JUDGMENT
Sankar Prasad Mitra, C.J.
1. These Full Bench References have been made by a Division Bench consisting of Sabyasachi Mukharji and Murari Mohan Dutt, JJ. under paragraph 2 read with paragraph 7 of Chapter VII of the Appellate Side Rules for a final decision. The only question for determination is whether the lease-hold interest of the respondent Ukhara Forest and Fisheries Ltd., in 219.41 acres and 233.81 acres of forest lands situate in the district of Burdwan, vested in the State of West Bengal by virtue of the provisions of Clause (aa) of Sub-section (1) of Section 5 of the West Bengal Estates Acquisition Act, 1953, (hereinafter referred to as “the Act), with retrospective effect from Baisakh 1, 1362 B. S. corresponding to April 15, 1955, (sic) being the date of vesting as mentioned in the Notification dated August 16 1954, published under Section 4 of the Act.
2. Initially, the Act did not define a “forest”. Section 4(1) of the Act provided as follows:–
“Section 4: Notification vesting estates and rights of intermediaries.– (1) The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each of such estate situated in any district or part of a district specified in the notification, shall vest in the State free from all incumbrances.”
3. Then came Section 5 on the effect of notification. It said:
“Section 5. Effect of Notification.–Upon the due publication of a notification under Section 4, on and from the date of vesting–
(a) The estates and the rights of intermediaries in the estates, to which the
declaration applies, shall vest in the State free from all incumbrances; in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely:–
XX XX XX
(ii) rights in hats, bazars, ferries, forests fisheries, tolls and other sairati interests.
XX XX XX”
4. Our attention has not been drawn to any decision either of our court or of the Supreme Court when this was the state of Law.
5. In 1955, the West Bengal Estates Acquisition (Amendment) Act, 1955, came into force. By Section 2 of this Act a definition of ‘forest’ was inserted with retrospective effect. Section 2 ran thus:
“In Section 2 of the West Bengal Estates Acquisition Act, 1955….. after
clause (f) the following clause shall be inserted and shall be deemed always to have been inserted, namely:–
(ff) ‘Forest’ means a Land recorded in the record-of-rights prepared or revised for the purpose of this Act, under the classification Jhari, Jhati, Jangal, ban, salban or other similar terms”.
6. In the Statements of Objects and Reasons published in the Calcutta Gazette, Extraordinary, Part IV-A dated the 8th September, 1955, at page 1570 it has been stated, inter alia, that it has been necessary to amend the Act to provide that an intermediary shall not be entitled to retain any land comprised in a forest.
7. This amendment of 1955 came up for consideration before Sinha, J. in Ajit Kumar Bhagchi v. State of West Bengal, reported in (1957) 61 Cal WN 576. His Lordship’s judgment was delivered on the 17th December, 1956. His Lordship has held that where, by a transaction there was a sale to a contractor of a certain quantity of wood which originally belonged to the Maharajadhiraj of Darbhanga, the contractor having had paid the price had the right to cut the wood and remove it. Such a contractor cannot be said to have had an estate and it cannot be said that that estate had vested in the Government under the Act, taking away the contractor’s right to remove the goods which he had purchased and paid for. The transaction was a sale of the wood and the document did not create any interest in land.
