104 of 1957
Petition under Article 32 of the Constitution for the enforcement of fundamental rights
R V section Mani for the petitioner
267 H N Sanyal Additional Solicitor General of India R Ganapathy Iyer and R H Dhebar for respondents Nos 1 3
NN Keshwani for I N Shroff for respondent No 4 1958
March 24
The Judgment of Das C J Venkatarama Aiyar section K Das and Sarkar JJ
was delivered by Das C J Bose J delivered a separate Judgment
DAS C J We have had the advantage of perusing the judgment prepared by our learned Brother Bose J which he will presently read
While we agree with him that this application must be dismissed we would prefer to base our decision on reasons slightly different from those adopted by our learned Brother
The relevant facts will be found fully set out by him in his judgment
The petitioner has come up before us on an application under article 32 of the Constitution praying for setting aside the order made by the respondent No 3 on March 19 1956 directing the petitioner to stop the cutting of forest wood and for a writ order or direction to the respondents not to interfere in any manner whatever with the rights of the petitioner to enter the forests appoint her agents obtain renewal passes manufacture charcoal and to exercise other rights mentioned in the petition
Since the application is under article 32 of the Constitution the petitioner must make out that there has been an infringement of some fundamental right claimed by her
The petitioner s grievance is that the offending order has infringed her fundamental right under article 191f and 191g
She claims to have derived the fundamental rights which are alleged to have been infringed from a document dated April 26 1948 whereby her husband Shri Balirambhau Doye the proprietor of certain forests in eight several Tehsils granted to her the right to take and appropriate all kinds of wood Building wood fuel wood and bamboos etc from the said forests for a period from the 268 date of the document up to December 26 1960
The terms of the document have been sufficiently set out in the judgment to be presently delivered by Bose J and need not be set out here
The petitioner has paid Rs 26000 as consideration for the rights granted to her
The genuineness of this document and the good faith of the parties thereto have not been questioned
The document however has not been registered under the Indian Registration Act
The nature of the rights claimed by the petitioner has to be ascertained on a proper interpretation of the aforesaid document
We do not consider it necessary to examine or analyse the document minutely or to finally determine what we may regard as the true meaning and effect thereof for as will be presently seen whatever construction be put on this document the petitioner cannot complain of the breach of any of her fundamental rights
If the document is construed as conveying to her any part or share in the proprietary right of the grantor then not being registered under the Indian Registration Act the document does not affect the immoveable property or give her any right to any share or interest in the immoveable property
Assuming that she had acquired a share or interest in the proprietary right in spite of the document not having been registered even then that right has vested in the State under section 3 of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 and she may in that case only claim compensation if any is payable to her under the Act
If the document is construed as purely a license granted to her to enter upon the land then that license must be taken to have become extinguished as soon as the grantor s proprietary rights in the land vested in the State under section 3 of the Act
if the document is construed as a license coupled with a grant then the right acquired by her would be either in the nature of some profits a prendre which being an interest in land is immoveable property or a purely personal right under a contract
If the document is construed as having given her a profits a prendre which is an interest in land then also 269 the document will not affect the immoveable property and will not operate to transmit to the petitioner any such profits a prendre which is in the nature of  immoveable property as the document has not been registered under the Indian Registration Act as has been held in Ananda Behera vs The State of Orissa 1
If it is a purely personal right then such right will have no higher efficacy than a right acquired under a contract
If therefore the document is construed as a matter of contract then assuming but without deciding that a contract is a property within articles 191f or 311 of the Constitution she cannot com plain for the State has not acquired or taken possession of her contract in any way
The State is not a party to the contract and claims no benefit under it
The petitioner is still the owner and is still in possession of that contract regarded as her property and she can hold it or dispose of it as she likes and if she can find a purchaser
The petitioner is free to sue the grantor upon that contract and recover damages by way of compensation
The State is not a party to the contract and is not bound by the contract and accordingly acknowledges no liability under the contract which being purely personal does not run with the land
If the petitioner maintains that by some process not quite apparent the State is also bound by that contract even then she as the owner of that contract can only seek to enforce the contract in the ordinary way and sue the State if she be so advised as to which we say nothing and claim whatever damages or compensation she may be entitled to for the alleged breach of it
