AJIT KUMAR BAGCHI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The facts in this case are shortly as follows : The Respondent No. 3, the Maharajadhiraj of Darbhanga, was at the material time, owner of a large tract of forest in the District of Bankura. He used to lease out the forest to contractors. Although the word "lease" has been generally used, the transaction was of a special nature as will be discussed presently. In this case we are concerned with portions of the forest lying in Mouza Barapacha and Mitha, Am, situated in Thana Ranibundh, in Paragana Shyamsundarpur, District Bankura. The forest situated in these Mouzas used to be leased out for stated periods by public auction. Sometime in the year 1945, there was a proclamation for sale by public auction. The proclamation of sale declared that there would be a public auction of certain kinds of jungle wood within the aforesaid Mouzas. Thus it is not a lease of the ordinary sort. On the 22nd of December, 1945 the petitioner was declared to be the highest bidder for the sum of Rs. 26,240/-, which bid was accepted. At first there was no written agreement but subsequently a written document was executed in which the transaction was described as sale of jungle wood ^taxysj dk"B [kjhns* - It appears that the petitioner having been declared as the highest bidder at the public auction, he was allowed to commence the cutting and removal of wood without the execution of any formal document. The West Bengal Private Forests Act (Act XIV of 1948) came into operation on or about the 23rd April 1948. This Act was primarily intended to stop denudation of private forests by the reckless cutting of trees. It contains a variety of schemes intended to serve this end, one of which is that before cutting away trees in a particular area, a working plan has to be submitted to the Governmental authorities and it is only after this plan has been sanctioned that the cutting of trees is permitted, in terms of the sanctioned plan. The scheme is really intended to limit the cutting of trees within a particular period to a particular zone, and also to control the cutting so that the entire forest may not be denuded. I have already stated that the petitioner was allowed to operate in the forest without any written document having been executed. There can be little doubt that the coming into operation of the Said Act impelled the parties to have a formal document brought into existence. Even before this, the Respondent No. 3 had submitted a working plan or "lease statement" as it has been called, and sometime in September, 1948 the working plan was sanctioned by the Divisional Forest Officer, Bankura Division. On or about the 29th December, 1950 a document was executed by the petitioner in favour of Respondent No. 3 a copy whereof is annexed to the petition and marked with the letter-"A". The document is described as an agreement for the purchase of jungle wood ^taxysj dk"B [kfjnsj ,djkj ukek* - It is also described as an instalment bond in respect of the consideration money ^fdfLrca/kh re'kq[k i=* . It has been recited in the document that there was a public auction, that the petitioner had been declared as the highest bidder, and that by the time the document came to be executed the petitioner had already finished the cutting of wood, in 417.61 acres, which had reverted to the khas possession of Respondent No. 3. The position therefore was as follows : The original acreage which was the subject-matter of the transaction consisted of 1085.8 acres in Mouda Barapacha and 194,86 acres in Mouza Mitha Am. By the time the document came to be executed, the petitioner had already paid Rs. 21,000/- out of the total consideration of Rs. 26,240/- and had cut and removed wood from a considerable portion of the total area which was the subject-matter of the sale, leaving only 862.33 acres to be operated upon. It was agreed that this area would have to be operated upon, within a total period of 6 years and 10 months, between the Bengali years 1357 and 1363. The total acreage was divided into zones, each zone to be operated upon within the specified period mentioned in the document. The document further stipulated that the petitioner would not be entitled to cut fruit-bearing or valuable trees, e. g,, Mango, Jack-fruit, Sagoon etc. With regard to Sal trees, it was stipulated that the petitioner would not be entitled to cut such trees as have a girth of 3 ft. at a height of 3 ft. from the ground, nor such trees as have a girth of less than two inches. With the exception of the above, the petitioner would be entitled to cut such trees like Sal, Parashi etc., which were not used as timber but as fuel tkykuh-. There were limitations imposed in the manner of cutting the trees. For example, the petitioner was forbidden to uproot trees in a manner which would prevent the trees from growing and he would have to clear the area of decayed wood which might fall to the ground in the course of the operations. Finally, it was stipulated that the petitioner, after cutting the trees, would be entitled to remove the wood and to use the same in any manner he liked or to sell the same according to his desire. As I have stated above, at the time the agreement came to be executed the major portion of the instalment money had been paid and only Rs. 5,240/- remained due. By the 13th of April 1951, the petitioner Paid to the Respondent the entire balance due under the agreement. On or about the 12th February 1954, the West Bengal Estates Acquisition Act (1 of 1954) came into operation under Section 5 of the said Act, upon the due publication of a notification under Section 4, the estates and rights of intermediaries, in such estates to which the declaration applied, vested in the State free from all incumbrances. It is further provided that the rights so vested include rights in hats, bazars, ferries, forests, fisheries, tolls and other sairati interests. Originally the Act did not contain any definition of the word "forest". By the West Bengal Estates Acquisition (Amendment) Act, 1955 (XXXV of 1955), the word "forest" has been defined to mean any land recorded in the record-of-rights prepared or revised for the Puposes of the Act, under the classification jhari, jhati, jangal, ban, salbon or other similar terms. I am informed that no record-of-rights has been prepared or reviewed as yet, for the purposes of the said Act. The final position therefore is as follows : The petitioner has paid the entire consideration under the agreement mentioned above. He has cut and removed a portion of the wood which he was entitled to do under the agreement, but a small area in the forest still remains to be operated upon. Meanwhile, the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as 'the Act') haying come into operation, the respondents are claiming that not only the bare land but also the forest had vested in the Government and therefore the petitioner was not entitled to remove any further wood. At first, only verbal objections were raised. On the 16th June, 1955 the petitioner addressed a letter to the Divisional Forest Officer for Permission to continue the cutting, but this application was formally rejected on or about the 22nd June, 1955. The petitioner stated that he had purchased standing forest wood at an open auction in December, 1945 and that he had been working the same, the working plan having been sanctioned in 1948 in accordance with the provisions of the West Bengal Forests Act. He asked for permission for working during the year 1362. By his letter dated the 23rd June, 1955 the Divisional Forest Officer, Bankura Division, informed the petitioner that the forest had already vested in the State under the said Act and therefore the petitioner could not be allowed to fell any trees or continue his operations in any manner.

