West Bengal Vs. Atul Krishna Shaw & Anr
 INSC 258 (28
K. Ramaswamy, K. Kasliwal, N.M. (J)
1990 AIR 2205 1990 SCR Supl. (1) 91 1991 SCC Supl. (1) 414 1990 SCALE (2)406
Acquisition Act, 1953: Sections 2(i), 4(1), 6(1) (e)--Explanation, 44(2a) and
vesting Estates and rights of Intermediaries in the State--Right of Intermedi- aries
to retain title and possession in respect of `Tank fisheries'--Crucial date for
establishing that disputed land was used for pisciculture is the period of
vesting-Existence of fishery subsequent to vesting held irrelevant.
Law: Duty to give reasons--Primary au- thority-Appellate authority--Appellate
Tribunal reversing order of primary authority--Appellate authority should
assign its own reasons as to disagreement with reasons and findings of primary
authority--Appellate Tribunal's order based on conjectures and surmises--Held
order is vitiated by patent error of law apparent on the face of record.
Review: Appellate authority--Findings of fact based on no evidence or based on
conjectures and surmises--Power of Court to interfere, appreciate evidence and
record its own findings of fact.
to reason is indispensable part of sound system of judicial review.
and phrases: 'Tank fishery'--'Pisciculture'--Meaning of.
land belonging to the respondent intermediaries comprising of certain plots
stood vested in the State of West Bengal by
operation of a Notification issued under Section 4(1) of the West Bengal
Estates Acquisition Act, 1953. Since the plots were recorded as 'tank
fisheries' (used as pisciculture), they stood excluded from the purview of the
vesting Notification under Section 6(1)(e) of the Act and preserved to the
the primary authority--the Assistant Set- tlement Officer--initiated suo moto
proceedings by issuing notice to the respon- 92 dents under Section 44(2a) of
the Act for correction of classification of lands on the ground that the plots
were wrongly recorded as fishery plots. The respondents objected to
reclassification of the lands by contending that in 1952 they were granted Dakhilas
to the said land by one `B', the Principal landlady, and thereafter they have
been cultivat- ing pisciculture on the said plots of the land and conduct- ing
fishery business. The Assistant Settlement Officer rejected the claim of the
respondents and ordered reclassi- fication of the plots. The respondents filed
an appeal before the Tribunal (District Judge) under section 44(3) of the Act.
The Appellate Tribunal reversed the order of the Assistant Settlement Officer
and confirmed the original classification of the plots.
the decision of the Appellate Tribunal, the State filed a writ petition in the
Calcutta High Court which dismissed the petition in limine.
appeal to this Court it was contended on behalf of the State: (i) that the
Appellate Tribunal had reversed the findings without considering the validity
of the reasons recorded by the Assistant Settlement Officer; (ii) that the
Appellate Tribunal had taken irrelevant factor or non-exist- ing factors into
account and thereby its findings were based on no evidence and hence vitiated
behalf of the respondents it was contended that since the Appellate Authority
has recorded the findings of fact that pisciculture was in existence as on the
date of vesting the Supreme Court cannot interfere with the findings of fact
recorded by the Appellate Court, particularly, when the High Court did not
choose to interfere with the finding.
the Appeal, this Court,
1. Giving of reasons is an essential element of administration of justice. A
right to reason is, therefore, an indispensable part of sound system of
decision is not only for the purpose of showing that the citizen is receiving
justice, but also a valid discipline for the Tribunal itself. Therefore,
statement of reasons is one of the essentials of justice. [99C-D]
The appellate authority in particular a trained and experienced District Judge
is bound to consider the entire material evidence adduced and relied on by the
parties and to consider whether the reasons assigned by the primary authority
is cogent, relevant to the 93 point in issue and based on material evidence on
record. The appellate authority being final authority on facts, is enjoined and
incumbent upon it to appreciate the evidence;
the reasoning of the primary authority and assign its own reasons as to why it
disagrees with the reasons and findings of the primary authority. Unless
adequate reasons are given, merely because it is an appellate authority, it
cannot brush aside the reasoning or findings recorded by the primary authority.
the appellate authority had appreciated the evi- dence on record and recorded
the findings of fact, those findings are binding on this Court or the High
Court. By process of judicial review this Court cannot appreciate the evidence
and record its own findings of fact. If the find- ings are based on no evidence
or based on conjectures or surmises and no reasonable man would, on given facts
and circumstances, come to the conclusion reached by the appel- late authority
on the basis of the evidence on record, certainly this Court would oversee
whether the findings recorded by the appellate authority is based on no
evidence or beset with surmises or conjectures. [99A-C]
the instant case the Appellate Tribunal disre- garded the material evidence on
record, kept it aside, indulged in fishing expedition and crashed under the
weight of conjectures and surmises. The appellate order is, there- fore,
vitiated by manifest and patent error of law apparent on the face of record.