This aspect of the matter does not appear to have been brought to the notice of this Court when it decided the case of Chhotabai Jethabai Patel and Co vs The State of Madhya Pradesh 2 and had it been so done we have no doubt that case would not have been decided in the way it was done
For the reasons stated above whatever rights if any may have accrued to the petitioner under that document on any of the several interpretations noted above the cannot complain of the infringement by the 1   2  270 State of any fundamental right for the enforcement of which alone a petition under article 32 is maintainable
We therefore agree that this petition should be dismissed with costs
BOSE J This is a writ petition under article 32 of the Constitution in which the petitioner claims that her fundamental right to cut and collect timber in the forests in question has been infringed
The petitioner s husband Balirambhau Doye was the Zamindar of Pandharpur
On April 26 1948 he executed an unregistered document that called itself a lease in favour of his wife the petitioner
The deed gives her the right to enter upon certain areas in the zamindari in order to cut and take out bamboos fuel wood and teak
Certain restrictions are put on the cutting and the felling of certain trees is prohibited
But in the main that is the substance of the right
The term of the deed is from April 26 1948 to December 26 1960 and the consideration is Rs 26000
The petitioner says that she worked the forests till 1950
In that year the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 which came into force on January 26 1951 was enacted
Under section 3 of that Act all proprietary rights in the land vest in the State on and from the date fixed in a notification issued under sub section
The date fixed for the vesting in this area was March 31 1951
After that the petitioner was stopped from cutting any more trees
She therefore applied to the Deputy Commissioner Bhandara under section 62 of the Act for validating the lease
The Deputy Commissioner held on August 16 1955 that the section did not apply because it only applied to transfers made after March 16 1950 whereas the petitioner s transfer was made on April 26 1948
But despite that he went on to hold that the Act did not apply to transfers made before March 16 1950 and so leases before that could not be questioned
He also held that the lease was genuine and ordered that the petitioner be allowed to work the forests subject to the conditions set out in 271 her lease and to the rules framed under section 218A of the C P Land Revenue Act
It seems that the petitioner claimed compensation from Government for being ousted from the forests from 1951 to 1955 but gave up the claim on the understanding that she would be allowed to work the forests for the remaining period of the term in accordance with the Deputy Commissioner s order dated August 16 1955
She thereupon went to the Divisional Forest Officer at Bhandara and asked for permission to work the forests in accordance with the above order
She applied twice and as all the comfort she got was a letter saying that her claim was being examined she seems to have taken the law into her own hands entered the forests and started cutting the trees or so the Divisional Forest Officer says
The Divisional Forest Officer thereupon took action against her for unlawful cutting and directed that her name be cancelled and that the cut materials be forfeited
This was on March 19 1956
Because of this the petitioner went up to the Government of Madhya Pradesh and made an application dated September 27 1956 asking that the Divisional Forest Officer be directed to give the petitioner immediate possession and not to interfere with her rights
Then as nothing tangible happened she made a petition to this Court under article 32 of the Constitution on August 26 1957
The foundation of the petitioner s rights is the deed of April 26 1948
The exact nature of this document was much canvassed before us in the arguments by both sides
It was said at various times by one side or the other to be a contract conferring contractual rights a transfer a licence coupled with a grant that it related to move able property and that contra it related to immoveable property
It will be necessary therefore to ascertain its true nature before I proceed further
As I have said the document calls itself a  lease deed  but that is not conclusive because the true nature of a document cannot be disguised by labelling it something else
272 Clause 1 of the deed runs  We executed this lease deed  and which by this deed have been leased out to you in consideration of Rs 26000 for taking out timber fuel and bamboos etc
 At the end of clause 2 there is the following paragraph  You No 1 are the principal lessee while Nos 2 and 3 are the sub lessees
 Clause 3 contains a reservation in favour of the proprietor
A certain portion of the cutting was reserved for the proprietor and the petitioner was only given rights in the remainder
The relevant passage runs  Pasas 16 17 18 are already leased out to you in your lease
The cutting of its wood be made by the estate itself
Thereafter whatever stock shall remain standing it shall be part of your lease
Of this stock so cut you shall have no claim whatsoever
 Clause 5 runs  Besides the above pasas the whole forest is leased out to you
Only the lease of the forest woods is given to you
