Case: Shantabai Vs. State of Bombay &amp; Others

8. The petitioners husband, Balirambhau Doye, was the Zamindar of Pandharpur. On 26th April 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 26th April 1948, to 26th December 1960, and the consideration is Rs. 26,0009. 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 26th January 1951, was enacted10. Under S. 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-s. (1). The date fixed for the vesting in this area was 31st March 1951. After that, the petitioner was stopped from cutting any more trees. She therefore applied to the Deputy Commissioner, Bhandara, under S. 6 (2) of the Act for validating the lease. The Deputy Commissioner held, on 16th August 1955, that the section did not apply because it only applied to transfers made after 16th March 1950, whereas the petitioners transfer was made on 26th April 1948. But, despite that, he went on to hold that the Act did not apply to transfers made before 16th March 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 her lease and to the rules framed under S. 218 (A), C. P. Land Revenue Act11. 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 Commissioners order dated 16th August 195512. 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 says13. 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 19th March 1956. Because of this, the petitioner went up to the Government of Madhya Pradesh and made an application dated 27th September 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 Art. 32 of the Constitution on 26th August 1957.

Reasoning: I do not think it does. It is clumsily worded but I think that the real meaning is this. The petitioner is the proprietors wife and it seems that she was accustomed to do certain acts of management in his absence. The purpose of cl. (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 away23. 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 wood24. 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 Art. 32, the petitioner must establish a fundamental right. For the reasons given in Ananda Beheras case (A), I would hold that she has none. This runs counter to Chhotebhai Jethabhai Patels case (B), 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 Beheras case (A), especially as I think it lays down the law arightAs 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 of S. C. R.) : (at p. 110 of A. I. R.), but it is true that the learned Judges held that a writ petition lay26. 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 Behras case (A) :"If the petitioners rights are no more than the right to obtain future goods under the State of Goods Act, then that is a purely personal right arising out of a contract 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."Following the decision in Ananda Beheras case (A), I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is 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 Halsburys Laws of England (Simonds Edition) pages 620 and 621In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immovable property33. 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 granteeIn 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 makes 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 it35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not 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 astreesand not astimberand is standing and is about to be cut and used of the purposes of 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.