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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: ATUL KRISHNA SHAW AND ANR.

DATE OF JUDGMENT28/08/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KASLIWAL, N.M. (J)

CITATION:  1990 AIR 2205            1990 SCR  Supl. (1)  91  1991 SCC  Supl.  (1) 414 1990 SCALE  (2)406

ACT:     West  Bengal  Estates Acquisition  Act,  1953:  Sections 2(i), 4(1), 6(1) (e)--Explanation, 44(2a) and 44(3).     ‘intermediaries’--Notification   vesting   Estates   and rights  of Intermediaries in the State--Right of  Intermedi- aries  to  retain title and possession in respect  of  ‘Tank fisheries’--Crucial date for establishing that disputed land was used for pisciculture is the period of vesting-Existence of fishery subsequent to vesting held irrelevant.     Administrative  Law: Duty to give  reasons--Primary  au- thority-Appellate  authority--Appellate  Tribunal  reversing order  of  primary  authority--Appellate  authority   should assign  its own reasons as to disagreement 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   no  evidence  or  based  on   conjectures   and surmises--Power  of Court to interfere, appreciate  evidence and record its own findings of fact.     Right to reason is indispensable part of sound system of judicial review. Words  and phrases: ’Tank  fishery’--’Pisciculture’--Meaning of.

HEADNOTE:     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(1)  of the West Bengal Estates  Acquisition  Act, 1953.  Since  the plots were recorded  as  ’tank  fisheries’ (used as pisciculture), they stood excluded from the purview of the vesting Notification under Section 6(1)(e) of the Act and preserved to the respondent intermediaries.     Subsequently  the primary authority--the Assistant  Set- tlement  Officer--initiated suo moto proceedings by  issuing notice to the respon- 92 dents  under  Section 44(2a) of the Act  for  correction  of classification  of lands on the ground that the  plots  were wrongly recorded as fishery plots. The respondents  objected to reclassification of the lands by contending that in  1952

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they were granted Dakhilas to the said land by one ‘B’,  the Principal landlady, and thereafter they have been  cultivat- ing pisciculture on the said plots of the land and  conduct- ing  fishery  business.  The  Assistant  Settlement  Officer rejected the claim of the respondents and ordered  reclassi- fication  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  Settlement  Officer and  confirmed  the  original classification of the plots.     Against  the  decision of the  Appellate  Tribunal,  the State filed a writ petition in the Calcutta High Court which dismissed the petition in limine.     In  appeal to this Court it was contended on  behalf  of the State: (i) that the Appellate Tribunal had reversed  the findings  without  considering the validity of  the  reasons recorded by the Assistant Settlement Officer; (ii) that  the Appellate Tribunal had taken irrelevant factor or non-exist- ing 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  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 finding. Allowing the Appeal, this Court,     HELD:  1. 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 justice, but  also  a  valid discipline for the Tribunal itself. Therefore, statement  of reasons is one of the essentials of justice. [99C-D]     1.1 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 93 point in issue and based on material evidence on record. 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 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 brush aside the reasoning or findings recorded by the primary authority. [99D; 102E-F]     2.  If the appellate authority had appreciated the  evi- dence  on  record and recorded the findings 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 own findings of fact. If the  find- ings  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. [99A-C]     2.1  In the instant case the Appellate  Tribunal  disre- garded  the  material  evidence on record,  kept  it  aside, indulged in fishing expedition and crashed under the  weight of conjectures and surmises. The appellate order is,  there-

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fore, vitiated by manifest and patent error of law  apparent on  the face of record. The order of Appellate  Tribunal  is quashed  and  the order of Assistant Settlement  Officer  is restored. [103F-G; 104D]     3. Tank fishery means the lands being used for piscicul- ture 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  stand  pre- served  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  establish- ing, 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  relevance. [100G-H; 101E]     Chamber’s  20th  Century Dictionary, page  829;  Webster comprehensive  Dictionary,  Vol. II  and  Stroud’s  Judicial Dictionary, Vol. II 4th Edn., page 1051, referred to. 94     3.1 In the instant case the respondents did not  produce before the 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 obtaining settlement till date of vesting, the lands were recorded in settlement records as pisciculture of fishery. 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 pisci- culture or fishery. [101F; 102A]     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  com- mitted  error  of  law in dismissing the  writ  petition  in limine. [98G; 103F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1422  of 1973      From  the  Judgment  and Order dated  5.7.1971  of  the Calcutta High Court in Civil Order No. 1826 of 1971. T.C. Ray, G.S. Chatterjee and D.P. Mukherjee for the  Appel- lant.      P.K.  Chatterjee,  Ranjan  Mukherjee,  N.R.  Choudhary, Somnath Mukherjee and P.K. Moitra for the Respondents. 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 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,  J.L. No. 168, P.S. Jaynagar were  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 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 s.44(2A)  of the Act, issued notice to the  respondents  who

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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 B.S. i.e. 1952  A.D. 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 A.D., 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. 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 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 s. 4(1)  of  the Act. Though the settlement was stated to 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 2955-56, the year of vesting, to  establish that  the disputed lands 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.D.  and  found recorded  the class of land in 18 days (plots). 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 Days (Plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are small Dobas i.e. "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

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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 i.e. 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 B.S. ) 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, i.e.  after seven years from 1359 B.S. (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

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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,  J.L. No. 168, P.S. 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 s. 44(3)  of the Act which by Judgment dated March 4, 1971 in E.A. No. 49 of  1968  in one paragraph with cryptic order  assuming  the role  of an administrator reversed 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 Vitar and 98 Bahir, doba pukur and Khal. He had gone through the R.S. 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

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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 4(1) 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 s. 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 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. 100 Thereby, by statutory operation the pre-existing rights  and all  grants of and confirmation of the titles to the  estate

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and  the rights therein statutorily have been determined  by issuance  and publication of the notification under s.  4(1) read  with s. 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  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  1(c)  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 s.  6(1)(e). Such tanks stand excluded from the operation of ss. 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

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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 i.e. 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 i.e. 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

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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

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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. 1968.     The  appeal is allowed accordingly and the  parties  are directed to bear their respective costs. T.N.A.                                 Appeal allowed. 105