# MIR FAKIR MOHD v. STATE OF WEST BENGAL

- **Citation:** [1978] 3 S.C.R. 9
- **Court:** Supreme Court of India
- **Decided:** 1978-02-15
- **Bench:** R. S. Sarkaria, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mir-fakir-mohd-v-state-of-west-bengal-7484
- **Pages:** 3

## Headnote

9
JVest Bengal Estate Acquisition Act, 1954 S. 6 (1)(/)-Bamboo garden
-Or banana plantation whether an 'Orchard' wtthin the 1neaning of s. 6 ( 1) (f)
of the Act entirlfng an intennediary, to retain the land as such.
The petitioner's claim, by virtue of the· provisions of s. 6(1) (f) of the \Vest
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
A
B
trees, bamboo clumps and also banana-plants, was allowed by the Courts below
C
:but rejected by the Calcutta High Court in appeal hy the Stnte of West Bengal.
The High Court held that though cultivated bamboo garden would fall \Yithin
the definition of 'Agricultural land' in s. 2(b) of tho Act, it cannot in any view
be called an 'Orchard' within the purview of s. 6(1) (f) of the Act.
It further
held that a banana plantation is not an 'Orchard' because banana plants are not
·fruit-trees.
Dismissing the special leave petition the Court,
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 essen-
. tial 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. Jt 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]
CtVIL APPELLATE JURISDICTION : Special Leave Petition (Civil)
No. 2107 of 1977.
(From the Judgment and Decp~e dt. 21-7-76 of the Calcutta High
Court in Appeal from Appellate Decree No. 1658 of 1965).
Purshottam Chatterjee & Rathin Das for the Petitioner.
S. C. Majumdar & G. S. Chatterjee for the Respondent.
The order of the Court was delivered by
SARKARIA, J.
The principal question that has been mooted before
D
E
F
G
us in this petition for special leave to appeal under Article 136 of the
Constitution, against an appellate judgment dated 21st July, 1976 of
H
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
SUPREME COURT REPORTS
[1978] 3 s.c.R.
A
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
B
from the date of vestingc
D
E
F
G
H
( f) subject to the provisions of subsection
( 3)
Land
comprised in tea garden or orchard or land used for the pur·
pose 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 'Agricul·
tural 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 conte

## Text

.. ,.-"
t
1' •
-
..
...
MIR FAKIR MOHD.
v.
STATE OF WEST BENGAL
February 15, 1978
[R. S. SARKARIA AND P. S. KAILASAM, JJ.J
9
JVest Bengal Estate Acquisition Act, 1954 S. 6 (1)(/)-Bamboo garden
-Or banana plantation whether an 'Orchard' wtthin the 1neaning of s. 6 ( 1) (f)
of the Act entirlfng an intennediary, to retain the land as such.
The petitioner's claim, by virtue of the· provisions of s. 6(1) (f) of the \Vest
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
A
B
trees, bamboo clumps and also banana-plants, was allowed by the Courts below
C
:but rejected by the Calcutta High Court in appeal hy the Stnte of West Bengal.
The High Court held that though cultivated bamboo garden would fall \Yithin
the definition of 'Agricultural land' in s. 2(b) of tho Act, it cannot in any view
be called an 'Orchard' within the purview of s. 6(1) (f) of the Act.
It further
held that a banana plantation is not an 'Orchard' because banana plants are not
·fruit-trees.
Dismissing the special leave petition the Court,
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 essen-
. tial 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. Jt 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]
CtVIL APPELLATE JURISDICTION : Special Leave Petition (Civil)
No. 2107 of 1977.
(From the Judgment and Decp~e dt. 21-7-76 of the Calcutta High
Court in Appeal from Appellate Decree No. 1658 of 1965).
Purshottam Chatterjee & Rathin Das for the Petitioner.
S. C. Majumdar & G. S. Chatterjee for the Respondent.
The order of the Court was delivered by
SARKARIA, J.
The principal question that has been mooted before
D
E
F
G
us in this petition for special leave to appeal under Article 136 of the
Constitution, against an appellate judgment dated 21st July, 1976 of
H
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
SUPREME COURT REPORTS
[1978] 3 s.c.R.
A
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
B
from the date of vestingc
D
E
F
G
H
( f) subject to the provisions of subsection
( 3)
Land
comprised in tea garden or orchard or land used for the pur·
pose 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 'Agricul·
tural 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' bas 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 doue.
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 l)hable 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 relatio'n 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 ihe 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.
y •
,_
-
-
MIR FAKIR MOHD. V. WEST BENGAL
I 1
the modern connotation of 'orchard' is "an enclosure with fruit trees",
or "a'.n 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, theretore, resolves into the issue, whether a banana plant is a 'tree' '!
A 'tree',
according to the Shorter Oxford Dictionary, is "a
parennial plant
having a self-supporting woody main stem or trunk
(which usually
develops wood branches at some distance from the ground), and grow·
ing 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 p:ant lacks both thes·~ 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'.
A.
B
c
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 descril>os 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 whrn it uses the word
~
'tree-like' for a banana plant.
E.
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.
S.R.
Petition dismissed