 Clause 7 states  The proprietorship of the estate and yourself are in a way co related and you are managing the same and therefore in the lease itself and concerning it you should conduct yourself only as a lease holder explicitly Only in the absence of the Malik you should look after the estate as a Malik and only to that extent you should hold charge as such and conduct yourself as such with respect  to sub lessees
 The rest of this clause is Without the signatures of the Malik nothing would be held valid and acceptable including even your own pasas transactions  
The lease under reference shall not be alterable or alienable by any body
 The only other clause to which reference need be made is clause 8
It runs 273 You should not be permitted to recut the wood in the area which was once subject to the operation of cutting
otherwise the area concerned will revert to the estate
The cutting of the forests should be right at the land surface and there should not be left any deep furrows or holes
 I will examine the seventh clause first
The question is whether it confers any proprietary rights or interest on the petitioner
I do not think it does
It is clumsily worded but I think that the real meaning is this
The petitioner is the proprietor s wife and it seems that she was accustomed to do certain acts of management in his absence
The purpose of clause 7 is to ensure that when she acts in that capacity she is not to have the right to make any alteration in the deed
There are no words of transfer or conveyance and I do not think any part of the proprietary rights or any interest in them are conveyed by this clause
It does not even confer rights of management
It only recites the existing state of affairs and either curtails or clarifies powers as manager that are assumed to exist when the proprietor is away
Although the document repeatedly calls itself a lease it confers no rights of enjoyment in the land
Clause 5 makes that clear because it says Only the lease of the forest woods is given to you  
In my opinion the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood
To that extent the matter is covered by the decision in Chhotabhai Jethabhai Patel  Co vs The State of Madhya Pradesh 1 and by the later decision in Ananda Behera vs The State of Orissa 2 where it was held that a transaction of this kind amounts to a licence to enter on the land coupled with a grant to out certain trees on it and carry away the wood
In England it is a profit a prendre because it is a grant of the produce of the soil  like grass or turves or trees 
See 12 Halsbury s Laws of England Simonds Edition page 522 Note m
2 1953SCR476483
2   922 923
35 274 It is not a  transfer of a right to enjoy the immoveable property  itself section 105 of the Transfer of Property Act but a grant of a right to enter upon the land and take away a part of the produce of the soil from it
In a lease one enjoys the property but has no right to take it away
In a profit a prendre one has a licence to enter on the land not for the purpose of enjoying it but for removing something from it namely a part of the produce of the soil
Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act of 1950
But I need not consider that because this being a writ petition under article 32 the petitioner must establish a fundamental right
For the reasons given in Ananda Behera s case 1 I would hold that she has none
This runs counter to Chhotebhai Jethabhai Patel s case but as that was a decision of three Judges and the other five I feel that we are bound to follow the later case that is to say Ananda Behera s case 1 especially as I think it lays down the law aright
The learned counsel for the petitioner contended that his client s rights flowed out of a contract and so relying on Chhotebhai Jethabhai Patel s case2 he contended that he was entitled to a writ
As a matter of fact the rights in the earlier case were held to flow from a licence and not from a contract simpliciter see page 483 but it is true that the learned Judges held that a writ petition lay
In so far as the petitioner rests her claim in contract simpliciter I think she has no case because of the reasons given in Ananda Behera s case 1  If the petitioners  rights are no more than the right to obtain future goods under the Sale of Goods Act then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right
 To bring the claim under article 191f or article 311 1 19552 SCR 919
2  275 something more must be disclosed namely a right to property of which one is the owner or in which one has an interest apart from a purely contractual right
Therefore the claim founded in contract simpliciter disappears
But in so far as it is founded either on the licence or on the grant the question turns on whether this is a grant of moveable or immovable property
Following the decision in Ananda Behera s case 1 I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is a benefit that arises out of land
There is no difference there between the English and the Indian law
The English law will be found in 12 Halsbury s Laws of England Simonds Edition pages 620 and 621
But that still leaves the question whether this is moveable or immoveable property
Under section 3 26 of the General Clauses Act it would be regarded as  immovable property  because it is a benefit that arises out of the land and also because trees are attached to the earth
On the other hand the Transfer of Property Act says in section 3 that standing timber is not immoveable property for the purposes of that Act and so does section 2 6 of the Registration Act
The question is which of these two definitions is to prevail