The order of Appellate Tribunal is quashed and the order of Assistant
Settlement Officer is restored. [103F-G; 104D]
Tank fishery means the lands being used for piscicul- ture or any fishing in a
reservoir or storage place whether formed naturally or by artificial
contrivance as a permanent measure except such portion of embankment as are
included in a homestead or in a garden or orchard to be tank fishery.
lands occupied by pisciculture or fishing stand pre- served to the
intermediaries and thus stands excluded from the operation of sections 4 and 5
of the West Bengal Estates Acquisition Act, 1953. But the crucial date for
establish- ing, as a fact that the pisciculture was being carried on in the
disputed land is the period of vesting. The existence of fishery subsequent to
that period is not of any relevance.
101E] Chamber's 20th Century Dictionary, page 829; Webster comprehensive
Dictionary, Vol. II and Stroud's Judicial Dictionary, Vol. II 4th Edn., page
1051, referred to. 94
the instant case the respondents did not produce before the Assistant
Settlement Officer either post or pre- record till date of vesting to establish
that from 1952 to 1955-56 i.e. from the date of obtaining settlement till date
of vesting, the lands were recorded in settlement records as pisciculture of
fishery. Therefore, there is no documentary evidence to establish that the
lands were being used, on the date of settlement or also on the date of
vesting, as pisci- culture or fishery. [101F; 102A]
Admittedly the High Court did not go into any of the questions raised by the
appellant in the writ petition. It summarily dismissed the writ petition. The
High Court com- mitted error of law in dismissing the writ petition in limine.
APPELLATE JURISDICTION: Civil Appeal No. 1422 of 1973 From the Judgment and
Order dated 5.7.1971 of the Calcutta High Court in Civil Order No. 1826 of
Ray, G.S. Chatterjee and D.P. Mukherjee for the Appel- lant.
Ranjan Mukherjee, N.R. Choudhary, Somnath Mukherjee and P.K. Moitra for the
Judgment of the Court was delivered by K. RAMASWAMY, J. This appeal by special
leave under Art. 136 of the Constitution arises against the order dated July 5,
1971 made by the Calcutta High Court in Civil Order No. 1826 of 1971 dismissing
the writ petition in limine. The material facts are that the lands of Hal Plot
Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220, 2225. 2226, 2228,
2229, 2232, 2233, 2234, 2236 and 2239 of Mouza Kisho- rimohanpore, J.L. No.
168, P.S. Jaynagar were recorded in the final Khaitan Nos. 143 and 144 of J.L.
No. 168 as "Tank Fishery" (being used for pisciculture) and by
operation of s. 6(1)(e) of West Bengal Estates Acquisition Act 1 of 1954, for
short 'the Act' stand excluded from its purview. The Asstt. Settlement Officer
initiated suo moto proceedings on May 14, 1968 that they have not been properly
classified and prima facie require correction of classifications of those
lands. Accordingly, he drew up the proceedings under s.44(2A) of the Act,
issued notice to the respondents who are brothers, intermediaries. They filed
their written objections and 95 appeared through counsel. They also filed the
documents, examined three witnesses apart from themselves. On behalf of the
State one Mr. Ranjit Kumar Dutta, Revenue Officer.
Settlement was examined. The objections raised by the respondents are that the
lands originally belong to Smt. Banodamayee Dasi, Superior Landlady, who
granted to them dakhilas Nos. 9 and 10 in the year 1359 B.S. i.e. 1952 A.D.
they have been cultivating pisciculture in the said lands. They got embankment
raised around the land. They have been conducting fishery business. In the
fields survey the property was recorded in their name as the occupiers. On
account of the injunction issued 'by the High Court the attestation in the
original settlement was not effected.
they approached the Junior Land Revenue Officer for receipt of the rents, after
due enquiry by endorsement dated April 30, 1958 A.D., the Tehsildar made an endorsement on the body of the
receipt "for Pisciculture". They were con- ducting fishery in a large
scale. They had applied to the Chief Minister Dr. B.C. Roy for a loan of Rs.25,000.
