Holding

The Appellate Tribunal’s order is vitiated by a manifest error of law for failing to give cogent reasons and for basing its findings on conjecture, and the order of the Assistant Settlement Officer is restored.

Summary

The State of West Bengal sought to acquire lands that had been recorded as "tank fisheries" under the West Bengal Estates Acquisition Act, 1953. The respondents, intermediaries, claimed exemption under Section 6(1)(e) which preserves rights to tank fisheries at the date of vesting. The Assistant Settlement Officer, after examining evidence, concluded that the lands were not used for pisciculture at the vesting date and ordered reclassification. The Appellate Tribunal (District Judge) reversed this finding without giving cogent reasons, relying on conjecture and surmises. The State challenged the Tribunal’s order, arguing that the Tribunal failed to consider the primary authority’s reasons and material evidence. The Supreme Court held that the Tribunal’s order was vitiated by a patent error of law for not providing reasons and for basing its findings on no evidence, and restored the Assistant Settlement Officer’s order. The appeal was allowed, quashing the Tribunal’s decision.

Issues considered

The appellate authority must give reasoned decisions and consider the material evidence and reasons of the primary authority.
Whether the lands were "tank fisheries" at the date of vesting, thus falling under the exemption in Section 6(1)(e) of the West Bengal Estates Acquisition Act.
Whether the Appellate Tribunal's findings were based on evidence or on conjecture, rendering its order liable to be set aside.
Whether the High Court erred in dismissing the writ petition without addressing these questions.

Legislation cited

West Bengal Estates Acquisition Act, 1953s. 2(i), s. 4(1), s. 44(2A), s. 44(3), s. 6(1)(e)

Subjects

West Bengal Estates Acquisition Acttank fisherypiscicultureintermediary exemptionappellate tribunalreasoned decisionjudicial reviewadministrative lawland acquisitionevidenceconjecture

Judgment

STAlE OF WEST BENGAL. A
v.
ATUL KRISHNA SHAW AND ANR.

AUGUST 28, 1990

[N.M. _KASLIWAL AND K. RAMASWAMY, JJ.) B

West Bengal Estaies Acquisition Act, 1953: Sections 2(i), 4( I),
6( /)(e)-Explanaiion, 44(2a) and 44(3).

'Intermediaries'-Notification. vesting Estates and rights of Inter-
mediaries in the State-Right of Intermediaries to retain title and posses- C'
sion in respect of 'Tank fisheries'-Crucial date for establishing that
disputed land was used for pisciculture is the period of vesting-
Existence offishery subsequent to vesting held irrelevant.

Administrative Law: Duty to give reasons-Primary authority-
.Appel/ate authority-Appellate Tribunal reversing order of primary D
authority-Appellate authority should assi!{n its own reasons as to dis-
agreement I with . reasons and findings of primary authority-Appellate
Tribunal's order based on conjectures and surmises-Held order is
vitiated by patent error of law apparent on the face of record.

Judicial Review: Appellate authority-Findings of fact based on E
no evidence or based on conjectures and surmises-Power of Court to
interfere, appreciate evidence and record its own findings offact.

Right to reason is indispensable part of sound system of judicial
rev.,iew.
F
. Words and phrases: 'Tank fishery'-· Pisciculture'-Meaning of.

The land belonging to the respondent intermediaries comprising
of certain plots stoOd vested in the State of West Bengal by operation of
a Notification issued under Section 4(0 of the West Bengal Estates
Acquisition Act, 1953: Since the plots were recorded as 'tank fisheries' G
(used as pisciculture), they stood excluded from the purview of the
vesting Notification under Section 6(l)(e) of the Act and preserved to
the respondent intermediaries.

Subsequently the primary authority-the Assistant Settlement
Officer-initiated suo moto proceedings by issuing notice to the respon· H
92 SUPREME COURT REPORTS [ 1990] Supp. 1 S.C.R.

dents under Section 44(2a) of the Act for correction of classification of
A
lands on the ground that the plots were wrongly recorded as fishery
plots. The respondents objected to reclassification of the lands by con-
tending that in 1952 they were granted Dakhilas to the said land by one
'B', the Principal landlady, and thereafter they have been cultivating
pisciculture on the said plots of the land and conducting fishery busi-
B ness. The Assistant Settlement Officer rejected the claim of the respon-
dents and ordered reclassification of the plots. The respondents filed an
appeal before the Tribunal (District Judge) under section 44(3) of the
Act. The Appellate Tribunal reversed the order of the Assistant Settle-
ment Officer and confirmed the original classification of the plots.