Now it will be observed that  trees  are regarded as immoveable property because they are attached to or rooted in the earth
Section 26 of the Registration Act expressly says so and though the Transfer of Pro party Act does not define immoveable property beyond saying that it does not include  standing timber growing crops or grass  trees attached to earth except standing timber are immovable property even under the Transfer of Property Act because of section 3 26 of the General Clauses Act
In the absence of a special definition the general definition must prevail
Therefore trees except standing timber are immoveable property
Now what is the difference between standing timber and a tree  It is clear that there must be a distinction because the Transfer of Property Act draws one in the definitions of  immoveable property  and 1  276  attached to the earth   and it seems to me that the distinction must lie in the difference between a tree and timber
It is to be noted that the exclusion is only of standing timber  and not of  timber trees
Timber is well enough known to be  wood suitable for building houses bridges ships etc whether on the tree or cut and seasoned
Webster s Collegiate Dictionary
Therefore  standing timber  must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing
I not it is still a tree because unlike timber it will continue to draw sustenance from the soil
Now of course a tree will continue to draw sustenance from the soil so long as it continues to stand and live and that physical fact of life cannot be altered by giving it another name and calling it  standing timber 
But the amount of nourishment it takes if it is felled at a reasonably early date is so negligible that it can be ignored for all practical purposes and though theoretically there is no distinction between one class of tree and another if the drawing of nourishment from the soil is the basis of the rule as I hold it to be the law is grounded not so much on logical abstractions as on sound and practical common sense
It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged and here this is the shape it has taken
The distinction set out above has been made in a series of Indian cases that are collected in Mulla s Transfer of Property Act 4th edition at pages 16 and 21
At page 16 the learned author says Standing timber are trees fit for use for building or repairing houses
This is an exception to the general rule that growing trees are immoveable property At page 21 he says Trees and shrubs may be sold apart from the land to be cut and removed as wood and in that case they are moveable property
But if the transfer 277 includes the right to fell the trees for a term of years so that the transferee derives a benefit from further growth the transfer is treated as one of immoveable  property The learned author also refers to the English law and says at page 21  In English law an unconditional sale of growing trees to be cut by the purchaser has been held to be a sale of an interest in land but not so if it is stipulated that they are to be removed as soon as possible
 In my opinion the distinction is sound
Before a tree can be regarded as  standing timber  it must be in such a state that if cut it could be used as timber and when in that state it must be cut reasonably early
The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that
It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market
But however that may be the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee
Now how does the document in question regard this In the first place the duration of the grant is twelve years
It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now
Therefore it is not a mere sale of the trees as wood
It is more
It is not just a right to cut a tree but also to derive a profit from the soil itself in the shape of the nourishment in the soil that goes into the tree and maker it grow till it is of a size and age fit for felling as timber and if already of that size in order to enable it to continue to live till the petitioner chooses to fell it
This aspect is emphasised in clause 5 of the deed where the cutting of teak trees under 12 feet is prohibited
But as soon as they reach that girth within the twelve years they can be felled
And clause 4 speaks of a first cutting and a second cutting and a 278 third cutting
As regards trees that could be cut at once there is no obligation to do so
They can be left standing till such time as the petitioner chooses to fell them
That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil in other words they are to be regarded as trees and not as timber that is standing and is about to be cut and used for the purposes for which timber is meant
It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years
and further of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth
Such trees cannot be regarded as timber that happens to be standing because timber as such does not draw nourishment from the soil
If therefore they can be left for an appreciable length of time they must be regarded as trees and not as timber
The difference lies there
The result is that though such trees as can be regarded as standing timber at the date of the document both because of their size and girth and also because of the intention to fell at an early date would be moveable property for the purposes of the Transfer of Property and Registration Acts the remaining trees that are also covered by the grant will be immoveable property and as the total value is Rs 26000 the deed requires registration
Being unregistered it passes no title or interest and therefore as in Ananda Behera s case 1 the petitioner has no fundamental right which she can enforce
