STATE OF WEST BENGAL Vs. SUDHIR CHANDRA CHOSE

JUDGEMENT

(1.) 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 forth 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 Sections 3, 4 and 5 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 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 'incimbrance' within Section 2 (h) of the Act.

(2.) An estate in villagers Vadurepati Madhabpur in the district of Hooghly was among those vested in the State on a notification under Section 4 of the Act, free from all encumbrances as provided in Sections 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 excercise 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 Section 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 Section 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 'incumbrance'. If it does, the suit deserves to be dismissed but, if it does not, 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.

(3.) 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 :