Against the decision of the Appellate Tribunal, the State filed a
c writ petition in the Calcutta High Court which dismissed the petition in
fi1nine.

In appeal to this Court it was contended on behalf of the State: (i)
that the Appellate Tribunal had reversed the findings without consider-
D ing the validity of the reasons recorded by the Assistant Settlement
Officer; (ii) that the Appellate Tribunal had taken irrelevant factor or
non-existing factors into account and thereby its findings were based on
no evidence and hence vitiated in law.

On behalf of the respondents it was contended that since the
E Appellate Authority has recorded the findings of fact that pisciculture
was in existence as on the date of vesting the Supreme Court cannot
interfere with the findings of fact recorded by the Appellate Court,
particularly, when the High Court did not choose to interfere with the

F
finding.

Allowing the Appeal, this Court, -
HELD: I. Giving of reasons is an essential element of administra-
tion 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 (!f showing that the citizen is receiving justice, hut also a valid
G discipline for the Tribunal itself. Therefore, statement ofreasons is one
of the essentials of justice. [99C-D]

I. I The appellate authority in particular a trained and experien-
ced District Judge is bound to consider the entire material evidence
-~-
adduced and relied on by the parties and to consider whether the
H reasons assigned by the primary authority is cogent, relevant to the
STATE OF WEST BENGAL v. A.K. SHAW 93

point in issue and based on material evidence on record. The appellate A
authority being final authority on facts, is enjoined and incumbent
upon it to appreciate the evidence; consider the reasoning of the pri-
mary authority and assign its own reasons as to why it disagrees with
the reasons and findings of the primary authority. Unless adequate
reasons are given, merely because it is an appellate authority, it cannot
B
brush aside the reasoning or findings recorded by the primary
authority. [990; 102E-F)

2. If the appellate authority had appreciated the evidence on
record and recorded the imdings of fact, those findings are binding on
this Court or the High Court. By process of judicial review this Court
cannot appreciate the evidence and record its -0wn findings of fact. If C
the findings are based on no evidence or based on conjectures or
surmises and no reasonable man wOuld, on given facts and circumst-
ances, come to the conclusion reached by the appellate 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
D
. ,_
evidence or beset with surmises or conjectures. [99A-C)

2.1 In the instant case the Appellate Tribunal disregarded the
material evidence on record, kept it aside, indulged in fishing expedi-
tion and crashed under the weight of conjectures and surmises. The
appellate order is, therefore, vitiated by manifest and patent error of
E
law apparent on the face of record. The order of Appellate Tribunal is quas-
hed and the ocderof Assistant Settlement Officer is restored. [IOJF-G; 1040]

3. 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 F
to be tank fishery. Such lands occupied hy pisciculture or fishing stand
preserved to the intermediaries and thus stands excluded from the
operation of sections 4 and 5 of the West Bengal Estates Acquisition
Act, 1953. But the crucial date for establishing, as a fact that the
pisciculture was being carried on in the disputed land is the period of
vesting. The existence of fishery subsequent to that period is not of any G
relevance. [IOOG-H; IOIE]

Chamber's 20th Century Dictionary, page 829; Webster com-
prehensive Dictionary, Vol. II and Stroud's Judicial Dictionary, Vol. ff
' 4th Edn., page 1051, referred to.
H
94 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R .
.......
3.1 In the instant case the respondents did not produce before the
A
Assistant Settlement Officer either post or pre-record till date of vesting
to establish that from 1952 to 1955-56 i.e. from the date of obtain-
ing settlement till date of vesting, the lands were recorded in settle-
ment records as pisciculture of fishery. Therefore, there is no docu-
mentary evidence to establish that the lands were being used, on the
B date of settlement or also on the date of vesting, as pisciculture or
fishery. [101F; 102A]
I
4.. 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. The High Court committed error of law in dismissing the
writ petition in limine. [98G; 103F]
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1422
of 1973

From the Judgment and Order dated 5. 7 .1971 of the Calcutta
D High Court in Civil Order No. 1826 of 1971.
__,.
T.C. Ray, G.S. Chatterjee and D.P. Mukherjee for the Appellant.