8. Immediately after this judgment the State Government promulgated an Ordinance on the 16th January, 1957, omitting with retrospective effect the definition of ‘forest’, inserted by the 1955 Act. This was West Bengal Estates Acquisition (Amendment) Ordinance, 1957. The Ordinance became an Act published in the Calcutta Gazette, Extraordinary of the 9th March, 1957 known as “The West Bengal Estates Acquisition (Amendments) Act, 1957”. The result of omission of the definition of the ‘forest’ was that the word ‘forest’ in Section 5(a)(ii) of the Act was to have its dictionary meaning. In the Shorter Oxford English Dictionary Vol. 1, at page 735, the relevant meaning of ‘forest’ is “an extensive tract of land covered with under growth, sometimes inter-mingled with pasture”,
9. After the definition of ‘forest’ was omitted with retrospective effect in January, 1957, according to learned Counsel for the appellants, there were no reported decisions on the effect of this omission; but there were two decisions on ‘fisheries’ which were placed before us, In Ganesh Chandra Khan v. State of West Bengal, (1958) 62 Cal WN 49 Sinha J. has held that an incorporeal right of fishing unconnected with the soil is a benefit arising out of the land, that is to say, a “profit a prendre” and it vests in the State by virtue of the West Bengal Estates Acquisition Act. If there is any breach of contract, the petitioners may, Sinha J. has said, have a right to bring appropriate proceedings against the State in the form that they may be advised. This judgment was delivered on the 23rd April, 1958,
10. There is another judgment of Sinha J. reported in (1959) 63 Cal WN 933 (Aswini Kumar Das v. State of West Bengal). Here his Lordship has said that a right of fishing is not a right in land. A person having a right of fishing cannot be said to have any interest in non-agricultural land itself. He cannot be regarded as a non-agricultural tenant in respect of ‘jalkar’ which is an ‘easement’. It comes within the meaning of the expression ‘incumbrance’ as used in Clause (a) of Sub-section (1) of Section 5 of the Act, Since all estates and the rights of intermediaries in such estates have vested in the State Government free from all in-cumbrances following the notification under Section 4, the State Government has acquired ‘Jalkars’ free from right of fishing in respect thereto. Persons having
right of fishing cannot be deemed to be non-agricultural tenants and have no right to retain possession of the ‘jalkar’ as non-agricultural tenants on the basis of their leases. This judgment was delivered on July 20, 1959.
11. These judgments have no direct bearing on the West Bengal Estates Acquisition (Second Amendment) Act, 1957 which was published in the Calcutta Gazette, Extraordinary, Part III on January 8, 1958. This Act omitted the word ‘forest’ in Clause (ii) of Section 5(1)(a) of the Act and inserted a new clause, namely, Clause (aa) in Section 5 (1), both with retrospective effect. After these amendments with retrospective effect, Section 5(1) (a) and (aa) stood as follows:–
“5 (1). Upon the due publication of a notification under Section 4, on and from the date of vesting–
(a) the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all incumbrances; in particular and without prejudice to the generality of the provisions of this clause, everyone of the following rights which may be owned by an intermediary shall vest in the State, namely:–
(i) rights in subsoil, including rights in mines and minerals,
(ii) rights in hats, bazars, ferries, fisheries, tolls and other sairati interests,
(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.”
12. The Second Amendment Act of 1957 also introduced with retrospective effect the words “any other person” in the exception under Sub-section (1) to Section 6 which provides for retention of lands by intermediaries under certain circumstances. The effect of introduction of the words ‘or any other person’ in the said ‘exception’ is that not only an intermediary but also “any other person” is debarred from retaining any land comprised in a forest.
13. The Second Amendment Act was preceded by the West Bengal Estates Acquisition (Second Amendment) Ordinance, 1957. In the Statement of Objects of the Act it stated that since some difficulties had recently arisen because of recent
judgments in suits, it was felt necessary to remove the difficulties and the Ordinance was promulgated, inter alia, for acquisition of forest lands held by any person and payment of compensation therefor.
14. We asked learned Counsel for both the parties whether there were any judgments in suits creating difficulties in acquisition of forest lands held by any person. They were unable to place any judgment before us either reported or unreported. After the Second Amendment Ordinance of 1957 and the Second Amendment Act of 1957, however, there has been two sets of judgments of our Court both by learned single Judges and by Division Benches which have taken two different views. The judgment of Banerjee. J. delivered on April 6, 1965, in Ukhara Forests and Fisheries Ltd. v. The Sub-divisional Land Reforms Officer, Asansol reported in (1965) 69 Cal WN 810 quashing the notice under Section 10(2) of the Act issued to the petitioner to enable the State to take charge of the petitioner’s interests in certain forests and directing the respondents not to follow up the notice and making the rule absolute to that extent is the judgment under appeal.
