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2009 Supreme(Cal) 56
IN THE HIGH COURT AT CALCUTTA
Arunabha Basu, J.
Tapan Kumar Mitra & Anr.
Vs.
State of West Bengal & Ors.
C.R.R. No. 1833 of 2005
Decided on : 4th February, 2009
Sitaram Bhattacharjee for the appellant;
R.S. Chattopadhyay for the State.
Felling of trees and changing the nature of the land without obtaining the required permission under the West Bengal Land Reforms Act, 1955 is an offence.
Headnote:
WEST BENGAL LAND REFORMS ACT - SECTION 4B, 4C - [CRIMINAL PROCEDURE CODE, 1973 - SECTION 401, 482] - The Court held that permission is not required for felling trees in non-forest private plantation/orchard/bagan. However, prior permission is required to change the nature and character of the plot under Section 4C of the Act. Felling of trees and changing the nature of the plot without permission is an offence.
Fact of the Case:
The petitioners were accused of felling trees and changing the nature of the land in violation of the West Bengal Land Reforms Act, 1955. They claimed that they had sold the property before the alleged offence and were not the owners at the time of the offence.
Finding of the Court:
The Court found that the petitioners had not provided sufficient evidence to support their claim that they were not the owners of the property at the time of the offence. The Court also found that the petitioners had not obtained the required permission to fell trees or change the nature of the land.
Issues: 1. Whether the petitioners were the owners of the property at the time of the offence. 2. Whether the petitioners had obtained the required permission to fell trees or change the nature of the land.
Ratio Decidendi: 1. The Court held that the petitioners had not provided sufficient evidence to support their claim that they were not the owners of the property at the time of the offence. 2. The Court held that the petitioners had not obtained the required permission to fell trees or change the nature of the land.
Final Decision: The Court dismissed the petitioners' revision petition and held that the FIR against them could not be quashed.
Arunabha Basu, J.
The revisional application under section 401 read with section 482 of the Code of Criminal Procedure is directed to quash the First Information Report lodged by the Opposite Party No.2 against the petitioners, along with others in connection with offence falling under the provisions of West Bengal Land Reforms Act, 1955 (hereinafter called the Act).
2. The aforementioned occurrence was registered at Basirhat Police Station Case No. 68 dated 6.4.2002, now pending before the Court of learned Sub-Divisional Judicial Magistrate (now A.C.J.M.), Basirhat.
3. Petitioners case in short is that the property falling under plot No. 4320, 4339, 4341, 4350 & 4366, under Mouja Tantra, Newra under Basirhat Police Station was inherited by the petitioners along with the other co-sharers.
4. The petitioners sold the property falling under plot No. 4320 to one Madhovi Ghosh by a registered deed dated 28.1.1998. Similarly the property falling under plot No. 4339, 4341 & 4350 was sold to one Somnath Datta by registered deed dated 26.2.2002.
5. It is further stated that property falling under plot No. 4366 is not exclusively owned by the petitioners and they have interest over only four decimal out of 33 decimal of land falling under the said plot.
6. It is further stated that they are not the owners in respect of plot No. 4368. With regard to plot No. 4366, they are still owners along with others in respect of the said plot.
7. Petitioners are mainly aggrieved by registration of the F.I.R. which was lodged by Opposite Party No.2 in respect of plot No. 4368, 4366, 4320, 4339, 4341 & 4350.
8. It appears from the F.I.R. that the case is registered against number of persons including the petitioners herein mainly on the allegation of felling 50 Mango trees and 20 Coconut trees, from the said plots without obtaining prior permission as required in terms of provisions under section 4B of the Act.
9. It is further alleged in the F.I.R. that such act on the part of the accused persons is nothing but an attempt to change the nature and character of the land in violation of the provision under section 4C of the Act.
10. Learned Advocate for the petitioners mainly submitted that petitioners long before the date of occurrence divested themselves from the ownership of the plot in question and as such they cannot be held to be liable in connection with the said offence. It is further contended that felling of trees which does not fall within forest lands cannot be said to be an offence, under the provisions of the Bengal Act as mentioned above.
11. In support of his contention learned Advocate for the petitioners has referred to the decision of Supreme Court in Sri Ram Saha vs. State of West Bengal & Ors. reported in 2005(1) CLJ (SC) 163. In this case Two Judges Bench of Hon'ble Supreme Court after considering the various provisions of the West Bengal Land Reforms Act, 1955 held that no permission is required for felling trees in the non-forest private plantation/orchard/bagan.
12. Learned Advocate for the petitioners has also referred in another decision of Supreme Court in M/s. Pepsi Foods Ltd. vs. Special & Ors. Judicial Magistrate & Ors. reported in AIR 1998 Supreme Court 128, whereby the Hon'ble Supreme Court held while considering the scope of Article 226, Article 227 of the Constitution vis-a-vis section 482 of the Code of Criminal Procedure and held that nomenclature under which petition is filed is not quite relevant and the same does not debar the Court from exercising its appropriate jurisdiction. The Hon'ble Supreme Court further held that summoning of an accused in a criminal case is a serious matter and the order of the learned Magistrate summoning the accused must reflect that he has applied his mind to the fact of the case and the law applicable thereto. However, this decision is not applicable in connection with the present case as no summons has not issued by the learned Magistrate and the petitioners herein have moved this Court
