04 August 1964
Supreme Court


Case number: Appeal (civil) 781 of 1963






DATE OF JUDGMENT: 04/08/1964


CITATION:  1965 AIR  625            1965 SCR  (1)   1

ACT: West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) as amended by West Bengal Act (25 of  1957)-Section 5(aa)Estates-Acquisition    of-Estates   and    rights    of intermediaries  in  estates  vesting  in  State  from   date specified  in notification by State Government Right to  cut zamindari  trees  granted by intermediary  to  third  person whether  would  also  vest in State  by  virtue  of  amended law--construction and validity of amendment.

HEADNOTE: The  appellant had been granted by the Zamindar of  Simlapal in  West Bengal a right to cut trees in certain  forests  of the  zamindari.  The exercise of this right was  interrupted by  action taken against him under the West  Bengal  Private Forests  Act,  1948.  The appellant filed  a  writ  petition under  Article  226 of the Constitution of  India.   In  the meantime,  the  West Bengal Estates Acquisition  Act,  1953, (Act 1 of 1954) was passed.  This Act provided that from the date specified in a notification under section 4 of the Act, property  and  interests specified in section 5 of  the  Act would vest in the State Government.  According to the Forest Department  the right to cut trees enjoyed by the  appellant was  within  the  purview  of section  5  of  the  Act  and, therefore,  had  become  vested  in  the  State  Government. Certain decisions of the Calcutta High Court, however,  went against  this  interpretation; it was held  therein  that  a right  to  cut trees granted by an intermediary to  a  third person was not within the terms of section 5. Thereupon  the State Legislature of West Bengal passed Act 25 of 1957 which by  adding section 5(aa) to the Act provided that  upon  the due  publication of a notification under section 4,  on  and from the date of vesting, all lands in any estate  comprised in a forest together with all rights to trees therein or the produce  thereof  and held by an intermediary or  any  other person  shall,  notwithstanding  anything  to  the  contrary contained  in any judgment, decree or order of any Court  or Tribunal, vest in the State.  The appellant’s writ petition, coming  up for hearing after this amendment, was  dismissed.



An appeal to the Division Bench also failed.  Appeal  before the Supreme Court came by virtue of a certificate of fitness under Article 133 (1) (c) of the Constitution. The  question  for consideration was whether  the  terms  of section  5(aa)  were sufficient and apt to provide  for  the vesting  of  the  right to cut the  trees  when  such  right belonged, on the date of vesting, not to the intermediary or zamindar  but to another person to whom it had been  granted under a contract with the said intermediary. HELD : (i) The words "together with" used in section  5(aa), on  the basis of which it was contended by counsel  for  the appellant  that  it was only where the right  to  the  trees constituted an integral part of the right to the land that a vesting  was  effected  of the latter right,  meant  in  the context of the section no more than the expression ’as  well as’  and imported no condition that the right to  the  trees should  also belong to the owner of the land.  Also, it  was not possible to read the words "held by an intermediary 2 or any other person" to mean that they were applicable  only to cases where the entirety of the interest-to the land,  to the  trees,  and  to the produce were  vested  in  a  single person-be  he  the intermediary or  another  person.   These words would obviously apply equally to cases where the  land belonged to an intermediary and the right to the trees or to the  produce of the trees to another person.  In  construing the  section,  moreover,  the fact that it  was  amended  to overcome  certain  decisions  rendered  under  the  original enactment  was  not an irrelevant factor to  be  taken  into account. [41-G; 5B-D, 5G]. (ii) From  the mere fact that there was no provision in  the Act  for  compensating  the interest  of  persons  like  the appellant,  the Court could not hold that such  an  interest was  not  within the vesting  section--section  5(aa).   The absence’  of a provision for compensation might  render  the vesting  section unconstitutional, but it could not  detract from the clear operation of the words used in section 5(aa). After the passing of the 17th Amendment to the  Constitution and  the inclusion of West Bengal Act 1 of 1954 among  those specified  in  Schedule IX, the absence of a  provision  for compensation  for the acquisition of the appellant’s  rights would  not  render the West Bengal Act  or  the  acquisition thereunder, unconstitutional. [6B; 6E].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 781 to  784 of 1963. Appeals from the judgment and order dated March 17, 1961  of the Calcutta High Court in Appeal from Original orders  Nos. 212, 433, 435 and 436 of 1959 respectively. D.   N. Mukherjee, for the appellant (in C.A. No. 781/63). N.   C. Chatterjee, Ramkrishna Pal, Taraknath Roy and D. N. Mukherjee, for the appellants (in C.As. Nos. 782-784/63). C.   K.  Daphtary,  Attorney-General, S. C. Bose and  P.  K. Bose, for respondents Nos.  1 to 3 (in C.A. No. 781/63). B. Sen, S. C. Bose and P. K. Bose, for respondents Nos. 1 to 3    (in C.As. Nos. 782 to 783/63) and respondents (in C.A. No.  784/63). The Judgment of the Court was delivered by Ayyangar  J.  These  appeals  are before  us  by  virtue  of certificates granted by the High Court under Art.  133(1)(c) of  the  Constitution and they raise for  consideration  the question of the proper construction of S. 5(aa) of the  West



