judgement:
Special Leave Petition (Civil) No. 7508 of 1988.
From the Judgment and order dated 28.6.1988 of the Bombay High Court in Civil Writ Petition No. 800 of 1988.
728 S.N. Kacker, U.R. Lalit, V.D. Joshi, B.D. Joshi, S.C. Bora and Kailash Vasdev for the Petitioner.
Dr. Y.S. Chitale, V.A. Bobde, V.J. Francis, N.M. Popli and Miss Almjit Chauhan for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This special leave petition is directed against the judgment and order of the High Court of Bombay dated June 28, 1988 upholding the election of respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan as Mayor and Deputy Mayor respectively, and respondents nos.
3 8 as Members of the Standing Committee at the first meeting of the Aurangabad Municipal Corporation at the Alankar Hall, held on May 6, 1988 at 2 p.m.
The issue involved is whether the first meeting of the Corporation called for that day at 2.45 p.m. by the Municipal Commissioner, respondent No. 9, who presided over the meeting, was adjourned for the day or adjourned sine die and therefore had to be called on some subsequent date to be fixed by him and thus necessitated the giving of seven days ' clear notice as required by r. 1(h), Chapter II of the Rules framed under section 453 of the Bombay Provincial Municipal Corporation Act, 1949.
Since the question involved was a matter of moment and the affidavits filed by the petitioner Chandrakant Khaire, the leader of the Shiv Sena Party which is the largest single group in the Corporation consisting of 18 Concillors, and by some of the Councillors as well as their supporters, and the affidavits in opposition filed by the Party in power Congress I which has formed a coalition with the splinter groups commanding a majority of 32 Councillors in a House of 60, raise controverted facts as to whether the proceedings of the meeting had been adjourned sine die or merely suspended, we thought it better to have the minutes of the proceedings before us.
Shri Vinod Bobde, learned counsel appearing for the Municipal Commissioner has placed the minute books written in Marathi along with a translation thereof in English.
At the last occasion we were left with the impression that the word used by the Municipal Commissioner was 'tahkub ' while adjourning the meeting at 2.45 p.m. amidst unprecedented scenes of complete disorder, commotion and pendemonium.
We now find the word used in the minutes is 'sthagit ' but in the translation furnished the word used is 'adjourned '.
The facts revealed in the counter affidavits filed by the Munici 729 pal Commissioner, Collector and the Superintendent of Police show that a serious law and order situation had arisen due to which both the Collector and the Superintendent of Police had to rush to the venue of the meeting.
They both have sworn to the fact that not only the Councillors but many outsiders were present in the hall where the meeting was being held.
There were also a large number of supporters of the rival parties, spectators and journalists.
The Municipal Commissioner was surrounded by some 20 25 persons apart from the Councillors, one group insisting upon the meeting being adjourned for the day i.e. the Councillors belonging to the majority Shiv Sena Party while the other group consisting of the Congress I Party and the splinter groups forming the coalition demanding that the meeting be continued.
The Collector has sworn to the fact that there was 'total confusion and bedlam inside the hall apart from the fact that the entire atmosphere was surcharged with commotion ' and no business could be transacted.
He has further sworn to the fact that respondent No. 9, the Municipal Commissioner, the presiding officer, appeared to be 'in a very agitated state of mind ' and told him that he could not hold the meeting in the unruly and disorderly situation prevailing and complained that despite his repeated requests to the Councillors to maintain peace, it had no effect and they kept on shouting, raising slogans and fighting amongst themselves and thereby making it impossible for him to transact any business.
The meeting was scheduled to be held at 2 p.m. and respondent No. 9 announced that the polling for the offices of Mayor, Deputy Mayor and Members of the Standing Committee would commence from 2.30 p.m. onwards.
What happened thereafter reveals a very disturbing feature which unfortunately has become too common these days and shows the strain through which our democratic system is passing.
At about 2.30 p.m. some of the Councillors belonging to the Shiv Sena Party sat on the ballot boxes and others belonging to that Party and its supporters surrounded the Municipal Commissioner demanding that the meeting be adjourned to a subsequent date.
Thereupon, the Councillors belonging to the Party in power i.e. Congress I, started shouting at him that the meeting be held later on that day, being apprehensive that if the meeting were to be adjourned, they might lose the contest.
There followed shouting of slogans, hurling of abuses and thumping of the tables.