An endorsement on the application was made by the concerned Secretary. When the
miscreants sought to disturb the embark- ments, they made a complaint to the
police, who initiated action in this regard. Agricultural Income-tax Department
levied on them income-tax relying on pisciculture being done by the
Settlement Officer considered the entire evidence on record in great detail
like Civil Court and held that the three witnesses examined in proof of the
respond- ents conducting pisciculture in the disputed plots of lands are
interested and brought up witnesses for the detailed reasons given in support
thereof; the respondents did not produce the report of the Junior Revenue
Officer who direct- ed to accept the rents from the respondents. Admittedly,
all the lands stood vested in the year 1955-56 in the State by operation of the
notification issued under s. 4(1) of the Act. Though the settlement was stated
to have been obtained from the Principal Landlady in the year 1952 (1359 B.S.),
they did not produce any pre or post settlement records for the period upto
2955-56, the year of vesting, to establish that the disputed lands are recorded
as tank fishery. Mr. R.K. Dutta examined on behalf of the State stated that he
made local inspection on April 11. 1968 A.D. and found recorded the class of
land in 18 days (plots). Serial Nos. 2202, 2204, 2206. 2209, 2210, 2212, 2214,
2219, 2220.2225. 2226. 2228, 2229, 2232, 2233, 2236 and 2239 within that Mouza.
The present Days (Plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are
small Dobas i.e. "ponds" and he did not find any sign of pisciculture
in those plots. Plot Nos. 22 10, 2209, 2233 and 2234 are blind canals. There
was no connection whatsoever of those plots with river or big canals.
96 He stated
that there was water within those days (plots), but he did not find any sign of
pisciculture therein. He did not find any water in plot Nos. 2202, 2232, 2204,
2214, 2236, 2239, 2228 and 2226 either existing or drained in those plots. Danga
(elevated land) "Layek Jangal Bheter" (like jungle inside). "Layek
Jangal" (jungle outside) and there was no water at all. He also made local
enquiries from other persons in the neighbourhood and they testified to the
same fact. He admitted that adjacent to these plots there were two plots,
namely, plot Nos. 2201 and 2235, but outside the disputed lands wherein pisciculture
was being carried out in those plots at the time of inspection. He also stated
that the people examined by him have stated that till date the lands remained
in the same condition. In the settlement plan (map) the plots were not
classified as pisciculture.
two plots i.e. 2201 and 2235 were classified as pisci- culture.
be stated at this juncture that though Mr. Dutta was subjected to gruelling
cross-examination at great length on the nature of pisciculture and characterstics
etc. as regards the existence of the condition of the lands at the time of his
inspection and that he did not find any trace of carrying pisciculture, no
cross-examination was directed nor was suggested to the contrary. The Asstt.
Settlement Officer after consideration of the entire evidence found that the
respondents claimed to have started fishery after obtaining settlement from
landlady in the year 1952, they admitted that Khasra enquiry was conducted in
the year 1954 (1361 B.S. ) in their presence and examined witnesses. The
Enquiry Officer did not enter in the Khasra record that any pisci- culture was
being carried on in any disputed plots except plot Nos. 2201 and 2235. On the
other hand he noted that there is no fishery in any of those plots except those
two specified plots. The vesting of plots under the Act took place in the year
1955-56. Except the receipt issued by the Tehsildar, no documentary evidence of
payment of rent has been produced. The Tehsildar had no business to write on
the receipt "for pisciculture", nor record of enquiry made by Junior
Land Revenue Officer in this regard was produced. It is, therefore, clear that
in the Khasra enquiry it was not recorded that the suit plots are fishery and
in none of the plots it was recorded that any pisciculture was being con-
ducted. The attestation took place in July 1959, i.e. after seven years from
1359 B.S. (1952) the year so settlement and three years from the date of
starting the so called fishery.
documentary evidence except the solitary receipt which was rejected by the Asstt.
