Mir Fakir Mohd. Vs. State of West
Bengal  INSC 33 (15 February 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1978 AIR 1072 1978 SCR (3) 9 1978
SCC (2) 36
West Bengal Estate Acquisition Act, 1954 s. 6
(1)(f)--Bamboo garden or banana plantation whether an 'Orchard' within the
meaning of s. 6(1)(f) of the Act entitling an intermediary, to retain the land
The petitioner's claim, by virtue of the,
provisions of s. 6(1)(f) of the West Bengal Estate Acquisition Act, 1954, for
his entitlement, as an intermediary, to retain the land in which he has raised
in addition to mango and Jack fruit trees, bamboo clumps and also
banana-plants, was allowed by the Courts below but rejected by the Calcutta
High Court in appeal by the State of West Bengal. The High Court held that
though cultivated bamboo garden would fall within the definition of
'Agricultural land' in s. 2(b) of the Act, it cannot in any view be called an
'Orchard' within the purview of s. 6(t)(f) of the Act. It further held that a
banana plantation is not an 'Orchard' because banana plants are not
Dismissing the special leave petition the
HELD : 1. In view of clause (p) of Section 2
of the West Bengal Estate Acquisition Act, 1954 read with s. 14K(e) of the West
Bengal Land Reforms Act, the existence of cultivated fruit trees on a compact
area, is central to the connotation of 'Orchard'. A tree is "a perennial
plant having a self-supporting woody main stem or trunk (which usually develops
wood branches at some distance from the ground), and growing to a considerable
height." [10.H, 11 A- B] (2) A plant to come within the connotation of
'tree' must have two essential characteristics : (a) It must be perennial and
not seasonal; and (b) Its main stem must be "woody" and not
herbacious or pulpy. A banana plant lacks both these characteristics. It is not
a perennial plant, but is more in the nature of seasonal crop lasting for one
or one and a quarter years. Once the :plant yields fruit, it becomes useless
and does not yield any further fruit.
Further, its stem is not "woody"
but "fleshy" or 'herbacious". A banana plant, therefore, cannot
be regarded as a fruit-tree and a banana plantation is not an 'Orchard' within
the contemplation of s. 6(1)(f) of the Act. [11 B-C, E]
CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) No. 2107 of 1977.
(From the Judgment and Decree dt. 21-7-76 of
the Calcutta High 'Court in Appeal from Appellate Decree No. 1658 of 1965).
Purshottam Chatterjee & Rathin Das for
S. C. Majumdar & G. S. Chatterjee for the
The order of the Court was delivered by
SARKARIA, J. The principal question that has been mooted before us in this
petition for special leave to appeal under Article 136 of the Constitution,
against an appellate judgment dated 21st July, 1976 of the High Court at
Calcutta, is, whether a bamboo garden or banana plantation is an 'Orchard'
within the meaning of Section 6(1) (f), of the West Bengal Estate Acquisition
Act, 1954 (hereinafter referred to 2-211 SCI/78 10 as the Act). The material
portion of Section 6 of the Act reads as under :
"6(1) Notwithstanding anything contained
in Section 4 and 5, an intermediary shall except in the cases mentioned in the
proviso to sub- section (2) but subject to other provisions of that
sub-section, be entitled to retain with effect from the date of vesting- (f)
subject to the provisions of subsection (3) Land comprised in tea garden or
orchard or land used for the purpose of live stock breeding, poultry farming or
dairy." The petitioner claims himself to be an intermediary. The High
Court has held (reversing the judgments of the courts below) that a cultivated
bamboo garden would fall within the definition of 'Agricultural land' in
Section 2(b) of the Act and cannot in any view be called an 'orchard' within
the purview of Section 6(1) (f) of the Act. It further held that a banana
plantation is not an 'orchard' because banana plants are not fruit- trees.
Mr. Purshotham Chatterjee, appearing for the
petitioner contends that 'orchard' has not been defined in the Act, and we
must, therefore, interpret the expression 'orchard, in its popular sense and
not in the strict botanical sense, as the High Court has done.
An 'orchard', it is argued; in the broad
Dictionary sense, means a garden of fruit plants, or fruit trees, and a banana
plant, according to the Concise Oxford Dictionary, is a "fruit-tree."
As against this, Mr. Majumdar, appearing for the Respondent State, submits that
a banana plant is not a 'tree' but a herbacious plant.
We are unable to accept the contention
canvassed on behalf of the petitioner.
Section 2(p) of the Act provides :
" (p) Expressions used in this Act and
not otherwise defined have in relation to the areas to which the Bengal Tenancy
Act, 1885, applies, the same meaning as in that Act and in relation to other
areas meaning as similar thereto as the existing law relating to land tenures
applying' to such areas, permits." Now, Section 14K(e) of the West Bengal
Land Reforms Act (as amended) defines an 'Orchard' to mean :
"A compact area of land having fruit
bearing trees grown thereon in such number that they preclude; or when fully
grown would preclude, a substantial part of such land from being used for any agricultural
purpose." In view of clause (p) of Section 2 of the Act, it will not be
wrong to look to this definition in the Land Reforms Act, for guidance. This
definition, it will be seen, substantially conforms to the dictionary meaning
of the term 'orchard'. According to the Oxford Dictionary, 11 the modern
connotation of 'orchard' is "an enclosure with fruit trees", or
"an enclosure for the cultivation of fruit trees". Webster's New
World Dictionary, also, gives its meaning as "an area of land, generally
enclosed, devoted to the cultivation of fruit trees, nut trees,". Thus,
the existence of cultivated fruit trees on a compact area, is central to the
connotation of 'orchard'. The question before us, therefore, resolves into the
issue, whether a banana plant is a 'tree' ? A 'tree', according to the Shorter
Oxford Dictionary, is "a perennial plant having a self-supporting woody
main stem or trunk (which usually develops wood branches at some distance from
the ground), and growing to a considerable height.
Thus, for a plant to come within the
connotation of 'tree', it must have two essential characteristics : (a) It must
be 'perennial and not seasonal; and (b) Its main stem must be 'woody' and not
herbacious or pulpy.
A banana plant lacks both these characteristics.
It is not a perennial plant, but is more in the nature of a seasonal crop
lasting for one or one and a quarter years. Once the plant yields fruit, it
becomes useless and does not yield any further fruit. Further, its stem is not
'woody' but 'fleshy' or 'herbacious'.
Banana plant, according to Webster's
Dictionary, is "a tree- like perennial herb of the genus Musa plant with
soft herbacious stalk". Oxford Dictionary, no doubt, loosely describes it
as a 'fruit-tree' belonging to the genus Musa sapientum, but it also concedes
that it has no 'woody' stem or trunk but only a soft herbacious stalk. The
Webster's Dictionary appears to be more correct when it uses the word
'tree-like' for a banana plant.
Thus considered, a banana plant cannot be
regarded as a fruit tree. Therefore, a banana plantation is not an 'orchard'
within the contemplation of Section 6(1) (f) of the Act.
We are, therefore, of opinion that the High
Court was right in deciding that point against the petitioner. There is no
ground to interfere with its decision. The petition fails and is dismissed.