The Councillors belonging to the rival groups then started throwing chairs at each other leading to a pandemonium.
That the fact that not only Councillors but also many outsiders were present in the hall where the meeting was being held who really had no business to be there, is clearly brought out in the affidavits sworn by the Municipal 730 Commissioner, Collector and the Superintendent of Police.
They also show a large number of persons freely entering and leaving the hall.
It is apparent from the affidavit of the Superintendent of Police that during the time when all this happened, Viswasrao Deshmukh, Revenue Minister, Government of Maharashtra came into his office and left the premises while he was actually busy in supervising the bandobust.
We have been shown photographs showing the presence of a large number of policemen wielding lathis inside the hall.
The Collector 's affidavit reveals that the Superintendent of Police personally requested Chagan Bhujbal, a sitting Member of the State Legislative Assembly belonging to the Shiv Sena Party, to keep himself away from the premises of the meeting hall.
Be that as it may, it appears that both the officers asked the outsiders to clear out of the hall, requested the Councillors to take their places so as to permit the Municipal Commissioner to transact the business for the day and brought the situation under control.
They have sworn to the fact that after the Councillors had calmed down and order was restored, both of them left the hall.
Thereafter, the Municipal Commissioner apparently announced on the mike that the meeting would continue and the elections would be held at 4.30 p.m.
The petitioner Chandrakant Khaire being the leader of the Shiv Sena Party, filed a written protest at 4.15 p.m. that the meeting had been adjourned by the Municipal Commissioner for the day and therefore the holding of the meeting later on that day would be improper and illegal.
After this, the Councillors belonging to the opposition group abstained from participating in the meeting held at 4.30 p.m. at which respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan were declared elected as Mayor and Deputy Mayor respectively and respondents nos.
3 8 as Members of the Standing Committee, each of them having polled 32 votes.
We had benefit of hearing Shri S.N. Kacker, learned counsel for the petitioner, Dr. Y.S. Chitale, learned counsel appearing for respondents nos.
1 8 and Shri Vinod Bobde, learned counsel appearing for respondent No. 9, the Municipal Commissioner.
After a protracted hearing we at the end of the day reserved orders.
Having given the matter our anxious consideration, we find it difficult to interfere with the judgment of the High Court.
In view of the conflicting affidavits, the petitioner and his supporters asserting that the Municipal Commissioner had adjourned the meeting for the day and respondent No. 2 reiterating the version of the Municipal Commissioner that he had only suspended the proceedings so that the meeting could be held later in the day and the business for 731 the day, namely, election of the Mayor, Deputy Mayor and Members of the Standing Committee, could be transacted, the High Court relying on the 'preponderance of probabilities ' has come to the conclusion that in the facts and circumstances the affidavit of the Municipal Commissioner, respondent No. 9, appeared to be 'more impressive, probable and convincing ' and therefore they were inclined to accept it as 'one inspiring confidence '.
Acting upon the affidavit sworn by respondent No. 9, the Municipal Commissioner, the High Court has found as a fact that the meeting was not adjourned for the day or sine die but it was to be held as soon as peace was restored on the very day i.e. the meeting had only been postponed.
That is an inference drawn from affidavits and we find no just and compelling reasons to upset the same.
Shri S.N. Kacker, learned counsel for the petitioner contends that the High Court erred in proceeding on probabilities in deciding the present matter which has far reaching ramifications affecting the democratic principles.
It is said that the High Court having found that because of unruly and provocative atmosphere prevailing in the meeting hall, the Municipal Commissioner was required to adjourn the meeting in order to restore peace and to re arrange the furniture which was helter skelter as the Councillors, it is stated, threw chairs at each other, erred in taking the view that the meeting was not adjourned for the day or sine die but had merely been suspended when in fact, the business for the day, namely, elections to the offices of Mayor, Deputy Mayor and Members of the Standing Committee, could not obviously be transacted.
He further contended that when the Municipal Commissioner on his own showing had to adjourn the proceedings in view of the prevailing atmosphere and since he felt it was impossible to continue the election process in that situation, it was wrongly held by the High Court that the meeting was not adjourned sine die when the Municipal Commissioner unequivocally admits that such adjournment was necessary to enable him to decide and announce the time for the resumption of the further proceedings.
In substance, the contention is 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 learned counsel referred to several law dictionaries to bring out the meaning of the expression 'adjourned sine die ' and relied upon the decision of the Calcutta High Court in Smt.
Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and that of the Madhya Pradesh High Court in Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR (1964) MP 195, and also to a passage from Shackleton on the Law & Practice of Meetings, 7th edn.
at p. 44 for the 732 submission that in the case of adjournment sine die, the meeting stands adjourned to an unspecified date and as such a fresh notice calling for the meeting is necessary.
Dr. Y.S. Chitale appearing for respondents nos.
1 8 and Shri Vinod Bobde for respondent No. 9, on the other hand, contended that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given.
It was contended further that there was no warrant for interference under article 136 of the Constitution since a finding of fact has been reached by the High Court on a consideration of the Material on record.
It was also contended that the petitioner having failed to make good the averment in the writ petition that the meeting had been 'adjourned for the day ', the High Court was justified in declining to interfere.
In order to appreciate the point in controversy, it is necessary to set out the relevant statutory provisions bearing on the question.
It is needless to stress that a Municipal Corporation cannot function without the Mayor, Deputy Mayor and Members of the Standing Committee who are entrusted with certain functions and duties under the Act.
Sub section
(1) of section 19 of the Act provides that 'the Corporation shall at its first meeting after the general elections . . . elect from amongst the Councillors one of its members to be the Mayor and another to be the Deputy Mayor ', their term of office being one year.
Sub section
(2) of section 20 enacts that 'the Corporation shall at its first meeting after the general elections appoint 12 persons out of its own body to be Members of the Standing Committee '.
The term of office of the elected Councillors, as provided by section 6(1), is a period of five years which in terms of sub section (2) is deemed to commence on the date of the first meeting called by the Municipal Commissioner.
The relevant Rules framed under section 453 of the Act relating to the proceedings of the Corporation are as follows: "1(b).
The first meeting of the Corporation after general elections shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner." "1(h).
At least seven clear days ' notice shall ordinarily be given of every meeting, other than any adjourned meeting. 733 1(m).
Any meeting may, with the consent of a majority of the councillors present be adjourned from time to time to a later hour on the same day or to any other, but no business shall be transacted and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or proposition remaining undisposed of at the meeting from which the adjournment took place." "2(3).
The Presiding Officer may in case of grave disorder suspend the meeting for a period not exceeding three days.
" It is therefore quite obvious that the first meeting of the Corporation is of prime importance.
Learned counsel for the parties have agreed that cl.(m) may not govern the first meeting of the Corporation but relates to subsequent meetings.
The question before us is whether the first meeting 'could not be held on that day ' within the meaning of cl.(b) of r. 1 and therefore had to be held 'on some subsequent date to be fixed by the Municipal Commissioner '.
The affidavits on record clearly show that the Municipal Commissioner who presided over the meeting, was constrained to adjourn the meeting at 2.45 p.m. when some of the Councillors belonging to the Shiv Sena Party, of which the petitioner is the leader, went inside the booth and forcibly removed the ballot boxes and sat upon them to prevent casting of any votes, giving rise to commotion and pandemonium.
What actually happened is best stated by the Municipal Commissioner in his affidavit: "As a result there was tremendous confusion, chaos and uproar in the house and there was tremendous noise and nothing could be heard clearly.
I say that there was tremendous tension and the situation was going out of control and it was not possible to conduct the election at the moment of time and therefore I announced that the meeting is adjourned and that the Councillors should restore peace.
I also said that I shall soon announce the time of meeting.
I say that I did not leave the house and remained in the chair of the Presiding Authority hoping that the peace would be restored and I would be able to announce the time of the meeting.
Thereafter Shri Man Mohan Singh 734 Oberoi raised the point of order that the meeting should not be adjourned and that he along with another Councillor Dr. Sancheti insisted that meeting should continue.
At this stage the situation in the house worsened and in fact there was hot exchange of words and shouting between different groups of Councillors.
An attempt was made to throw chairs at each other and in fact the furniture in the house was scattered and several Councillors surrounded me and some spoke in favour of adjournment and some spoke in favour of continuation.
My efforts to restore peace and order were futile, and there was serious law and order situation.
In the circumstances aforesaid there was no alternative and I felt that it was my duty to seek the Police help and I called the Police to restore order.
Thereupon some of the Councillors objected and actually resisted the entry of the Police.
Thereafter on my directives the Police soon left.