Settlement Officer was produced to show that any pisciculture was being
conducted. The receipt given by the Tehsildar is obviously to accommodate the
respondents. There is no sufficient 97 proof of laying any road to carry the
fish from the said plots. Sri Atul Kumar Sahoo, one of the respondents, when
was examined as a witness admitted it. Admittedly, fishery was carried out in
plot Nos. 2201 and 2235 which are linked up with river Alian Khal with tide but
they are not part of lands in dispute. None of the plots which are subject
matter of the suit is linked up with river or any big canal with tide.
regard to making an application to the Chief Minis- ter the copy has not been
produced. There is no evidence whether these plots of lands having been
mentioned in that application. Since, admittedly, the respondents are having
fishery in plot Nos. 2201 and 2235, it was likely that the loan application
would relate to those plots. The total extent of the disputed land is about 550
Bighas. Even ac- count books showing income and expenditure of fishery were not
produced, though time was allowed to produce the docu- ments more than once.
Some lands are dry lands and some lands are with the shrubs inside river
embankment and out- side. So the question of fishery over those plots does not
arise. Only to refute this factual situation the respondents tried to patch it
up by saying that these plots were dried up for some months in every year. But
they have failed to prove the existence of any fishery over those plots by
adducing sufficient and reliable evidence. When there is no evidence to show
the existence of fishery in any of the disputed plots, it is obvious that plots
were wrongly re- corded as fishery. Primary authority considered the oral
evidence and rejected it for valid reasons and ordered that the classification
of plot Nos. 2202, 2239, 2225, 2232, 2204, 22 10, 2234, 22 14. 2236, 2228 and
2226 in. Hal Kha- tian Nos. 134 and 144 within Mouza Kishorimohanpore, J.L. No.
168, P.S. Jaynagar as recorded as "Ghert" and piscicul- ture in
column No. 23 should be deleted and instead the classification of plots Nos.
2202 and 2209 should be record- ed as 'Layek Jungle Outside' plot Nos. 2202,
2204, 2236 and 2228 should be recorded as 'Layek Jungle Outside'. Plot Nos.
2201, 2234 should be recorded as 'pond', 22 14 and 2226 should be recorded as 'Danga'.
Recording in column No. 23 to the effect 'pisciculture' in plot Nos. 2209,
2229, 2206, 22 12, 22 19, 2233 and 2220 should be deleted.
this order an appeal was filed before the Tribu- nal (IXth Addl. District
Judge, Alipore) under s. 44(3) of the Act which by Judgment dated March 4, 1971
in E.A. No. 49 of 1968 in one paragraph with cryptic order assuming the role of
an administrator reversed the order of the A.S.O.
conclusions, without discussing the evidence recorded by the Appellate Judge
are that in the C.S. Khatain he found that these lands were recorded as Layek
Jungle Vitar and 98 Bahir, doba pukur and Khal. He had gone through the R.S.
Map and from the map he found no sign of jungle as against the disputed lands.
One salt manufacturing company was in occu- pation of the disputed land before
the respondents took settlement from the original landlady. The existence of
salt manufacturing company shows that there was salt water on the disputed
lands. With a view to develop the land they applied for the loan to the Chief
Minister on May 25,
1955. That shows that
there exists fishery in the disputed land. The Junior Land Revenue Officer
found on May 11, 1958 after inspection the existence of
fishery. Therefore, it shows that on the date of vesting there exists fishery
in the lands. Local witnesses who were examined support the exist- ence of
fishery for a pretty long time. Against this there is no rebutting evidence
adduced by the State. Accordingly he set aside the order of the Asstt.
Settlement Officer and confirmed the original classification. The State filed
the writ petition and the High Court, as stated earlier, dis- missed the writ
petition in limine.
Roy, the learned St. Counsel appearing for the State contended that the Asstt.
Settlement Officer has carefully assessed the evidence and recorded the
Appellate Tribunal has reversed the findings without considering the validity
of the reasons recorded by the Asstt. Settlement Officer. It has taken
irrelevant factors or non-existing factors into account and thereby the find- ings
recorded by the Appellate District Judge is based on no evidence. On the other
hand it is beset with conjecture and surmises. Shri Chatterji, the learned Sr.
