ivil Appeal No 1422 of 1973 From the Judgment and Order dated 571971 of the Calcutta High Court in Civil Order No 1826 of 1971
TC Ray GS Chatterjee and DP Mukherjee for the Appel lant
PK Chatterjee Ranjan Mukherjee NR Choudhary Somnath Mukherjee and PK Moitra for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
This appeal by special leave under article 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 JL No 168 PS Jaynagar were recorded in the final Khaitan Nos 143 and 144 of JL No 168 as Tank Fishery being used for pisciculture and by operation of section 61e 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 s442A 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
Yadavpur 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 BS ie 1952 AD
Thereafter 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
When they approached the Junior Land Revenue Officer for receipt of the rents after due enquiry by endorsement dated April 30 1958 AD 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 BC Roy for a loan of Rs25000
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 respondents
The Asstt
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 section 41 of the Act
Though the settlement was stated to have been obtained from the Principal Landlady in the year 1952 1359 BS 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 RK Dutta examined on behalf of the State stated that he made local inspection on April 11
1968 AD and found recorded the class of land in 18 days plots
Serial Nos
2202 2204 2206
2209 2210 2212 2214 2219 22202225
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 ie 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
Only two plots ie 2201 and 2235 were classified as pisci culture
It may 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 BS  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 ie after seven years from 1359 BS 1952 the year so settlement and three years from the date of starting the so called fishery
No 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
With 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 JL No 168 PS 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
Against this order an appeal was filed before the Tribu nal IXth Addl
District Judge Alipore under section 443 of the Act which by Judgment dated March 4 1971 in EA No 49 of 1968 in one paragraph with cryptic order assuming the role of an administrator reversed the order of the ASO The conclusions without discussing the evidence recorded by the Appellate Judge are that in the CS Khatain he found that these lands were recorded as Layek Jungle Vitar and 98 Bahir doba pukur and Khal
He had gone through the RS 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
Shri Roy the learned St Counsel appearing for the State contended that the Asstt
Settlement Officer has carefully assessed the evidence and recorded the findings
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
It is 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
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
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
certainly 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
Therefore statement of reasons is one of the essentials of justice
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 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
For 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 41 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
The procedure has been provided in this behalf in sub sec tion 2 to 6 of section 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 section 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 determine
100 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 section 41 read with section 5 of the Act
Section 6 of the Act employing non obstante clause carved out exceptions to the operation of sections 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 Notwithstanding 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 Explanation tank 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 1c 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
In 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
would be tank fisheries  within the meaning of section 61e
Such tanks stand excluded from the operation of sections 4 and 5
The 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 making 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 ie 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 ie 2201 and 2235 which are not subject matter of enquiry but are situated adjacent to these lands
Those 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
The 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
It is 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
The 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 in limine
In the 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
It is 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
Accordingly we quash the order of Appellate Tribunal dated March 4 1971 and restore the order of the Asstt
Settlement Officer elated July 12
The appeal is allowed accordingly and the parties are directed to bear their respective costs
TNA Appeal allowed


Summary:
The appellants filed writ petitions in the Madras High Court challenging the fixation in 1969 of a uniform reten tion price of Rs 100 per tonne of cement instead of the existing three different retention prices for different categories of producers fixed earlier on the basis of the recommendations made by the Second Tariff Commission in 1961
The grievance of the appellants was that the fixation of a uniform retention price to be paid to all producers for the cement produced by them and acquired by the State Trad ing Corporation amounted to discrimination contravening Article 14 of the Constitution
The challenge was rejected by a Single Judge and thereafter a Division Bench of the High Court
Cement has been a controlled commodity for a long time and its production distribution and price were regulated by Cement Control Orders issued by the Central Government from time to time in exercise of the powers conferred under sections 18G and 25 of the Industrial Development  Regula tion Act 1951
On behalf of the appellants it was contended that the impugned Order made in 1969 fixing a uniform retention price for all three categories of cement producers treated un equals as equals that the increase of Rs7 per tonne was to be made to the existing three tier retention prices but an irrational basis was adopted in fixing the uniform price of Rs 100 per tonne which resulted in an unequal increase to the three different retention prices then existing that clause 12 of the Cement Control Order 1967 did not permit one uniform retention price and that atleast in the case of Chettinad Cement Corporation Ltd discrimination was proved on the basis of the distinction made by the High Court in the case of Ms Travancore Cement Ltd The appellants howev er did not dispute before this court that no grievance would survive if the uniform retention price was fixed at Rs 104 per tonne instead of Rs 100
851 On behalf of the respondents it was asserted that the industry itself had sought a revision of the prices and had accepted in principle that there should be one uniform retention price
Dismissing the appeals this Court HELD 1 The fixation of Rs 100 per tonne as the uniform retention price for the entire industry with the solitary exception of MS Travancore Cement Ltd for which justification had been shown was on a rational basis taking into account all relevant data and factors including the cement industry s acceptance of the principle of a uniform retention price for the entire industry the only difference being in the price actually fixed at Rs 100 per tonne instead of Rs 104 per tonne claimed by the cement industry
It is obvious therefore that the principle of a uniform retention price for the entire industry had not been fault ed
857H 858A B 2 The principle of fixation of a uniform price for the industry was an accepted principle and this had to be done by fixing the uniform price on the basis of the cost of a reasonably efficient and economic representative cross section of manufacturing units and not with reference to the cost in relation to each unit
859A B Ms Shri Sitaram Sugar Company Limited  Anr
vs Union of India  Ors
and UP State Sugar Corporation Ltd  Anr
vs Union of India  Ors JT  referred to
3 Fixation of a uniform retention price being clearly permissible and the same having been determined at Rs 100 per tonne on the basis of expert opinion rounded on rele vant factors there was no scope for interference within the limits of permissible judicial review in the present case
859E Anakapalle Co operative Agricultural  Industrial Socie ty Ltd vs Union of India and The Panipat Cooperative Sugar Mills vs Union of India 1973 2 SCR 860 referred to
4 The Central Government s power under Clause 12 of the Cement Control Order 1967 to refix the price can be exercised having regard to any change in any of the factors relevant for determination of price of cement 
The meaning of the expression having regard to  is well settled
It indicates that in exercising the power regard must be had also to the factors enumerated together with all factors relevant for 852 exercise of that power
One such factor specified in Clause 12 is such 5 No material has been produced by the appellant to show that Ms Chettinad Cement Corporation is a similar substandard unit without any capacity for expansion so that it too must continue to be an uneconomic unit like Ms Travancore Cement Ltd deserving a similar treatment
860F G