouched by ss. 3 to 5 and uncovered by
s.2(h). Is that view sustainable on a correct construction of the provision?
Putting a literal and teleological construction on the definition of 'in-cumbrance'
we have hardly any doubt that the legislature has used language of the widest
amplitude' to cast the net wide and to catch all rights and interests whatever
be their nature. Indubitably, the right to graze cattle in .an estate is a
restrictive interest clearly falling within the scope of the provision. Indeed,
so designedly limitless an area of rights and interests of whatever nature is
included in the special definition of 'in-cumbrance' for the purposes of the
Act, that to deny the 'familiar rurally enjoyed right of pasturage as covered
by it is to defeat, by judicial construction, the legislative intendment.
Likewise, there is no substance in the contention that the collective, though
uncertain, body of villagers cannot be brought within the expression 'or other
persons'. The connotation of those words in the context is 'intermediaries or
persons other than intermediaries'. This embraces all persons other than
intermediaries and the villagers 74 who seek to exercised the right of grazing
over the intermediaries' lands are plainly 'other persons'. There is no warrant
for the limited signification imputed to those words by counsel for the respondent
when he argues that they refer to particular, definite and known individuals.
An unwarranted narrowing of meaning cannot be attributed where there is no
contextual compulsion or fulfillment of statutory purpose thereby gained. On
the other hand, the great socio-economic objective of the Act argues itself. If
it is to be successful as a land reform measure, the precondition is that the
estates must vest the intermediaries' entire rights fully--not moth-eaten by
carving out many little interests out of the plenary ownership of the State.
This intendment is further manifest from ss.
4 and 5 which we set out below along with s. 3:
"s.3. The provisions of this Act shall
have effect notwithstanding anything to the contrary contained in any other law
or in any contract express or implied or in any instrument and notwithstanding
any usage or custom to the contrary:
x x x x "s.4.(1) The State Government
may from time to time by notification declare that with effect from the date
mentioned in the notification, all estates and the rights of every intermediary
in each such estate situated in any district or part of a district specified,
in the notification, shall vest the State free from all in-cumbrances.
X X X "s.5(1) Upon the due publication
of a notification under section 4, on and from the date of vesting(a) the
estate and the rights of intermediaries in the estates, to which the
declaration applies, shall vest in the State free from all in-cumbrances; in
particular and without prejudice to the generality of the provisions of this
clause, every one of the following rights which may be owned by an intermediary
shall vest in the State, namely:-x x x x According to ss.4 and 5, the vesting
shall be 'free from all in-cumbrances'. In short, from the perspective of landreform
objectives, a specious meaning is derived by the definition in s.2(h).
Ordinarily, the Court cannot cut down the definitional amplitude given in the
statute and we see no valid reason for departing from this golden rule.
The end product of this discussion is that
the appeal must be allowed and, the suit dismissed. Even so, we have been taken
on a conducted tour by counsel on both sides more or less covering and
controverting the points which have appealed to the High Court.
Shri Ghose, for the respondent, pressed
before us a contention based on rural economics which has considerable force in
a general 75 way, but has none from the legal angle. India lives in her
villages not in her cities. This truth has been highlighted by the Father of the
Nation, but insufficiently remembered by our law-makers. The agrarian
community, with a cattle economy, rates high in the agrestic scheme the right
of pasturage and so it is a human problem for the villagers and their very life
if the State snatches the valuable right of pasturage which makes the village
economy viable, in the name of. estate 'abolition, without providing
alternative village commons.While we are moved by this submission and feel that
this is an unintended consequence of comprehensive vesting of estates in the
State, we have only to observed that the State, in our expectation, should,
mindful of its welfare obligation, consider this facet of the problem and try
to provide grazing grounds in villages where the impact of the Act has deprived
the community of the right of pasturage. Even if the consequence of abolition
of intermediary rights leads to a baneful by product from the economic point of
view, we,as Judges, are functionally committed to construction of the statute
in the terms the legislature has cast it.