Counsel appearing for the respondent's contended that the appellate authority
has recorded the findings of fact that pisciculture was in existence as on the
date of vesting. This Court cannot interfere with the findings of fact recorded
by the appel- late court, in particular, when the High Court did not choose to
interfere with the finding. The record in the settlement refers that the lands
are used for pisciculture.
open to the State to establish that the lands are not being used as pisciculture.
In its absence the findings recorded by the appellate court is one of fact and
this Court cannot interfere with that finding.
the High Court did not go into any of the questions raised by the appellant in
the writ petition. It summarily dismissed the writ petition. Therefore, what we
have to read is only the orders of the Appellate Tribunal and the Asstt.
Settlement Officer--the primary authority together with the record of evidence.
Counsel took us through the evidence to show that the findings recorded by the
appellate Judge are based on either no evidence or surmises and con- 99 jectures.
We have given our anxious consideration to the respective contentions and
considered the evidence on record once again. It is indisputably true that it
is a quasi- judicial proceeding. If the appellate authority had appreci- ated
the evidence on record and recorded the findings of fact, those findings are
binding on this Court or the High Court. By process of judicial review we
cannot appreciate the evidence and record our own findings of fact. If the
findings are based on no evidence or based on conjectures or surmises and no
reasonable man would on given facts and circumstances, come to the conclusion
reached by the appel- late authority on the basis of the evidence on record.
this Court would oversee whether the findings recorded by the appellate
authority is based on no evidence or beset with surmises or conjectures. Giving
of reasons is an essential element of administration of justice. A right to
reason is, therefore, an indispensable part of sound system of judicial review.
Reasoned decision is not only for the purpose of showing that the citizen is
receiving jus- tice, but also a valid discipline for the Tribunal itself.
statement of reasons is one of the essentials of justice.
appellate authority in particular a trained and experienced District Judge is
bound to consider the entire material evidence adduced and relied on by the
parties and to consider whether the reasons assigned by the primary authority
is cogent, relevant to the point in issue and based on material evidence on
record. The District Judge has forsaken this salutary duty which the
legislature obviously entrusted to him. The question, therefore, is whether the
reasons assigned by the appellate tribunal are based on no evidence on record
or vitiated by conjectures or surmises.
appreciating this point it is necessary to look into the purpose of the Act and
relevant provisions therein. The Act has been made to acquire the estates, all
rights. of inter- mediaries therein and of certain rights of raiyats and trader
raiyats of non-agricultural tenants in occupation of the lands comprised in the
State. Section 4(1) empowers the State Government to issue notification under
the Act from time to time declaring that with effect from the date men- tioned
in the notification all estates and all rights of every intermediary in each
such estate situated in the district or a part of the district specified in the
notifi- cation "shall vest in the State" free from all incumbrances.
procedure has been provided in this behalf in sub-sec- tion (2) to (6) of s. 4
of the Act, the details of which are not relevant for the purpose of this case.
The effect of the notification as adumbrated in s. 5 thereof is that all grants
of, and confirmation of titles to, estates and rights therein, to which the
declaration applies and which were made in favour of the intermediaries shall
Thereby, by statutory operation the pre-existing rights and all grants of and
confirmation of the titles to the estate and the rights therein statutorily
have been determined by issuance and publication of the notification under s.
4(1) read with s. 5 of the Act. Section 6 of the Act employing non-obstante
clause carved out exceptions to the operation of ss. 4 and 5 and preserve the
right of intermediary to retain possession and title of certain land in certain
circumstances. Sub-section (1) postulates thus:
anything contained in Sections 4 and 5, an intermediary shall, except in the
cases mentioned in the proviso to sub-section (2) but subject to the other provi-
sions of that sub-section be entitled to retain with effect from the date of
vesting-- (e) tank fisheries;
fishery" means a reservoir or place for the storage of water, whether
formed naturally or by excava- tion or by construction of embankments, which is
being used for pisciculture or for fishing, together with the subsoil and the
banks of such reservoir or place, except such por- tion of the banks as are
included in a homestead or in a garden or orchard and includes any right of pisciculture
or fishing in such reservoir or place." A reading of these provisions
clearly indicates that notwithstanding the determination of pre-existing
rights, titles and interest of the holders of the estate in the notified
estate, subject to proviso to subsection (2) and other provisions of
sub-section, sub-section 1(c) retains the rights and possession of intermediary
in respect of tank fisheries. Tank fishery means the lands being used for pisciculture
or any fishing in a reservoir or storage place whether formed naturally or by
artificial contrivance as a permanent measure except such portion of embankment
as are included in a homestead or in a garden or orchard to be tank fishery.