Some of the Shiv Sena Councillors were in aggressive mood and they came to my table and violently thumped the table and shouted that they would not allow this meeting to take place.
During this period I even suggested that the Councillors should go out.
This was necessary as I felt that without that the furniture cannot be re arranged and further steps for resuming the meeting will not be possible.
In the meantime the District Magistrate Shri R.R. Sinha and Supdt.
of Police Shri T.C. Wankhede entered the Hall.
S.P. Shri Wankhede appealed the Councillors on the mike to restore peace.
I say that discussions took place between myself and the Dist.
Magistrate with a view to restore the peace.
The Dist.
Magistrate Shri Sinha also appealed to restore peace.
Thereafter the Councillors were calmed down and the order was restored.
On the peace being restored both the District Magistrate and the S.P. left the house at 3.45 p.m.
I announced on the mike that meeting would continue and election would be held at 4.30 p.m." ******* ******* ". in effect the adjournment declared by me as aforesaid amounts to suspension of the meeting because of the grave disorder . " ******* ******* 735 "I also said that I shall soon make an announcement about the time for resuming the meeting.
" ******* ******* "I had to adjourn the proceedings in view of the prevailing circumstances set out hereinabove and since I felt that it was impossible to continue the election process in that situation.
It was also necessary to enable myself to decide and announce the time for the resumption of the further proceedings of the meeting.
" While setting out the facts we have already adverted to the facts sworn by the Collector and the Superintendent of Police.
There is no reason not to act on these affidavits.
The Collector says that 'there was total confusion and bedlam inside the hall ' apart from the fact that 'the entire atmosphere was surcharged with commotion ', and 'the Municipal Commissioner was in a very agitated state of mind and said that he could not hold the meeting in the unruly and disorderly situation prevailing '.
There can be no doubt that such unruly scenes witnessed on that day gave rise to a serious law and order situation but both the Collector and the Superintendent of Police were able to restore order in the House and prevailed upon the outsiders to vacate the meeting hall in order that the proceedings could be resumed.
The fact that the Municipal Commissioner did not leave the House or vacate the seat does lend support to the version that he had merely suspended the proceedings till order was restored.
There is no reason to doubt the affidavit sworn by the Municipal Commissioner that he announced on the mike at 3.45 p.m. that the proceedings would be resumed at 4.30 p.m. for transacting the business for the day.
It is quite obvious that the meeting was not 'adjourned for the day ' or 'adjourned sine die '.
Shri Kacker, learned counsel for the petitioner contended that when the affidavits of the three officers showed that utter confusion prevailed and there was pandemonium all around with strangers moving about in the meeting hall, it must necessarily follow that no business could be transacted on that day.
The contention is 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 '.
He referred to the decisions in Menaka Bala Dasi and Sheokumar Shashtri, as also to various law dictionaries, besides a passage from Shackleton on the Law and Practice of Meetings, 7th edn.
at p. 44.
On the strength of these authorities, it was submitted that 736 the meeting was adjourned not to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '.
He accordingly submitted that the Municipal Commissioner should have fixed another date for the meeting and issued fresh notice therefor.
We are afraid, we cannot accept this line of reasoning.
According to the ordinary meaning, the expression 'sine die ' as given in Shorter Oxford Dictionary, 3rd edn., vol.
II at p. 2000 means: "Without any day being specified (for reassembling, resumption of business etc.); indefinitely." Similarly, in Webster 's Comprehensive Dictionary, International edn., the meaning given is more or less the same: "Without a day; indefinitely: an adjournment sine die (that is, without setting a day for ressembling).
" The same is the legal meaning.
In Black 's Law Dictionary, Deluxe 4th edn.
at p. 1556, the meaning of the expression sine die is: "Without day; without assigning a day for a further meeting or hearing." The legal meaning given in Jowitt 's Dictionary of English Law, 2nd edn., vol.
II at p. 1663 reads: "Without a day being fixed.
The consideration of a matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption.
" The passage in Shackleton at p. 44 on which the learned counsel relies reads: "Adjourned meetings: Notice.
An adjournment, if bona fide, is only a continuation of the meeting and the notice that was given for the first meeting holds good for and includes all the other meetings following up it.
If however the meeting is adjourned sine die, a fresh notice must be given.
No new business can be introduced unless notice of such new business is given.
" 737 There can be no dispute with the proposition but the difficulty is about the applicability of that principle to the facts of the case.