P.K. Chatterjee, Ranjan Mukherjee, N.R. Choudhary, Somnath
Mukherjee and P.K. Moitra for the Respondents.
E
The Judgment of the Court was delivered by

K. RAMASWAMY, J. This appeal by special leave under Art.
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 •
F 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 Kishorimohanpore, J.L. No. 168, P.S. Jaynagarwere recorded
in the final Khaitan Nos. 143 and 144 of J.L. No. 168 as "Tank
Fishery" (being used for pisciculture) and by operation of s. 6(1}(e) of
G 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 reg uire correction of classifica-
lions of those lands. Accordingly, he drew up the proceedings under ...,..
s. 44(2A) of the Act, issued notice to the respondents who are
H brothers, intermediaries. They filed their written objections and
---- STATE OF WEST BENGAL v. A.K. SHAW [K. RAMASWAMY, J.]

appeared through counsel. They also filed the documents. examined
95

three witnesses apart from themselves. On behalf of the State one Mr. A
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 B.S. i.e. 1952
A.D. Thereafter they have been cultivating pisciculture in the said B
lands. They got embankment raised around the land. They have been
conducting fishery business. Jn 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 A.D., the Tehsildar made an endorsement on the body of the c
receipt "for Pisciculture". They were conducting fishery in a large
scale. They had applied to the Chief Minister Dr. B.C. Roy for a loan
of Rs.25,000. An endorsement on the application was made by the
concerned Secretary. When the miscreants· sought to disturb the
embarkments, they made a complaint to the police, who initiated D
,_ action in this regard. Agricultural Income-tax Department levyed 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 respondents conducting pisciculture in the E
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 directed 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 s. 4(1) of the Act. Though the settlement was stated to F
have been obtained from the Principal Landlady in the year 1952 (1359
B.S.), they did not produce any pre or post settlement records for the
period upto 1955-56, the year of vesting, to establish that the disputed
lauds are recorded as tank fishery. Mr. R.K. Dutta examined on
- behalf of the State stated that he made local inspection on April 11.
1968 A.O. and found recorded the class of land in 18 <lags (plots). G
Serial Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220. 2225.
2226, 2228, 2229, 2232, 2233, 2236 and 2239 within that Mouza. The
present Dags (Plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are

- small Dobas i.e. "ponds" and he did not find any sign ofpisciculture in
those plots. Plot Nos. 2210, 2209, 2233 and 2234 are blind canals. There
was no connection whatsoev~r of those plots with river or big canals. H
96 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.

He stated that there was water within those dags (plots), but he did not
A
find any sign of pisciculture therein. He did not find any water in p)ot
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
B 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 inspec-
tion. He also stated that the people examined by him have stated that
till date the lands remained in the same co.ndition. In the settlement
plan (map) the plots were not classified as pisciculture. Only two plots
c i.e. 2201and2235 were classified as pisciculture.

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
D 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 Asst!. 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
E conducted in the year 1954 (1361 B.S.) in their presence and examined
witnesses. The Enquiry Officer did not enter in the Khasra record that
any pisciculture 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
F the receipt issued by the Tehsildar, no documentary evidence of pay-
ment 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, there-
fore, 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
G pisciculture was being conducted. The attestation took place in July
1959, i.e. after seven years from 1359 B.S. (1952) the year so settle-
ment and three years from the date of starting the so called fishery. No
documentary evidence except the solitary receipt whicl: was rejected
by the Asstt. Settlement Officer was produced to show that any
pisciculture was being conducted. The receipt given by the Tehsildar is
H obviously to accommodate the responCients. There is no sufficient
,,--...
STATE OF WEST BENGAL v. A.K. SHAW [K. RAMASWAMY. J.l 97

proof of laying any road to carry the fish from the said plots. Sri Atul
A
Kumar Sahoo, one of the respondents, when was examined as a wit-
ness admitted it. Admittedly, fishery was carried out in plot Nos. 2201
and 2235 which are linked up with river Alian Kha! 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.
B
With regard to making an application to the Chief Minister 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 account books
showing income and expenditure of fishery were not produced, though c
time was allowed to produce the documents more than once. Some
lands are dry lands and some lands are with the shrubs inside river
embankment and outside. 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 D
>- months in every year. But they have failed to prove the existence of
any fishery over those plots by adducing sufficient and reliable evi-
dence. 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 E
Nos. 2202, 2239, 2225, 2232, 2204, 2210, 2234, 2214. 2236, 2228 and
2226 in· Hal Khatian Nos. 134 and 144 within Mouza Kishorimohan-
pore, J.L. No. 168, P.S. Jaynagar as recorded as "Ghert" and
pisciculture in column No. 23 should be deleted and instead the classifi-
~ cation of plots Nos. 2202 and 2209 should be recorded as 'Layek Jungle
Outside' plot Nos. 2202, 2204, 2236 and 2228 should be recorded as F
'Layek Jungle Outside'. Plot Nos. 2201, 2234 should be recorded as
'pond', 2214 and 2226 should be recorded as 'Danga'. Recording in
column No. 23 to the effect 'pisciculture' in plot Nos. 2209, 2229, 2206,
2212, 2219, 2233 and 2220 should be deleted.