Such lands occupied by pisciculture or fishing stood preserved to the
intermediary. In Chamber's 20th Century Dictionary at page 829. the word 'pisciculture'
defined to mean "the rearing of fish by artificial methods".
Webster Comprehensive Dictionary, Vol. II 'pisciculture' means hatching and
rearing of fish. In Stroud's Judicial Dictionary, Vol. II, 4th Edition at page
1051 the term 'several fishery' 101 is sometimes said to be a right of fishing
in public waters, which may be exercisable by many people. Therefore, when by
means of reservoir a place for storage of water whether formed naturally or by
excavation or by construction of embankment, is being used for pisciculture or
for fishing is obviously a continuous process as a source of livelihood.
be 'tank fisheries' within the meaning of s. 6(1)(e).
tanks stand excluded from the operation of ss. 4 and 5.
question, therefore, emerges whether the disputed plots are tank fisheries.
Undoubtedly, as rightly contended by Shri Chatterji that if the findings recorded
by the appellate tribunal that the disputed plots of land are tank fisheries,
are based on evidence on record, after its due consideration in proper
perspective certainly that finding is binding on this Court, as being a finding
of fact. The finding recorded by the appellate tribunal is based on five
grounds, namely- nonexistence of the forestry in the map;
application for loan' revenue receipts produced by the respondent; previous
salt cultivation and the oral evidence adduced on behalf of the respondents.
Yet another ground is absence of rebuttal evidence by the State. We have
already noted the findings recorded by the Asstt. Settlement Officer. They need
no reiteration. Mr. Dutta examined on behalf of the State made personal
inspection. The contention of Shri Chatterjee is that he inspected the land in
the year 1968, but the relevant date is of the year 1952 and there is no
evidence contrary to the existence of land in 1952 being used for pisciculture.
It is true that the crucial date for establishing, as a fact that the pisciculture
was being carried on in the disputed land is the period of vesting, namely,
1955-56. The existence of fishery subsequent to that period is not of any
relevance. Admittedly. the respondents did not produce before the Asstt.
Settlement Officer either post or pre-record till date of vesting to establish
that from 1952 to 1955-56 i.e. from the date of obtaining settle- ment till
date of vesting, the lands were recorded in set- tlement records as pisciculture
or fishery. Admittedly, in 1954 the Khasra enquiry was conducted in the
presence of the respondents. The findings recorded in the relevent columns are
that no pisciculture or fishery was being carried on except in two plots i.e.
2201 and 2235 which are not subject matter of enquiry but are situated adjacent
to these lands.
findings were not challenged at any time. The report of the Tehsildar directing
payment of the land revenue was not produced. What was produced is only receipt
on the body of which an endorsement "for pisciculture" was made by
the Tehsildar. The reason given by the Asstt. Settlement Officer in rejecting
the receipts was that there was no need for the Tehsildar to write "for pisciculture"
and that was not the practice. This finding was 102 not disputed by the
appellate Judge. Therefore, there is no documentary evidence to establish that
the lands were being used, on the date of settlement or also on the date of
vesting, as pisciculture or fishery. The finding recorded by the Asstt.
Settlement Officer is based on the evidence given by Mr. Dutta, who on personal
inspection, found that the lands remained in the same condition from the date
of vest- ing till date of his inspection in the year 1968. This finding was
also not contradicted in the cross examination of Mr. Dutta, though he was
subjected to gruelling cross- examination. Therefore, the finding that the
State has not produced any rebuttal evidence is palpably wrong on the face of
the record. The further findings that the map does not indicate that there
exists any forestry, is also a conclu- sion reached by the appellate authority
without discussing the evidence of Mr. Dutta who had stated in his evidence
that there are shrubs outside and inside the lands in dis- pute. It is the
specific case of the respondents that they made embankment, but Mr. Dutta finds
that there was no embankment to any of the plots. That was also a finding
recorded by the Asstt. Settlement Officer. There is no discussion by the
appellate authority of the evidence given on that count. Though written
objections were filed and evidence was adduced by the respondents, neither in
the objections nor in the oral evidence tendered by the two respondents or
their witnesses it was shown that the lands were used earlier for salt
cultivation by erstwhile land- holder. Therefore, this is an extraneous factor
which the District Judge picked from his hat without any foundation.
solitary revenue receipt produced by the respondents was rejected by the Asstt.