15. In this judgment Banerjee, J. has noted that the word ‘forest’ was originally appearing in Section 5(1)(a)(ii). He has also noted that the definition of ‘forest’ in Section 2(ff) and the word ‘forest’ in Section 5(1)(a)(ii) were both omitted by the legislature as previously observed. Banerjee, J.’s view is that in these circumstances the notification under Section 4 of the Act could not apply to any forest or forest land. The learned Judge is conscious that Section 5(1)(aa) was incorporated in the Statute with retrospective effect. But, according to his Lordship the effect of such incorporation was to entitle the State Government to acquire forests with retrospective effect from the date of the Statute and no more. The learned Judge is of opinion that to contend that the effect of the amendment was such as made an anachronistic notification applicable to the type of land mentioned in Section 5(1)(aa) is not to contend correctly. That being the position, the notification under Section 4 of the Act published in 1954 and 1956 would not apply to the type of land brought under Section 5(1)(aa). If the Act had not been made applicable to forest land as in Section 5(1)(aa) under the procedure prescribed by the Act itself then, says Banerjee, J., the respondents acted
without jurisdiction in issuing a notice under Section 10(2) to the petitioners calling upon them to give up possession of the forest land in question.
16. This view of Banerjee, J. finds support in a Division Bench judgment of T. K. Basu and M. N. Roy JJ. delivered on August 27, 1976 in Sub-divisional Land Reforms Officer v. Ukhara Forest and Fisheries Ltd. reported in (1977) 81 Cal WN 361. The Division Bench has said that the word ‘forest’ appearing in Section 5(1)(a)(ii) and the definition of forest in Section 2(ff) of the Act, were omitted with retrospective effect by the West Bengal Estates Acquisition (Second Amendment) Act, 1957 and the West Bengal Estates Acquisition (Amendment) Act, 1957 respectively. By the Second Amendment Act, Sub-section (aa) was added to Section 5(1), which included forest lands in any estate which would vest in the State. A notification of declaration under Section 4 was issued on the I6th August, 1954 and another was issued on the 10th April, 1956 but no fresh notification was issued after Sub-section (aa) was inserted in Section 5(1). A notice, however, purported to be under Section 10(2) of the Act read with the above-mentioned notifications was issued to the respondent asking the respondent to hand over possession of some forest lands held by it. The Division Bench has expressed the view that in the absence of a fresh notification issued under Section 4, after the insertion of Sub-clause (aa) of Section 5(1) of the Act, the forest lands did not vest in the State and the notifications which were issued in 1954 and 1956 would not apply. The Division Bench has held that the notice purported to have been issued under Section 10(2) was invalid and must be quashed.
17. We shall now refer to the decisions which have taken a contrary view necessitating the present reference to the Full Bench. We shall first cite the Supreme Court’s judgment in Ram Kissen Sinha v. Divisional Forest Officer, Kankura, delivered on August 4, 1964 and . A five Judges Bench of the Supreme Court has said that the terms of Section 5(1)(aa) of the Act are sufficient and apt to provide for the vesting of the right to rut 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 con
tract with the intermediary. It was not the land held or other rights possessed by an intermediary only that became vested in the State. Clause (aa) of Section 5(1) also deals 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 vesting. The word ‘together’ in Section 5(1)(aa) is used, according to the Supreme Court, to denote not the necessity of integrating between the land and the right to cut trees by way of common ownership but merely an enumeration of the items of property which vest in the State. 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. If the words ‘or to the produce thereof’ occurring in the section 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 trees but independently of them the right to the produce of the trees on the land would also vest in the State. 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 would obviously have intended only a person 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 intermediary 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. The amendment effected by the addition of Clause (aa) to Section 5(1) 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 Section 5 of the Act as it stood before the amendment. If it is accepted, that it was only the land held or other right possessed by an intermediary that be
came vested in the State and that Clause (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 vesting, it would mean, says the Supreme Court, that the amendment has achieved no purpose.