Against this order an appeal was filed before the Tribunal (IXth G
Addi. District Judge, Alipore) under s. 44(3) of the Act which by
Judgment dated March 4, 1971 in E.A. No. 49 of 1968 in one para-
graph with cryptic order assuming the role of an administrator rever-
>--"' sed the order of the A.S.O. The conclusions, without discussing the
evidence recorded by the Appellate Judge are that in the C.S. Khatain
he found that these lands were recorded as Layek Jungle Vilar and H
98 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.

Bahir, doba pukur and Kha!. He had gone through the R.S. Map and
A
from the map he found no sign of jungle as against the disputed lands.
One salt manufacturing company was in occupation of the disputed
land before the respondents took settlement from the original land·
lady. The existence of salt manufacturing_ company shows that there
was salt water on the disputed lands. With a view to develop the land
B 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
existence of fishery for a pretty long time. Against this there js no
rebutting evidence adduced by the State. Accordingly he set aside the
c order of the Asstt. Settlement Officer and confirmed the original clas·
sification. The State filed 'the writ petition and the High Court, as
stated earlier, dismissed the _writ petition in limine.

Shri Roy, the learned Sr. Counsel appearing for the State con-
D tended that the Asst!. 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 findings
recorded by the Appellate District Judge is based on no evidence. On
E the other hand it is beset with conjecture and surmises. Shri Chatterji,
the learned Sr, Counsel appearing for the respondents contended that
the appellate authority has recorded the findings of fact that pisci-
culture was in existence as on the date of vesting. This Court cannot
interfere with the findin!J&. of fact recorded by the appellate court, in
particular, when the High Court did not choose to interfere with the
F 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.

G AcJJnittedly 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 appel·
H late Judge are based on either no evidence or surmises and con-
STATE OF WEST BENGAL v. A.K. SHAW /K. RAMASWAMY, J.! 99

jectures. We have given our anxious consideration to the respective
contentions and considered the evidence on record once again. It is
A
indisputably true that it is a quasi-judicial proceeding. If the appellate
authority had appreciated 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 B
evidence or based on conjectures or surmises and no reasonable man
would on given facts and circumstances. come to the conclusion
reached by the appellate 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 indis- c
pensable part of sound system of judicial review. Reasoned decision is
not only for the purpose of showing that the citizen is receiving justice,
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 lo consider the entire material evidence
D

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 E
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
intermediaries therein and of certain rights of raiyats and under raiyats F
of non-agricultural tenants in occupation of the lands comprised in the
State. Section 4(1) empowers the State Government to issue notifica-
tion under the Act from time to time declaring rhat with effect from

.. the date mentioned 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 notification "shall vest in the State" free from G
all incumbrances. The procedure has been provided in this behalf in
sub-section (2) IO (6) of s. 4 of the Act, the details of which are not
relevant for the prupose of this case. The effect of the notification as
adumbrated in s. 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. H
100 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.

Thereby, by statutory operation the pre-existing rights and all grants
A
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 s. 4(1) read withs. 5 of the Act. Section 6 of the Act
employing non-obstante clause carved out exceptions to the operation
of ss. 4 and 5 and preserve the right of intermediary to retain possession
B and title of certain land in certain circumstances. Sub-section (1) post-
ulates 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
c from the date of vesting-

(e) tank fisheries;
D
Explanation-"tank fishery" means a reservoir or place for
the storage of water, whether formed naturally or by exca-
vation or by construction of embankments, which is being
used for pisciculture or for fishing, together with the sub-
soil and !he banks of such reservoir or place, except such
E portion 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 notwithstand-
ing the determination of pre-existing rights, titles and interest of the
F holders of the estate in the notified estate, subject to proviso to sub-
section (2) and other provisions of sub-section, sub-section I( e) 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 embank-
G ment as are included in a homestead or in a graden or orchard to be
tank fishery. Such lands occupied by pisciculture or fishing stood pre-
served 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. Jn Stroud's Judicial
H Diction.ary, Vol. II, 4th Edition at page 1051 the term 'several fishery'
STATE OF WEST BENGAL 1•. A.K. SHAW [K. RAMASWAMY. J.] 101

is sometimes said to be a right of fishing in public waters, which may he
exercisable by many people. Therefore, when by means of reservoir or A
a place for storage of water whether formed naturally or hy excavation
or by construction of embankment, is being used for pisciculturc or for
fishing is obviol'sly a continuous process as a source of livelihood.
would be 'tank fisheries' within the meaning of s. 6( 1)( e ). Such tank;
stand excluded from the operation of ss. 4 and 5. B

