Appeal No 1753 of 1968 Appeal by Special Leave from the Judgment and OrderDecree dated the 6th September 1967 of the Calcutta High Court in Appeal from Appellate Decree No 689 of 1964 SC Majumdar and GS 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 ss3 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 s2h 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 s4 of the Act free from all encum brances as provided in ss4 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 s5 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 s2h 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 2h 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 provisions 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 sections 3 to 5 and uncovered by s2h
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 sections 4 and 5 which we set out below along with section 3 s3
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 s41 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 s51 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 ss4 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 s2h
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 weas 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 p495 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 section 2h 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 2h 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 s3 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 sections 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  s5
Moreover when ss4 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 ss2p 5aaand 6h 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 section 2h 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
section 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


Summary:
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 2h 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