PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
SUDHIR CHANDRA GHOSE & ORS.
DATE OF JUDGMENT09/11/1976
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1976 AIR 2599 1977 SCR (2) 71
1976 SCC (4) 701
ACT
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 down.
HEADNOTE
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 in-
strument 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 encumbrances.
Section 5 provides that on publication of such a notifica-
tion the estates to which the declaration applies shall vest
in the State free from all encumbrances. Section 2(h)
defines an encumbrance as under:
" ’incumbrance’ 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 incumbrance it
came to an end by virtue of section 5 of the Act. According
to the respondents the said right was not an incumbrance
within the meaning of the said Act and according to the
appellant it was an incumbrance. 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 incum-
brance. Ordinarily the court cannot cut down the defini-
tional amplitude given in the statute and there is no reason
for departing from the said golden rule. The Legislature
used the expression incumbrance 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 interme-
diaries’ 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]
JUDGMENT
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 Appellant.
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 ’incumbrance’ within
s.2(h) of the Act.
The facts
An estate in village Vadurerpati Madhabpur in the dis-
trict of Hooghly was among those vested in the State on a
notification under s.4 of the Act, free from all encum-
brances as provided in ss.4 and 5. The Plaintiffs-respond-
ents are some of the denizens of the said village and, in
this representative action, claim that the agrarian communi-
ty there have always enjoyed the right of pasturage over the
suit estate and pray for the relief of injunction restrain-
ing 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 incumbrances on the estate and the right to
graze cattle belonging to the villagers is but an "incum-
brance’ 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 defini-
tion of ’incumbrance’. 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 ’incum-
brance’. 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) ’incumbrance’ 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 pro.visions of section 6,
include all rights or interests of what-
ever nature, belonging to intermediaries or
other persons, which relate to lands
comprised in estates or to the produce
thereof."
And so the two gut questions are:
(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 discus-
sion, 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 ’incumbrance’ 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
’incumbrance’ 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 conten-
tion that the collective, though uncertain, body of villag-
ers 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 inter-
mediaries’ 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 fulfilment 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 pre-
condition 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 incumbrances.
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 incumbrances; 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
incumbrances’. In short, from the perspective of land-
reform 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 highlight-
ed by the Father of the Nation, but insufficiently remem-
bered 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 comprehen-
sive vesting of estates in the State, we have only to ob-
served that the State, in our expectation, should, mindful
of its welfare obligation, consider this facet of the prob-
lem 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 obser-
vations 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 comments:
"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 communicat-
ed 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 legal issues:
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 in-
76
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 recog-
nised 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 con-
trary to the provisions of’ s.5. Moreover, when ss.4 and 5
declare unmincingly that the vesting shall be free from all
incumbrances, a customary right of grazing which clearly is
an incumbrance runs counter to this clause. Certainly the
definition of ’incumbrance’ cannot take in a right or inter-
est unless it is in favour of intermediaries, or other
persons. The learned Judge has considered whether villag-
ers 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
’incumbrance’ 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 through out.
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.
P.H P. Appeal
allowed
78