Settlement Officer for cogent rea- sons. The appellate authority being final
authority on facts, is enjoined and incumbent upon it to appreciate the
evidence; consider the reasoning of the primary authority and assign its own
reasons as to why he disagrees with the reasons and findings of the primary
authority. Unless ade- quate reasons are given merely because it is an
appellate authority, it cannot brush aside the reasoning or findings recorded
by the primary authority. By mere recording that Dakhilas (rent receipts) show
that lands are used as pisci- culture is a finding without consideration of the
relevant material on record. The other finding that respondent ap- plied to the
Chief Minister for loan and that it would establish that the loan amount was utilised
for developing fishery is also a surmise drawn by the appellate authority.
already seen that admittedly the respondents have plot Nos. 2201 and 2235 in
which they have been carrying on fishery operations. The application said to
have been filed before the Chief Minister has not been produced. The account
books of the respondents have not been produced. When the documentary evidence,
which being the lust evidence, is 103 available but not produced an adverse
inference has to be drawn by the Tribunal concerned against the respondents for
non-production and had it been produced, it would have gone against the
respondents. A police complaint was said to have been made concerning
disturbance in the enjoyment of the lands in question. No documentary evidence
was produced or summoned. Even if it is done it might be self serving one
unless there is a record of finding of possession and enjoy- ment by the
respondents for fishery. Even then also it is not binding on the State nor
relevant in civil proceedings.
contention of Shri Chatterjee that it is the duty of the appellant to produce
the record to repudiate the find- ings recorded by the appellate authority is
without sub- stance. In a quasi-judicial enquiry is for the parties who relied
upon certain state of facts in their favour have to adduce evidence in proof
thereof. The proceedings under the Act is not like a trial in a Civil Court and
the question of burden proof does not arise. In the absence of abduction of the
available documentary evidence, the necessary conclusion drawn by the Asstt.
Settlement Officer that the loan appli- cation made might pertain to plot Nos.
2201 and 2235 is well justified. The appellate authority is not justified in
law to brush aside that finding. The other finding that the witnesses examined
on behalf of the respondents support the existence of the fishery for a pretty
long time is also without discussing the evidence and assigning reasons in that
regard. The Asstt. Settlement Officer extensively considered the evidence and
has given cogent reasons which were neither discussed nor found to be untenable
by the appellate authority. Thus, we have no hesitation in coming to the
conclusion that the Appellate Tribunal disregarded the material evidence on
record, kept it aside, indulged in fishing expedition and crashed under the
weight of conjec- tures and surmises. The appellate order is, therefore,
vitiated by manifest and patent error of law apparent on the face of the
record. When so much is to be said and judicial review done, the High Court in
our considered view, commit- ted error of law in dismissing the writ petition
facts and circumstances of this case, in particular, when the litigation has
taken well over 28 years till now, we find it not a fit case to remit to the High
Court or Tribunal for fresh consideration.
contended that the respondents are entitled to the computation of holding under
the Act, since they are pos- sessed of some other lands. We direct that if any determina-
tion of total holding of the lands including plot Nos. 2201 and 2235 and any
other lands are to be made under the Act or any other Land Reform Law singly or
conjointly it is 104 open to the appropriate authorities to determine the hold-
ing of the respondents in accordance with law after giving reasonable
opportunity to the respondents and the State after excluding the plots of lands
in dispute Shri Roy, learned counsel for the State repeatedly asserted that the
lands no longer remain to be fishery land and became part of urban area around
the Calcutta City and building operations are going on. On the other hand the
counsel for the respondents asserted to the contrary. We have no definite
evidence on record. Therefore, if the lands are still found to be capable of
using for fishery purpose and in case the State intends to lease it out for
fishing operations, to any third party, as per rules in vogue, first preference
may be given to the respondents. subject to the usual terms. as per the
procedure prevalent in the State of West Bengal in this regard.
we quash the order of Appellate Tribunal dated March 4. 1971 and restore the
order of the Asstt.
Officer elated July 12. 1968.
appeal is allowed accordingly and the parties are directed to bear their