18. This judgment of the Supreme Court throws considerable light on the controversy we have been called upon to settle. The judgment has fully discussed the scope and ambit of Section 5(1)(aa) which was introduced with retrospective effect. It is true that the Supreme Court has not specifically considered the problem of another notification under Section 4 in the light of Section 5(1)(aa) but has which appears to be against the issue of given sufficient indication of its mind another notification. We shall discuss this matter again in this judgment. Let us now deal with the other decisions on the point.
19. In Bhutnath Garai v. Divisional Forest Officer, Midnapore, (1958) 62 Cal WN 610, Smha, J. has referred to his earlier decision in Ajit Kumar Bhagchi’s case reported in (1957) 61 Cat WN 576, Sinha, J. has said that in Ajit Kumar Bhagchi’s case it was held, on the wording of a particular agreement therein that a prior sale of the ‘wood’ standing in the forest passed the title thereto to the transferee and the Government could not prevent the transferee from removing the wood, for which he had made full payment. Since the passing of the West Bengal Estates Acquisition (Second Amendment) Act. 1957 being West Bengal Act XXV of 1957 which came into operation on the 8th January, 1958, the law has been made all embracing and what vests in the Government is not only the land but all the trees standing thereon or the produce of the trees held by the intermediaries or any other person. Sinha, J. says that the words “any other person” cannot be read ejus-dem generis and cannot be applicable only to the kind of persons known as intermediaries. The rule of ejusdem generis can only apply where there is genus, or category. The word “intermediary”, means many things. It means an owner of the land and also a tenant. Therefore, it is obvious that it does not contain one genus or one category to which the disputed words may be said to belong. In applying the principles of ejusdem generis it is permissible to take into consideration the background and
the circumstances in which the particular legislation came to be passed. In the case of forests the dispute was as to whether the wood in a forest which has been sold to outsiders before the Estates Acquisition Act came into operation vested in the State. There can be little doubt that the amendment (West Bengal Act XXV of 1957) was intended to ensure that it did.
20. Sinha, J., delivered this judgment on April 23, 1958. He has taken the same view about the amended Section 5(1)(aa) which the Supreme Court took six years later in Ram Kissen Sinha’s case.
21. There is another judgment of Sinha, J. in Sakti Pada Roy v. State of West Bengal, . Here the learned Judge has inter alia, held that where a person is granted a right to enter a forest and to cut trees in future, it is a licence coupled with a grant. It is not a mere sale of trees but a sale of interest in an immovable property or arising therefrom within the provisions of Section 6(4) of the Act. Such a person is, therefore, an intermediary and his interest shall vest in Government under Section 5(1)(aa).
22. Sinha, J. followed his own judgments in Bhutnath Garai’s case, ( (1958) 62 Cal WN 610) and in Sakti Pada Roy’s case in Civil Rule No. 105 of 1956 (Dinanath Singh v. State of West Bengal). The petitioner’s case was that the respondents were preventing his entry into the forest in question and his cutting of timber therein. The learned Advocate for the petitioner admitted that the case was covered by the two other decisions of Sinha, J. noted above. The rule was discharged. The petitioner, however, preferred an appeal which was heard by H. K. Bose, C. J. and A. C. Sen, J. This was A. F. O. O No. 172 of 1959 (Dinanath Singh v. State of West Bengal). The Division Bench has stated as follows :
“In view of the decision in Ram Kissen Sinha v. The Divisional Forest Officer, Bankura (AIR 1965 SC 6251, this appeal is dismissed…..”