Literally, there is nothing on record to substantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 p.m. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. 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 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's Shiv Sena 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 6(2) of the Act for commencement of the term of the Councillors.
The Municipal Commissioner has unequivocally asserted that he only suspended the proceedings in order that they could be resumed for transaction of the business for the day, and the business for the day had to be transacted on May 6, 1988, the date of the first meeting, as fixed by him.
Admittedly, the Municipal Commissioner did not leave the meeting hall nor vacate his seat.
He showed exemplary courage in not yielding to the threats of violence wielded by the party in opposition, because he knew that in law the first meeting had to be held on that day and could not be adjourned to another day.
There is no reason to disbelieve the Municipal Commissioner that when he adjourned the meeting he simultaneously made an announcement that he would later announce the time when the meeting was to be resumed.
He is candid enough to say that he had to adjourn the proceedings in view of the prevailing situation when he felt that it was impossible to continue the election process hoping that peace would soon be restored and he would be able to announce the time of the 738 meeting.
One of the reasons given for the adjournment was that he adjourned the meeting to enable him to decide and announce the time for the resumption of the further proceedings of the meeting.
Rankin, CJ in Menaka Bala Dasi 's case in repelling the contention that adjournment sine die of an application for making a decree in a mortgage suit final, was a discontinuance of it, observed: "(W)hatever may be the old authorities on that point, I have no doubt myself that with us to day 'adjournment sine die ' differs altogether from discontinuance.
It is after all an adjournment an adjournment to a date that is not at the moment fixed.
" The decision of the Madhya Pradesh High Court in Sheokumar Shasthri 's case relied upon by learned counsel for the petitioner is clearly distinguishable.
In that case, it was admitted that the meeting of the Municipal Committee summoned for January 17, 1962 at which the motion of no confidence was to have been moved was adjourned sine die for want of quorum and the High Court held relying upon the proviso to section 32 of the Madhya Pradesh Municipalities Act, 1961, that a meeting convened for consideration of a no confidence motion could not be adjourned sine die, but had to be adjourned to 'some other day ' for which a fresh notice was necessary, P.V. Dixit, CJ speaking for himself and K.L. Pandey, J. observed: "It is settled law that where there is a power of adjournment and a meeting is adjourned, then the adjourned meeting is a continuation of the original meeting and no new notice of an adjourned meeting need be given unless the relevant statutory provisions or rules so require.
But in the case of an adjournment sine die a fresh notice is necessary, (See: Scadding vs Lorant, ; ; and Wills vs Murray, ; The proviso to section 32 of the C.P. and Berar Municipalities Act, 1922, laid down that: "If at any ordinary or special meeting of the committee a quorum is not present, the Chairman shall adjourn the meeting to such other day as he may think fit . . " Under this proviso, a meeting could be adjouned to some fixed date and not sine die.
" 739 The decision in Sheokumar Shashtri is therefore of no avail.
Shackleton on the Law & Practice of Meetings, 7th edn.
apart from the passage at p. 44 already quoted, gives the different shades of meaning of adjournment as understood in legal parlance, in the following words: "Adjournment is the act is postponing a meeting of any private or public body or any business until another time, or indefinitely, in which case it is an adjournment sine die.
The word applies also to the period during which the meeting or business stands adjourned.
An Adjournment may be: 1.
For an interval expiring on the day of the adjournment.
For an interval expiring on some later date.
For an indefinite time (i.e. sine die).
Until a fixed time and date.
To another place.
" The learned author then sets out the different causes giving rise to an adjournment which may be by (1) Resolution of the meeting.
(2) Action of the chairman, and (3) Failure to achieve or maintain a quorum.
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.
The law relating to adjournment has been put succinctly in Horsley 's Meetings Procedure, Law and Practice, 2nd edn., edt.
by W. John Taggart at p. 84, para 1002: 740 "The word 'adjournment ' tends to be used loosely in connection with meetings.
Indeed, as a result, the word is possibly in process of acquiring a further, derived meaning of 'close, conclude or finish ', whereas a meeting or a debate is adjourned when its further proceedings are postponed to some subsequent time or to enable it to reassemble at some other place; to a later hour in the same day, to some future date, or indefinitely, i.e. sine die (without a day being named).
The business (of the whole meeting or the debate respectively) is indeed suspended, but with an intention of deferring it until resumption at a later time.