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 i'
binding on this Court, as being a finding of fact. The finding recorded
by the appellate tribunal is based on five grounds, namely. non-
existence 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 D
already noted the findings recorded by the A.sstt. Settlement Officer.
They need no reiteration. Mr. Dutta examined on behalf of the St1-1tc
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 195c
being used for pisciculture. It is true that the crucial date for establish- E
ing, 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 rclcvan_ce. Admittedly, the
..
._ respondents did not produce before the Asstt. Settlement Officer
either post or pre-record till date of vesting to establish that from 195c
to 1955-56 i.e. from the date of obtaining settlement till date of vest- F
ing, the lands were recorded in settlement records as pisciculture or
fishery. Admittedly, in 1954 the Khasra enquiry was conducted in the
presence of the respondents. The findings recorded in the relevant

... columns are that no pisciculture or fishery was being carried on except
in two plots i.e. 2201and2235 which are not subject matter of enquiry
but are situated adjacent to these lands. Those findings were not chal- G
lenged 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" \vas n1ade hy
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. ''fhis finding was H
102 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.

not disputed by the appellate Judge. Therefore, there is no docu-
A mentary evidence to establish that the lands were being used, on the
da.te of settlement or also on the date of vesting, as pisciculture or
fishery. The finding recorded by the Asst!. Settlement Officer is
based on the evidence given by Mr. Dutta, who on personal inspec-
tion, found that the lands remained in the same condition from the
a date of vesting 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 evi-
c dence of Mr. Dutta who had stated in his evidence that there are
shrubs outside and inside the lands in dispute. 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
D the appellate authority of the evidence given on that count. Though
written objections were filed and evidence was adduced by the respon-
dents, 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 earstwhile landholder. Therefore,
this is an extraneous factor which the District Judge picked from his
E hat without any foundation. The solitary revenue receipt produced by
the respondents was rejected by the Asstt. Settlement Officer for
cogent reasons. 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 autho-
F rity. Unless adequate reasons are given merely because it is an appel-
late authority, it cannot brush aside the reasoning or findings recorded
by the primary authority. By mere recording that Dakhilas (rent
receipts) show that lands arc used as pisciculture is a finding without

G
consideration of the relevant material on record. The other finding
that respondent applied 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 pro-
duced. The account books of the respondents have not been produced.
H When the documentary evidence, which being the lust evidence, is
STATE OF WEST BENGAL"· A.K. SHAW [K. RAMASWAMY. J.] 103

available but not produced an adverse inference has to be drawn by the
Tribunal concerned against the respondents for non-production and A
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 enjovment b) B
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 appel-
lant to produce the record to repudiate the findings recorded by the
appellate authority is without substance. In a quasi-judicial enquiry it
is for the parties who relied upon certain state of facts in their favour c
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 of
proof does not arise. In the absence of adduction of the available
documentary evidence, the necessary conclusion drawn by the Asstt.
Settlement Officer that the loan application made might pertain to plot D
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 E
reasons which were neither discussed nor found to be untenable by the
appellate authority. Thus, we have no hesitation in coming to the con-
clusion that the Appellate Tribunal disregarded the material evidence
on record, kept it aside, induldged in fishing expedition and crashed
under the weight of conjectures and surmises. The appellate order is,
therefore, vitiated by manifest and patent error of law apparent on the F
face of the record. When so much is to be said and judicial review
done, the High Court in our considered view, committed 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. G

It is contended that the respondents are entitled to the computa-
tion of holding under the Act, since they are possessed of some other
-.- lands. We direct that if any determination of total holding of the lands
including plot Nos. 2201 and 2235 and any other lands are to be mad-'
under the Act or any other Land Reform Law singly or conjointly it ;,
104 SUPREME COURT REPORTS (1990) Supp. 1 S.C.R.

A open to the appropriate authorities to determine the holding of the
respondents in accordance with law after giving reasonable opportun-
ity to the respondents and the State after excluding the plots of lands in
dispute

Shri Roy, learned counsel for the State repeatedly asserted that
B
rhe 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
c party, as per rules in vogue, first preference may be given to the
respondents, subject to the usual terms, as per the procedure preva-
lent 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 Asst!. Settlement Officer
D
dated July 12, 1968. ~

The appeal is allowed accordingly and the parties are directed to l
bear their respective costs.

T.N.A. ' Appeal allowed.
E