23. This Division Bench judgment delivered on Jan. 20, 1966, therefore, supports the view of Sinha, J.
24. The other Division Bench Judgment that has to be referred to is the one reported in (1974) 78 Cal WN 735 (Walamji Lalji v. Anil Charan Banpal). This is a judgment of K. J. Sengupta and R. Bhattacharya, JJ. The Division
Bench is, inter alia, of the view that the amended Section 5(1)(aa) of the Act is retrospective in operation and therefore a forest together with all the rights in the trees and in the produce thereof, though transferred even prior to its coming into operation must be deemed to have vested in the State of West Bengal. The benefit of the standing trees which draw nourishment from the soil underneath goes to the grantee. Such rights are profits a prendre, benefits arising from the land and therefore, an immovable property. Standing timber, growing crops or grass are specifically excluded by Section 3 of the Transfer of Property Act. Trees not so specifically excluded come within the category of immovable property.
25. It is clear, therefore, that two Division Benches of our Court have taken two different points of view with regard to the issue of another notification in the context of Section 5(1)(aa).
26. Mr. P. B. Burman appearing for the respondent, has argued before us that under Section 4(1) of the Act the State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in such estates situated in any district or part of a District specified in the notification, shall vest in the State free from all incumbrances. This, according to Mr. Burman, is an empowering provision. The State Gvernment may proceed step by step in any district or part of a district. In Sub-section (3) of Section 4 it is provided that every such notification shall be published in the first instance, in at least two issues of each of two newspapers (one of which must be in the Bengali language) circulating in West Bengal and also by affixing at each police station and sub-registry office within the district or part of the district, specified in the notification and by beat of drums and in any other manner, if any. as may be prescribed.
27. Mr. Burman’s contention is that reading Sub-sections (1) and (3) together it is apparent that the legislature’s intention was that a real notification and not a notional notification has to be issued giving notice to the persons concerned that their estates or rights in estates are to be affected.
28. In the instant case, Learned Counsel has urged, the effect of inclusion or omission of Section 2(ff) has been that by the
original notification under Section 4 forest land did not vest in the State. The notification could not and did not apply to forests’. If an Act gives the definition of a word or expression, the Court cannot go beyond that definition. And When the definition is omitted the Court can resort to the normal meaning only. Mr. Burman has invited us, from this point of view, to uphold the judgment under appeal. He does not dispute that after the introduction of Section 5(1)(aa) it may be difficult for him to support the rights in forests so long enjoyed by the respondent but he has strongly urged that those rights have not yet been taken away by the State Government. The State Government must make a separate notification under Section 4 to take away the rights envisaged by Section 5(1)(aa).
29. Recapitulating the history of the relevant provisions of the Act, we find that the word ‘forest’ was at the very inception included in Section 5(1)(a)(ii); but there was no definition of forest in Section 2. In other words, it has always been the intention of the legislature that “forests” should vest in the State. A definition of “forest” was sought to be inserted in 1955 by introduction of Section 2(ff). But this was a restricted definition which was given retrospective effect. The legislature then omitted the definition altogether in 1957. Later on the West Bengal Estates Acquisition (Second Amendment) Act, 1957 was passed. Section 3 of this Second Amendment Act runs thus :
“3. Amendment of Section 5. — In Section 5 of the said Act–
(a) in Sub-clause (ii) of Clause (a), the word ‘forest’ shall be omitted and be deemed always to have been omitted; and
(b) after Clause (a), the following clause shall be inserted and be deemed always to have been inserted, namely:
(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.”