" The learned author goes on to say that the word 'adjourn ' has been in use for almost five centuries in connection with meetings, with an early meaning of 'to put off or defer proceedings to another day ', and adds: "This in due course gave rise to the added meaning 'to break off for later resumption '.
" On an overall view of the facts and circumstances, we have no hesitation in upholding the finding 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 i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
In the result, the special leave petition must fail and is dismissed.
No costs.
G.N. Petition dismissed.

dataset_name: IN-Abs

summary/full:
After the election of Members, the first meeting of the Aurangabad Municipal Corporation was held on May 6, 1983 at 2 P.M. and the Municipal Commissioner announced that the polling for the offices of Mayor, Deputy Mayor and Members of the standing Committee would commence from 2.30 p.m. onwards.
But at 2.30 P.M. 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 4.30 p.m.
The petitioner filed a protest at 4.15 p.m. 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 4.30 p.m., 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 2.45 p.m. and the adjourned meeting held at 4.30 p.m. 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] 2.1 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 i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
[740D E] 727 2.2 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 P.M. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. 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 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. 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 6(2) 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.


judgement:
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.
N.N. 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 19(1)(f) and 19(1)(g).
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. 26,000 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 19(1)(f) or 31(1) 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. 26,000.
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 6(2) 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 218(A) 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. 26,000 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) [1953]S.C.R.476,483.
(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 case(2), 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 19(1)(f) or article 31(1) (1) [1955]2 S.C.R. 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 2(6) 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 1/2 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. 26,000, 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/full:
By an unregistered document the husband of the petitioner granted her the right to take and appropriate all kinds of wood from certain forests in his Zamindary.
With the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, all proprietary rights in land vested in the State under section 3 Of that Act and the petitioner could no longer cut any wood.
She applied to the Deputy Commissioner and obtained from him an order under section 6(2) of the Act permitting her to work the forest and started cutting the trees.
The Divisional Forest Officer took action against her and passed an order directing that her name might be cancelled and the cut materials forfeited.
She moved the State Government against this order but to no effect.
Thereafter she applied to this Court under article 32 of the Constitution and contended that the order of Forest Officer infringed her fundamental rights under articles 19(i)(f) and 19(1)(g) : Held (per curiam), that the order in question did not infringe the fundamental rights of the petitioner under articles 19(1)(f) and 19(i)(g) and the petition must be dismissed.
34 266 Ananda Behera vs The State of Orissa, [1955] 2 S.C.R. gig, followed.
Chhotabai jethabai Patel and Co. vs The State of Madhya Pradesh, ; , not followed.
Held (per Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar, jj.), that it was not necessary to examine the docu ment minutely and finally determine its real character for the purpose of deciding the matter in controversy, for whatever construction might be put on it, the petition must fail.
If the document purported to transfer any proprietary interest in land, it would be ineffective both for non registration under the Registration Act and under section 3 of the Madhya Pradesh Abolition of Proprietary Rights Act which vested such interest in the State.
If it was a profits a prendre that was sought to be transferred by it, then again the document would be compulsorily registrable as a profits a prendre was by its nature immoveable property.
If it was a contract that gave rise to a purely personal right, assum ing that a contract was property within the meaning of article 19(i)(f) and 31(1) Of the Constitution, the petitioner could not complain as the State had not acquired or taken possession of the contract which remained her property and she was free to dispose of it in any way she liked.
The State not being a party to that contract would not be bound by it, and even if for some reason or other it could be, the remedy of the petitioner lay by way of a suit for enforcement of the contract and compensation for any possible breach of it and no question of infringement of any fundamental right could arise.
Per Bose, J. The document conferred a right on the peti tioner to enter on the lands in order to cut down and carry away, not merely the standing timber, but also other trees that were not in a fit state to be felled at once.
The grant was, therefore, not merely in respect of moveable property but immoveable property as well.
Being valued at Rs. 26,ooo, the document was compulsorily registrable under the Registration Act otherwise no title or interest could pass ; and in absence of such registration the petitioner had no fundamental rights that could be enforced, as held by this court in Ananda Behera 's case.
Although standing timber is not immoveable property under the Transfer of Property Actor the Registration Act, trees attacked to the earth which are immoveable property under section 3(26) of the General Clauses Act, as also section 2(6) of the Registration Act, must be so under the Transfer of Property Act as well.