In this context our non-legal reaction to the
loss of grazing rights by the villagers is reinforced by the observations of
Sarada Charan Mitra in his Tagore Law Lectures, 1895, on the Land Law of
Bengal.He observed at p.495 (II Edition):
"Pasturage is, in the large majority of
cases in this country, public, in the sense that they belong to or are capable
of being used by a community or classes of individuals in a village. Such
rights are necessary for the preservation of society." x x x x "To an
agricultural population, pasture land is of the utmost importance and there is
seldom a village in Bengal 'which has not a large piece of land attached to it
for the grazing of cattle belonging to its inhabitants." The High Court judgment
"He (Justice Sarada Charan Mitra) then
refers to Verse 237, Chapter VIII in Manu and also refers to Yajnavalkya. Hence
such customary right has been recognised in India from very early times."
Our conclusion cannot therefore be deflected by the unfortunate deprivation,
especially because we part with this judgment hopefully, counsel for the
appellant having assured the Court that these observation will be communicated
to his client.
This simplistic disposal of the disputed
points may not be fair to the High Court, especially because the learned Judge
has, in an avoidably erudite survey of Indian and English authorities
considered two vital issues. He has discussed at some length the plurality of
What is the nature, in terms of welt-known
interests or rights in or over property, of the right of pasturage ? Is it an
easement under the Indian Easements Act or the Indian Limitation Act ? Is it
profit a prendre and, if so, does it become a right or in76 terest within s.
2(h) of the Act ? Can an easement or right of common pasturage be claimed by a
fluctuating body of persons--the villagers ? Is such a customary right recognised
in Indian Law ? The learned Judge has followed up the discussion on these
points with a further eloborate examination of one other principal issue and
two subsidiary points which, may be expressed in his own words:
"The question is whether customary right
'enjoyed' by the villagers is a right belonging to other persons relating to
the land compensed in the estate or to the produce thereof. This leads to the
consideration of two matters: (a) whether the villagers are other persons
within the meaning of section 2(h) of the Estates Acquisition Act; and (b)
whether such customary right 'belongs' to the villagers or to any individual in
the village." We have been taken on a lengthy tour (as we have already
mentioned) of these areas of law by counsel on both sides but we do not think
it necessary to cover them in this judgment at any length. The conclusion of the
learned Judge is that a grazing right or right of pasturage subject to the
local requirements of a valid custom, is local law in India.
English and Indian decisions and other text
book citations have been referred to by the High Court and read before us, but
whether such a customary right is law or not it cannot affect the question
before us for the simple reason that s.3 of the Act expressly says that the
provisions of the Act 'shah have effect notwithstanding anything to the
contrary contained in any other law .... and notwithstanding any usage or
custom to the contrary.' Undoubtedly, the plenary vesting of the entire rights
of the intermediary under ss. 4 and 5 is cut down by a customary right which
reduces the ambit of the intermediary right and therefore is contrary to the
provisions of' s.5. Moreover, when ss.4 and 5 declare unmincingly that the
vesting shall be free from all in-cumbrances, a customary right of grazing
which clearly is an in-cumbrance runs counter to this clause. Certainly the
definition of 'in-cumbrance' cannot take in a right or interest unless it is in
favour of intermediaries, or other persons. The learned Judge has considered
whether villagers constitute a corporation or person, whether fishermen in a
body living in a village can be said to be persons.
He has also reasoned that since no
compensation is paid by the State under the Act for the taking of the customary
rights 'such provision for vesting would be void under the Constitution'.
Section 161, 183 of the Bengal Tenancy Act and ss.2(p), 5(aa)and 6(h) have all
been considered in a learned chain of reasoning. Reliance has also been placed
on rulings and text-books. As earlier' stated, we are disinclined to delve into
the details of this discussion.
The villagers are clearly 'other persons' and
none of the ruling cited before us or referred to by the learned Judge has
considered this point. especially in the context of the extremely wide language
used in s. 2(h) of the Act.
It is inconsequential to say that the
customary right is law. Equally unhelpful is the finding that the right to
graze vested in villagers is a public or quasi-public right.
Even if it is, once it falls within the
definition of 'in-cumbrance' paring down the totally of intermediaries' rights.
s. 3 hits it down.
77 The conclusion is irresistible that the
State's defence is impregnable. The appeal therefore deseves to be allowed and
the suit dismissed which we do, directing the parties to bear their costs throughout.
Once again we hark back to the human factor
of taking away an invaluable right of humble villagers viz., the right of
pasturage and feel confident that a Welfare State, deeply concerned with
preservation of. village economy, will not hesitate to provide fresh pastures.
for the preservation of agrestic life and agricultural prosperity.