30. The effect of a ‘deeming’ provision like the one cited above was explained by Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council 1952 AC 109 in these words :
“If you are bidden to treat an imaginary state of affairs as real, you must
surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably had flowed from or accompanied it ….. The Statute says
that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
31. This view of Lord Asquith and the view of Lord Justice James in ex parte Walton : In re. Levy, (1881) 17 Ch D 746 at p. 756 were accepted by the Supreme Court in State of Bombay v. Pandurang, , at p. 246. The Supreme Court has said that when a Statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
32. In an earlier judgment in Shamrao v. District Magistrate, Thana, , the Supreme Court has stated that when a subsequent Act amends an earlier one in such a way as to incorporate itself, 01 a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. One of the authorities, the Supreme Court relies on, is Crawford’s Statutory Construction at p. 110. The learned author has stated, inter alia,
“Amendatory Statutes are sometimes nearly synonymous with curative acts so far as effect is concerned, since they are sometimes enacted to serve the same purpose. Yet their scope is more comprehensive. They may be defined as those statutes which make an addition to or operate to change the original law so as to effect an improvement therein, or to more effectively carry out the purposes for which the original law was passed. Strictly speaking, however, an amendatory Act is not regarded as an independent Act. All or part of the old
Act is permitted to remain. But where a section of a Statute is amended, the original ceases to exist and the new section supersedes it and becomes a part of the Law just as if the amendment had always been there…..”
33. Section 3 of the West Bengal Estates Acquisition (Second Amendment) Act, 1957, which we have quoted above, appears to us, in the context of the history of this legislation, to be a curative provision to more effectively carry out the purposes for which the original enactment was intended. This curative provision became a part of the Statute as if it had always been there.
34. In Carson v. Carson, (1964) 1 WLR 511 at p. 517, Scarman J. said :
“The rule against retrospective effect of Statutes is not a rigid or inflexible rule but is one to be applied always in the light of the language of the Statutes and the subject-matter with which the Statute is dealing”.
35. These are the principles which, in our opinion, should be invoked to solve thp present controversy.
36. We are taking this view inasmuch as we are convinced that the State Legislature had always intended to bring ‘forests’ and their produce within the purview of the Act; but owing to the view expressed by this Court that the language used was not sufficient to fulfil the real object of the legislature a retrospective amendment in the form of Section 5(1)(aa) had to be introduced. The Supreme Court in B. Banerjee v. Anita Pan, has observed :
“Law is a social science and constitutionally turns not on abstract principles or rigid canons but concrete realities and given conditions; for the rule of law stems from the rule of life…..
Judges act not by hunch but on hard facts properly brought on record and sufficiently strong to rebuff the initial presumption of constitutionality of legislation. Nor is the Court a third chamber of the House to weigh whether it should legislate retrospectively or draft the clause differently ….. Recondite
instances and casual hardships cannot deflect constitutional construction of social legislation, if the main thrust of the Statute relates to social evil of dimensions deserving to be antidoted by antedated legislative remedy.”
37. It is beyond doubt that both the Act and its Second Amendment in 1957
are social and beneficial legislations and: by Section 5(1)(aa) the legislature deliberately introduced in antedated legislation to counteract the effect of judgments of Courts that cutting off of trees in a forest under a lease was not affected by the provisions of the Act.
38. The next question is whether a notification under Section 4(1) issued on the 16th August, 1954 can be treated as a notification covering cases under Section 5(1)(aa) which came into effect retrospectively. The Supreme Court in the State of Bombay v. F. N. Balsara, AIR 1951 SC 318 at p. 329 in para 25 has laid down that a notification issued in exercise of the power conferred by an Act has the force of law and must be read along with the Act. Applying this principle to the instant case it seems to us that if the Act is amended retrospectively, then a notification issued under the Act which has the force of law has also to be read retrospectively.
39. Moreover, under the provisions of Section 4 read with Section 5, no estate belonging to an intermediary or any other person would vest in the State unless a notification as contemplated under Section 4(1) of the Act is issued. The Supreme Court, has derided in Ram Kissen’s Case , that because of Section 5(1)(aa) all interests in forests held by an intermediary or any other person have vested in the State, The Supreme Court, in rendering this opinion, must have presupposed a notification under Section 4(1).
