# STATE OF WEST BENGAL v. SUDHIR CHANDRA GHOSE & ORS

- **Citation:** [1977] 2 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Appeal No. 1753 of 1968
- **Bench:** H. R. Khanna, V. R. Krishna !Yer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-v-sudhir-chandra-ghose-ors-7104
- **Pages:** 7

## Headnote

West Bengal Estates Acquisition Act 1953-Scction 2(/i)-Ss. 3, 4, 5-Encumbrance-Meaning of Interpretation of statutes construction of land reforms
statute--Whether amplitudi can be cut down.
-
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 instn1ment or any usage or
custom.
Section 4 authorises 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 notification 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 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."
The respondents, some of the villagers, filed a suit against the appellant in "
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 respandents 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 Coμrt, 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_ f74A-Cl
(2) From the perspective of land reform objective, a specious meaning is
derived by the definition of incumbrance.
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 incumbrance in its widest amplitude to cast the net wide so as to catch all rights and
interest whatever b' their nature. [74C-G]
(3) There is no substance in the contention of tho respondent that the collec-
. tive, 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 exerci•e the
right of grazing over the intermediaries' lands are plainly "other person<".
[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]
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72
SUPREME COURT REPORTS
[1977] 2 S.C.R.
T_he C~urt observed that the present appeai' raises a human problem and· as
'wazmg' nght is an important aspect of agrestic life the State should try to
provide alternative graz:'.lg grounds
to villagers when such rigbt8 are taken
'1WllV. f76A-Cl

## Text

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71
STATE OF WEST BENGAL
v.
SUDHIR CHANDRA GHOSE & ORS.
November 9,. 1976
[H. R. KHANNA AND V. R. KRISHNA !YER, JJ.)
West Bengal Estates Acquisition Act 1953-Scction 2(/i)-Ss. 3, 4, 5-Encumbrance-Meaning of Interpretation of statutes construction of land reforms
statute--Whether amplitudi can be cut down.
-
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 instn1ment or any usage or
custom.
Section 4 authorises 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 notification 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 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."
The respondents, some of the villagers, filed a suit against the appellant in "
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 respandents 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 Coμrt, 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_ f74A-Cl
(2) From the perspective of land reform objective, a specious meaning is
derived by the definition of incumbrance.
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 incumbrance in its widest amplitude to cast the net wide so as to catch all rights and
interest whatever b' their nature. [74C-G]
(3) There is no substance in the contention of tho respondent that the collec-
. tive, 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 exerci•e the
right of grazing over the intermediaries' lands are plainly "other person<".
[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]
B
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72
SUPREME COURT REPORTS
[1977] 2 S.C.R.
T_he C~urt observed that the present appeai' raises a human problem and· as
'wazmg' nght is an important aspect of agrestic life the State should try to
provide alternative graz:'.lg grounds
to villagers when such rigbt8 are taken
'1WllV. f76A-Cl
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 Chose 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 Singl0 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 estate~ 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 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
fl 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 "incumbrance' 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 'incumbrancc'.
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 consid.eration on the merits.
We may mention,
for completeness' sake. that defendants 1 to 4 are persons in whom
the estate has been alle.!!edly settled by the State, although this position is not clear or perhaps is denied by the State itself.
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'WEST BENGAL v. s. c. GHOSE (Krishna Iyer,!.)
73
The issue, in a nut-shell, is as to what is an 'incumbrance'.
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 b tlte
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 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 questions are :
( i) whether a right to graze cattle in the estate of another
falls within the sweep of the comprehensive expression
'all l'.ights or interests of whatever naturte'; and
(ii) whether the
members of a
village
as a collective,
though fluctuating body,
are covered by the words
'intermediaries or other persons'.
While thti two courts at the ground and first-floor level decided
the two points above-mentioned in favour
of the State, the Hirh
Court, after a long and discursive discussion, the labyrinth~ne 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
f;.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 dearly 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 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 inte.rmediarie.s'.
This embraces all persons othe:r than intermediaries and the villagers
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74
SUPREME COURT REPORTS
[1977] 2 S.C.R.
who seek to exercis~ 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
bo 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 motheaten by carving out many little interests out of the plen:1ry 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 in
the State free from all incumbrances.
x
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
o~ 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 alt 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.
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Shri Ghose, for the respondent, pressed before us a contention
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based on rural economics which has considerable force in a general
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WEST BENGAL v. s. c. GHOSE (Krishna Iyer, !.)
75
way, but has none from the) legal angle.
India lives in her vi!lagesnot 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 anq their very life if the State snatches the valuable right
of pasturage which makes the village. econom)I' viable, in the name
of estate ·abolition, without providing alternative village commons.
While we are moved by this submission and feel that this i!I
an
unintended consequence of comprehensive vesting of estates in the
State, we have only to observ'1. that the State, in our
expectation,
should, mindful of its weifare obligation, consider this facet of the
problem and try to provide grazing grounds in villages whero
the
impact of the Act has deprived the community of the right of pasturage.
Even if the/ consequence of abolition of intermediary right3
leads to a baneful by product from the economic pojnt 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 Sara<la 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
yilJage.
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 refors 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,
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counsel for the appellant having assured the Court that these obserG
vation 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
legal issues:
What isl the nature, in terms of well-known interests
or rights in or over property, of the right of pasturage ?
Is it an
H
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-
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76
SUPREME COURT REPORTS
(1977] 2 S.C.R.
tcrest withins. 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 an: other persons with:n 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 lhe village."
We have been taken on a lengthy tour (as we have already mentioned)
of these areas of law by counsel •Jn both sides but we do not think it
necessary to cover them in this judgment at any lengti1.
The conclu-
. sion of the learned Judge is that a grazing right or r;ght 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 'shall have effect notwithstanding anything
to the contrary contained in any other law .... and notwithstanding
any usage or custom to the contrary.' Undoubtedly,
the plenury
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 dcclare,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
thei
definition of 'incumbrance' 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'.
Secticn 161, 183 of the Bengal Tenancy Act and ss.2(p), 5(aa) and
6(h) have all been t:onsidered 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 cf the rulings
cited before us or referred to by the learned Judge ha:-. considered this
point, especially in the context of the extremely wide langua1re used
in s. 2(h) of the Act. It is inconsequential to say that the customary
right is law.
Equally unhelpful is the findin1r 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.
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WEST BENG . .\L v. s. c. GROSE (Krishna Iyer, J.)
7 7
Th~ conclusion is irresistible that the State's defence is impregnable.
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The appeal therefore deseves to be allowed and the suit dismissedwhich 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 qf humble villagers "'.iz., the right of pasturage and
feel e011fident that a Welfare State, deeply concerned with preservation of village economy, will not hesitate to provide fresh pastures
B
for the preservation of agrestic life and agricultural prosperity.
:P.HP.
Appeal allowed