My lord the Chief Justice and my learned brothers prefer to leave the question whether the deed here is a lease or a licence coupled with a grant open because on either view the petitioner must fail
But we are all agreed that the petition be dismissed with costs
Petition dismissed


Summary:
After the election of Members the first meeting of the Aurangabad Municipal Corporation was held on May 6 1983 at 2 PM and the Municipal Commissioner announced that the polling for the offices of Mayor Deputy Mayor and Members of the standing Committee would commence from 230 pm onwards
But at 230 PM some of the Councillors belonging to the Opposition Party sat on the ballot boxes and some others surrounded the Municipal Commissioner and demanded that the meeting be adjourned to a subsequent date
The Councillors belonging to the ruling party demanded that the meeting and election be held later on that day
Total confusion and bedlam prevailed and the rival groups started throwing Chairs at each other leading to a pandemonium
It was a free for all and even outsiders were present
When the situation was brought under control the Municipal Commissioner announced that the meeting would continue and the elections would be held at 430 pm
The petitioner filed a protest at 415 pm stating that the meeting had been adjourned by the Municipal Commissioner for the day and therefore the holding of the meeting later on the same day would be improper and illegal
Thereafter the opposition group abstained from participating in the meeting held at 430 pm in which Respondents 1 and 2 were declared elected as Mayor and Deputy Mayor respectively 726 and Respondents 3 8 as Members of the Standing Committee
In a Writ Petition filed before the High Court the appellant questioned the election on the basis that the meeting in which the election was held was invalid
The High Court held that the meeting was not adjourned for the day or sine die but was only postponed to be held as soon as peace was restored on the very day and upheld the election of Respondents 1 to 8
Against the judgment of the High Court the petitioner has filed the present special leave petition
On behalf of the petitioner it was contended that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die
The contention of the Respondents was that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 245 pm and the adjourned meeting held at 430 pm was a continuation of the original meeting and no new notice of an adjourned meeting had to be given
It was also contended that there was no warrant for interference under article 136 of the Constitution since a finding of fact had been reached by the High Court on consideration of the material on record
Dismissing the petition  HELD 1
A properly convened meeting cannot be postponed
The proper course to adopt is to hold the meeting as originally intended and then and there adjourn it to a more suitable date
If this course be not adopted members will be entitled to ignore the notice of postponement and if sufficient to form a quorum hold the meeting as originally convened and validly transact the business thereat
Even if the relevant rules do not give the chairman power to adjourn the meeting he may do so in the event of disorder
Such an adjournment must be for no longer than the chairman considers necessary and the chairman must so far as possible communicate his decision to those present
739F G 21 In the instant case the High Court was right in holding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6 1988 was not adjourned for the day  or adjourned sine die  but had only been put off to a later hour ie the proceedings had only been suspended to re commence when peace and order were restored
740D E 727 22 There is nothing on record to sustantiate the petitioner s submission that the first meeting scheduled to be held on May 6 1988 at 2 PM was adjourned for the day  or adjourned sine die  without transacting any business ie without consideration of the agenda for the day
On the contrary it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 pm as scheduled and the Municipal Commissioner declared that the polling would commence from 230 pm onwards
The trouble started at 230 pm when the Councillors belonging to the petitioner s party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them
There was a pre determined plan on their part not to allow the first meeting to be held on that day
But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day
In the prevailing situation the Municipal Commissioner had no other alternative but to adjourn the meeting
Under the scheme of the Act when the term of the elected Councillors is a period of five years which in terms of sub section 2 of section 6 of the Act is deemed to commence on the date of the first meeting the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die
If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail it would give rise to a serious anomaly
The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 62 of the Act for commencement of the term of the Councillors
The fact that the Municipal Commissioner did not leave the House or vacate the seat lends support to the version that he had merely suspended the proceedings till order was restored
737A E Smt
Menaka Bala Dasi vs Hiralal Gobindalal  Anr and Sheokumar Shashtri vs Municipal Committee Rajnandgaon AIR 1964 MP 195 Distinguished
Shackelton on the Law  Practice of Meeting 7th Edn
p 44 Horsley s Meetings Procedure Law and Practice 2nd Edition p 84 para 1002 referred to