Bengal  Estates Acquisition Act, 1953 (West Bengal Act 1  of 1954) as amended by West Bengal Act 25 of 1957. The  relevant facts in these four appeals are analogous  and they raise the common question of law which we have  already indicated.   For  the  disposal  of  these  appeals  it   is sufficient  therefore  to refer to the facts of any  one  of them.   We propose to set out those of Civil Appeal  781  of 1963. 3 The  Zamindar  of Simlapal in the  Collectorate  of  Bankura entered into a contract with the appellant Ram Krissen Singh and  by a document dated September 3, 1946, granted him  the right  to  cut the trees, in certain  demarcated  areas,  of certain forests of the Zamindari on payment of a sum of  Rs. 7,131/8/-.  Under the terms of the said document the  period during which the appellant was given this right to cut trees was  to  end on April 14, 1955.  The appellant  started  the cutting  operations and cut only for, the first  few  years, but  thereafter action was taken by the Forest  Officers  of the  State  to prevent him from further  cutting  under  the powers  vested  in them by the West Bengal  Private  Forests Act, 1948.  Thereupon, the appellant tiled a petition  under Art.  226 of the Constitution for a writ of  certiorari  for quashing  the  orders  passed against him and  also  for  an injunction  restraining  the  Forest  Officers  from  taking delivery of possession and from cutting and disposing of the forests covered by his agreement.  By the time the  petition was filed the West Bengal Estates Acquisition Act, 1953 (Act 1  of  1954), (hereafter referred to as the  Act)  had  been passed and in the counter-affidavit which was filed to  this petition  reliance  was  placed  upon  its  provisions   for contending  that the "estate" belonging to the  Zamindar  in which the forest lay as well as all the rights to the  trees therein,  to whomsoever belonging, had vested in  the  State -under S. 5 of the Act by reason of a notification issued by the  State  Government  under s. 4. By  the  date  the  writ petition  came to be heard the West Bengal Legislature  had, in  view of certain decisions rendered by the Calcutta  High Court  which  held that the terms of s. 5 of the  Act  which specified  the property or interest in property which  would vest  in  the Government did not include the  right  to  cut trees in a forest, which had been granted to a third  person by  the  proprietor or intermediary before the date  of  the vesting, amended the said vesting section by introducing  S. 5  (aa)  to have retrospective effect from the date  of  the commencement of the principal Act.  Section 5 (aa) read:               "5. Upon the due publication of a notification               under  section  4,  on and from  the  date  of               vesting(aa) all lands in any estate  comprised               in  a forest together with all rights  to  the               trees  therein or to the produce  thereof  and               held  by an intermediary or any  other  person               shall,   notwithstanding   anything   to   the               contrary contained in any judgment, decree  or               order  of any court or Tribunal, vest  in  the               State’; 4 After this amendment was brought to the notice of the  Court the  petitioner was allowed to amend -his writ  petition  by adding  allegations  (a) regarding the construction  of  the said  section,  and ( b) its constitutional  validity.   The petition then came on for hearing in December, 1958, and the learned  Single  Judge, by his judgment dated  December  24, 1958 discharged the rule followcertain earlier decisions  of his  on  the same point.  An appeal filed  to  the  Division