(2.) This Rule was taken out by the petitioner on the 5th September, 1955, calling upon the Respondents to show cause why the Respondents Nos. 1 and 2 should not be directed to rescind, withdraw or recall the order dated the 23rd June, 1955 and/or forbear from giving effect to it and why the petitioner should not be allowed to carry on the felling operations, and for other reliefs.

(3.) The dispute between the parties appears to be within a very short compass. According to the Respondents, the estates of the Maharajadhiraj of Darbhanga, including the forest in question, have vested in the State by virtue of the said Act, and the notifications published thereunder. It is argued that the vesting is by Operation of law and therefore the contractual rights of the petitioner had vanished, and not only the land upon which the forest stood had vested in the State, but also the trees growing thereon, it is contended that the petitioner had lost all his rights and could not be permitted to cut or remove any further wood. It is urged on behalf of the petitioner that the agreement in question is not a transfer of any interest in land. The petitioner had purchased certain wood standing in the forest and had completely paid the price thereof. He says that he has no quarrel with the fact that the land or forest has vested in the State, but the wood that he had already purchased had long ago vested in him, and by agreement of parties there was only a specific method formulated for the payment of the price and the removal of the goods. In any event, the entire price has now been paid and had been paid before the estate or the forest or the land had vested in the State. It is contended that the Act made no difference to the rights of the petitioner to carry away the wood which belonged to him and which he has already paid for in full. The issue to be decided in this application is as to which of these contentions is the correct one. The learned Advocate-General appearing for the Respondents has refused to go into the complicated questions as to whether the trees growing in the forest were to be considered as "immovable property", or whether in view of the agreement, the trees in the forest which the petitioner was going to cut were to be considered as "Fructus industrialis". He says that his stand is simple. The word ''estate" is not defined in the Act. It is laid down however in Section 2 (p) of the Act that expressions used in the Act and not otherwise defined have in relation to the areas to which the Bengal Tenancy Act, 1885 applies, the same meaning as in that Act, and in relation to other areas, meaning as similar thereto as the existing law relating to land tenures applying to such areas, permits. This is an area to which the Bengal Tenancy Act, 1885 applies: Under the Bengal Tenancy Act, an estate means land included under one entry in any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law for the time being in force by the Collector of a District, and includes Government khas mahals and revenue free lands not entered in any register. It is argued that the word "land" has not been defined. In fact there is no definition in any of the Acts save and except the Land Acquisition Act. In various Acts, viz., the Transfer of Property Act, the Registration Act, and the General Clauses Act, the expression "immovable property" has been defined. The learned Advocate-General says that these definitions are of too use because it is evident that different kinds of definitions have been made for the purposes of different Acts. He argues that since "land" has not been defined for the purposes of either the Bengal Tenancy Act or the Estates Acquisition Act, it should have its ordinary dictionary meaning and not only includes bare land but everything standing on it or attached to it. Mr. Banerjee appearing on behalf of the petitioner says that the agreement itself will show us the nature of the interest that had passed to the petitioner under it. The petitioner purchased a quantity of wood standing in the forest. Under the agreement he had to pay the price in instalments and to cut away the wood in instalments. The property in the goods however had completely passed to the petitioner upon the execution of the document or at least upon payment of the price. He argues that there is no necessity in this case to consider the definitions of the words 'land' or 'estate'. The petitioner has not purchased any interest in land and therefore nothing has vested in the State so far as the petitioner is concerned. The petitioner is not an intermediary and therefore there is no question of any estate belonging to the petitioner vesting in the Government by virtue of the Estates Acquisition Act, As an alternative line of argument Mr. Banerjee has argued that the trees which his client was going to cut and remove did not become immovable property by virtue of the fact that the wood which was to be cut and removed was "Fructus industrialis". In other words, it was produced after human labour and ingenuity had been expended, and applying the principle laid down in Marshall v. Green, (1875) 1 CPD 35 (A) it could not be said to have become Part of the land, and did not constitute immovable property. He points out that under the agreement itself the trees had to be cut in a particular manner and the rotten wood had to be cleared. So far as the Maharajadhiraj of Darbhanga is concerned he had to appoint forest guards to protect the forests and expend a large sum of money in cutting creepers. It is further in evidence that the income of the forest was treated by the Maharajadhiraj as agricultural income and taxes were paid under the Agricultural Income-tax Act.