SAKTI PADA ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) It is alleged in the petition that the respondents Nos. 7, 8 and 9, by a registered deed of sale dated 14th September 1951 (corresponding to 30th Falgun, 1357B. S.), sold to the petitioner certain types of standing timber, fuel wood and trees in the jungle Asnasuli, Touzi No. 82, mahal Behala, Revenue survey No. 8499, khatian No. 4, plot No. 1, extending Over an area of 162. 74 acres. A copy of the deed is annexed to the petition and marked with the letter 'A'. It appears to me that the deed gave the power to the petitioner to enter the forest, to cut certain standing shall and other trees for fuel-wood, within a period of six years, viz., from the Bengali year 1360 to 1365 B. S. It is expressly stated therein that within that period all wood that would be grown in the forest, fit to be used as fuel wood, may be cut by the petitioner. Under the Bengal Private Forest Act (XIV of 1948), wood could only be cut and taken away according to a working plan prepared in accordance with the provisions of the Act, and that is what was being done. In 1954, the West Ben gal Estates Acquisition Act, 1953 (Act I of 1954) came into operation. The State save notice of acquisition, and when the petitioner asked for leave to enter the forest and cut timber, such leave was refused. Hence this application.

(2.) The application is really based on a decision of mine, Ajit Kumar Bagchi v. State of West Bengal. In that case also, the petitioner entered into an agreement with, the owners of a private forest for cutting wood there in for the purposes of fuel. Upon an interpretation of the document in that case, I held that the petitioner therein had contracted to purchase a lot of wood, that is to say, moveable property, and the property therein had passed, although a time limit had been imposed during which the wood would be cut and removed. As the West Bengal Estates Acquisition Act, 1953 stood at the time when that decision, was given, the right to standing timber in a forest, or to the produce thereof, was not expressly vested in the State. In other words, although forests were directed to be vested in the State, yet the produce thereof, considered separately from the forest, did not vest. By the West Bengal Estates Acquisition Act (2nd Amendment) Act, 1957 (West Bengal Act XXV of 1957) this position has been altered. The relevant provision of this amending Act, which is applicable to the facts of this case is Section 3 (b), which runs as follows :

(3.) As I have held in Bhutnath Garai v. Divi sional Forest Officer, Midnapore, 62 Cal WN 610, the foundation of Ajit Kumar Bagchi's case (Supra) has vanished, because the amending Act makes all trees in a forest and forest produce vest in the State. In this application, the learned Advocate for the petitioner contends that he will take certain new points which have not been considered by me in Bhutnath Garai's case 62 Cal 610 (supra). The points that he has formulated are as follows: He says that the right that his client has got under the deed above-mentioned, is not a right to immovable property, and cannot be considered as land or interest in land. It is contended, therefore, that this interest cannot vest in Government, because it is neither an estate, nor a right in an estate, Also it is said that it cannot come within, the provisions of Section 4 (b) of the Amending Act, which runs as follows :