Bench  under the Letters Patent was also dismissed  but  the learned  Judges granted a certificate under Art. 133(1)  (c) and that is how the appeal is before us. The  first, and possibly the only, question that  now  calls for  consideration  is whether the terms of s.  5  (aa)  are sufficient  and apt to provide for the vesting of the  right to  cut the trees when such right belonged, on the  date  of the  vesting,  not to the intermediary or  Zamindar  but  to another person to whom it had been granted under a  contract with the said intermediary.  The argument addressed to us by Mr. Chatterjee-learned counsel for the appellant-was that it was  only  the  land held or other rights  possessed  by  an intermediary  that became vested in the State and  that  cl. (aa)  did not deal with those cases where the right  to  the trees  had  been  severed from the right  to  the  land  and belonged to a third person on the date of the vesting.   For this purpose learned counsel laid stress on two features  of the  clause.  The first was the use of the  words  "together with" and the second the words "and held by an  intermediary or any other person".  Taking up, first, the word  "together with" the submission was that it was only where the right to the  trees constituted an integral part of the right to  the land  that  a vesting was effected of the latter  right  and that  where there had been a severance of the two rights  it was  only  the land that remained in the  intermediary  that became  vested  and not the right to the tree,-,.   We  feel unable  to  accept  this argument.   We  consider  that  the expression  "together" is obviously used to denote  not  the necessity for integrality between the land and the right  to cut  trees  by  way of common ownership  but  as  merely  an enumeration  of  the  items of property which  vest  in  the State.   In  the context, the word means no  more  than  the expression  "as well as" and imports no condition  that  the right  to the trees should also belong to the owner  of  the land.   It  may be added that the words "or to  the  produce thereof" occurring next also emphasis what we have just  now pointed  out, for if these words are read disjunctively,  as they must, in view of the conjunction "or", the words  would indicate  that not merely lands in the estate and the  right to the 5 trees but independently of them the right to the produce  of the trees on the land would also vest in the State. Coming  next  to  the words "and held  by  an  intermediary" learned  counsel  could not justifiably submit  an  argument that both the land and the right to the trees should  inhere in the intermediary to attract the operation of the  clause, because the words "held by an intermediary" are followed  by "any  other  person".  Obviously, that  other  person  i.e., person  other  than the intermediary, could have  the  right either  to the land, a right to the trees or a right to  the produce.  By the use of the expression "or any other person" therefore the legislature could obviously have intended only a person like the appellant who might not have any right  to the lands which are held by the intermediary but has a right to  the trees in that land.  Besides, it is not possible  to read the words "held by an intermediary or any other person" to  mean  that they are applicable only to cases  where  the entirety  of the interest-to the land, to the trees  and  to the  produce-are vested in a single person-be he the  inter- mediary  or  another person.  These  words  would  obviously apply  equally  to  cases  where  the  land  belongs  to  an intermediary and the right to the trees or to the produce of the trees to another person. This  apart,  there is one further aspect Of the  matter  to



which also reference might be made.  The amendment  effected by  the  addition  of  cl.  (aa)  to  s.  5  was  admittedly necessitated  by  certain  decisions of the  High  Court  of Calcutta which held that where an intermediary had granted a right  to  cut  trees or to forest produce,  the  rights  so conferred  were unaffected by the vesting provision in s.  5 of  the  Act  as  it stood before  the  amendment.   If  the argument  now put forward by Mr. Chatterjee is  accepted  it would mean that the amendment has achieved no purpose.   Un- doubtedly,  if  the words of the amendment, on  their  plain reading, are insufficient to comprehend the case now on hand the  fact  that  the  legislature  intended  to  overcome  a decision  of  the High Court could not  be  any  determining consideration  but, if as we find, the words  normally  bear that  construction, the circumstance that the amendment  was effected with a view to overcome certain decisions  rendered under the original enactment is not an irrelevant factor  to be taken into account. Mr. Chatterjee next submitted that the scheme of the Act was the provision of compensation for every interest acquired by the  State by virtue of the vesting under s. 5 and  that  as there  was  no  provision in the Act  for  compensating  the interest of persons 6 like  the  appellant, the Court should hold  that  such.  an interest  was  not within the vesting section-,-,.  5  (aa). This is, of course, a legitimate argument, and if there  had been  any  ambiguity in the construction of s. 5  (aa),  the circumstance referred to by learned counsel would  certainly have  great weight.  But in view of the plain words of S.  5 (aa)  which  we have discussed earlier, we do  not  find  it possible to accept the argument.  The absence of a provision for   compensation   might  render   the   vesting   section unconstitutional, and that indeed was the argument addressed to  the High Court and a matter which we  shall  immediately consider, but it cannot detract from the clear operation  of the words used in s. 5 (aa). A  further  point that was urged before the High  Court  was that the enactment was unconstitutional in that no provision was  made  for the award of compensation to persons  in  the position  of the appellant whose rights to cut trees  became vested  in the State.  Mr. Chatterjee pointed out  that  the learned judges of the High Court had upheld the validity  of the  enactment  by holding that compensation had,  in  fact, been  provided.  Learned counsel drew our attention  to  the provisions  quoted  and submitted that  the  learned  judges erred in their construction of these provisions and that, in fact, no compensation was provided, but this question  about the  constitutional  validity of the amending Act  does  not really  fall for consideration because learned  counsel  for the  appellant did not contest the position that  after  the enactment of the 17th Amendment to the Constitution, and the inclusion of West Bengal Act 1 of 1954 among those specified in Schedule IX, the absence of a provision for  compensation for  the  acquisition of the appellant’s  rights  would  not render  the  West Bengal Act or the  acquisition  thereunder unconstitutional. These  appeals  fail but in the circumstances  of  the  case there will be no order as to costs. Appeals dismissed.