40. The dominant intention of the legislature can be ascertained from other provisions of the Act as well. Section 6 of the Act has made provisions for the “Right of intermediary to retain certain lands”. The exception to Section 6(1) is as follows:–
“Subject to the provisions contained in Sub-section (3), nothing in this sub-section shall entitle an intermediary or any other person to retain any land comprised in any forest or any land comprised in any embankment as defined in the “Bengal Embankment Act, 1882″, the proper maintenance of which should, in the opinion of the State Government be taken over by the State Government in the public interest.”
41. The words “shall entitle an intermediary to retain any land comprised in a forest” were in this exception since the beginning. The words “or any other person” after the word ‘intermediary’ were
introduced with retrospective effect by the Second Amendment Act of 1957. This shows that at no point of time did the legislature intend that ‘forest’ could be retained by an intermediary. In this connection we may also refer to the exception to Section 6(3). This exception was added with retrospective effect by Section 3 (2) of the West Bengal Estates Acquisition (Amendment) Act, 1963 (West Bengal Act XXII of 1963). The exception runs thus: —
“In the case of land allowed to be retained by an intermediary or lessee in respect of a tea garden, such land may include any land comprised in a forest if, in the opinion of the State Government, the land comprised in a forest is required for the tea garden.”
42. This is another example of the legislature’s dominant intention. From the first exception quoted above it is clear that ‘forests’ vested in the State by reason of the notification under Section 4(1).
43. It is relevant to note in this connection that Rule 3 (1) of the West Bengal Estates Acquisition Rules. 1954 provides that the notification referred to in Sub-section (1) of Section 4 shall be in Form No. 1, appended to these rules or in a form substantially similar thereto, Form No. 1 is in these terms:
RULE 3 (1)
NOTIFICATION
No….. Dated the….. In exercise of
the power conferred by Sub-section (1) of Section 4 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954), the Governor is pleased to declare that with effect from the …..
all estates and the rights of every intermediary in each estate situated in the district of/in the part of the district of ….. specified in the Schedule below shall vest in the State free from all encumbrances.
The Schedule
(Here specify the part of the district.) Bv order of the Governor,
………….
(Signature) Secy. to the Govt. of West Bengal.
44. If we read the provisions of Rule 3 (1) and the form of the notification quoted above along with Section 4(1) of the Act, it appears clear that when the first notification was issued on the 16th August, 1954, the rights of all intermediaries in areas covered by the notification in all forests vested in the State free from all incumbrances. The Second Amendment Act of 1957 has with retrospective effect included the rights of any other person as well.
45. It is, therefore, idle to contend that forest lands together with all rights to the trees therein or to the produce thereof and held by an intermediary or any other person did not vest in the State under the notification already issued in the exercise of power conferred by Section 4(1) of the Act unless a fresh notification relating to these rights was issued after the Second Amendment Act. 1957.
46. Our answer to the question referred to the Full Bench therefore, is that the lease-hold interests of the respondent in the forest lands being the subject matter of this appeal, vested in the State of West Bengal by virtue of the provisions of Clause (aa) of Sub-section (1) of Section 5 of the Act, with retrospective effect from Baisakh 1, 1362 B. S. corresponding to April 15, 1955, being the date of vesting as mentioned in the Notification dated August 16, 1954, published under Section 4 of the Act.
47. For all the reasons aforesaid, these appeals are allowed. The judgment and orders under appeal are set aside. The rules are discharged. Interim orders, if any, are vacated. We make no order as to costs.
48. Mr. Burman appearing for the respondent has made an oral application for a certificate for leave to appeal to the Supreme Court. We are unable to grant this certificate in view of the fact that our judgment is based on well known principles of construction of statutes and certain judgments of the Supreme Court which we have referred to in our judgment. We are of opinion that no substantial question of law of general importance arises in these appeals which requires the decision of the Supreme Court.
Deb, J.
I agree.
S.K. Datta, J.
I agree.
