Divisional Forest Officer, Himachal
Pradesh ANR Vs. Shri Daut & Ors  INSC 247 (30 October 1967)
30/10/1967 SIKRI, S.M.
CITATION: 1968 AIR 612 1968 SCR (2) 112
Himachal Pradesh Abolition of Big Landed Estates
& Land Reforms Act, 1953 s. 11-Expression "right, title and interest
of the land-owner in the land"--If includes trees on the land.
Upon an application filed by a cultivating
tenant M under s. 11 of the Himachal Pradesh Abolition of Big Landed Estates
and Land Reforms Act, 1953, the Compensation Officer held that as such tenant
he was entitled to acquire "the right, title and interest" of the
owner of the land in question.
After payment by the tenant of a specified
amount of compensation, a certificate of ownership was granted to him and,
after his death, the land was mutated in favour of his wife and daughter,
respondents in this appeal.
The respondents applied to the Divisional
Forest Officer for permission to sell the trees of their land and although that
Officer granted permission for the sale, he failed to give the necessary orders
for felling the trees and taking out the converted timber from the land. The
respondents filed a petition under Art. 226 of the Constitution for the issue of
a writ of mandamus directing the Divisional Forest Officer to issue or get
issued the necessary permission for felling the trees and moving the timber.
The Judicial Commissioner, following Vijay Kumari Thakur v.H.P.
Administration. A.I.R. 1961 H.P. 32, held
that the appellants were estopped from contending that the respondents had no
interest in the trees and allowed the petition.
In appeal to the Supreme Court it was
contended on behalf of the appellants that under s. 11 of the Act the trees did
not vest in the deceased tenant but only the 'land' as defend in s. 2(5) of the
Act, and that the Compensation Officer was not competent to grant and, in fact,
did not grant proprietary rights in the trees to the deceased tenant.
HELD : dismissing the appeal:
Under sub-s. (6) of s. 11, the tenant becomes
the owner of the land comprised in the tenancy on and from the date of gram of
the certificate, and it is expressly provided that the right, title and
interest of the landowner in the said land shall determine. In the context the
word 'owner' is very comprehensive and implies that all rights, title and
interest of the land-owner passed to the tenant. [116E-F] Furthermore, the
expression "right, title and interest of the landowner in the land"
is wide enough to include trees standing on the land. Under s. 8 of the
Transfer of Property Act, unless a different intention is expressed or implied,
transfer of land would include trees standing on it; and s. 11 of the Himachal
Pradesh Act should be construed in the same manner. [115 E] Achhru Mal v. Maula
Bakhsh, (1924) 5 Lah. 385 and Nasib Singh v. Amin Chand, A,I.R. 1942 Lah. 152,
Kaju Mal v. Salig Ram,  Punj. Rec. 237,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 128 of 1965.
Appeal from the judgment and decree dated
December 12, 1963 of the Judicial Commissioner's court, Himachal Pradesh, in
Civil Writ Petition No. 19 of 1963.
Vikram Chand Mahajan and R.N. Sachthey, for
Rameshwar Nath and Mahinder Narain, for
The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate granted by the Judicial Commissioner,
Himachal Pradesh, is directed against his judgment allowing a petition filed by
the respondents and issuing a writ of mandamus directing the Divisional Forest
Officer. Sarahan Forest Division, and the Chief Conservator of Forests,
Himachal Pradesh --hereinafter referred to as the appellants--to issue or get
issued the necessary permission for felling the trees and the transit pass. in
respect of certain khasra numbers.
In order to appreciate. the points raised by
the learned counsel for the appellants, it is necessary to set out the relevant
facts. Land measuring 27 bighas and 16 biswas comprised in khasra Nos.
452/1,453, 453/1, 40, 100 and 440 and situated in village Kadiali, Tehsil
Theog, District Mahasu, belonged to Government and was under the tenancy of
Moti Ram. He filed an application under s. 11 of the Himachal Pradesh Abolition
of Big Landed Estates and Land Reforms Act, 1953--hereinafter referred to as
the Act--and was granted proprietary rights in the land by the Compensation
Officer by order dated August 30, 1957.
Provisional compensation was assessed at Rs.
62.56 nP. The Compensation Officer held that "as the applicant is a
cultivating tenant over the aforesaid land he is entitled to acquire right,
title and interest of the said land-owner on payment of Rs. 62.56 as
compensation which should be deposited." On September 9, 1957, a
certificate of ownership was granted to Moti Ram on his depositing Rs.
62.56. Moti Ram died and the land was mutated
in favour of his wife Smt. Besroo and his daughter Smt. Rupi. The respondents
applied for permission to sell the trees on their land, and the Divisional
Forest Officer by order dated July 18, 1958, permitted them to sell the trees
from their land on certain conditions. On November 15, 1958, the respondents
deposited Rs. 1267.13 nP as government fee, but the Divisional Forest Officer
failed to give clear orders for felling the trees and taking out the converted
timber from the said ]and. The Chief Conservator Officer, by letter dated July
12, 1961, informed the respondents that the matter was being inquired from the
Conservator of 114 Forests, Simla Circle. Thereupon, not hearing anything
further, the respondents flied a petition under Art. 226 of the Constitution.
It was urged before the Judicial
Commissioner, on behalf of the Divisional Forest Officer that the respondents
interest in the trees standing on their land
as. the trees were not 'land' as defined in s. 2(5) of the Act, and that the
Compensation Officer was not competent to grant, and, in fact, did not grant
proprietary rights in the trees to the deceased Moti Ram. The learned Judicial
Commissioner, following Vijay Kumari Thakur v. H. P. Administration (1) held
that the appellants were estopped from contending that the respondents had no
interest in the trees. He further held that the respondents were granted
permission to sell the trees standing on their land and they had, in fact,
entered into an agreement to sell to a third party, and they had deposited Rs.
1267.13 nP and had 'thus acted to their detriment. As stated already, the
learned Judicial Commissioner allowed the petition and issued a writ of mandamus.
With certificate granted by the Judicial Commissioner the appellants have.
flied this appeal.
The learned counsel for the appellants
contends that under s. 11 of the Act the trees did not vest in the deceased
Moti Ram. He says that what vested under s. 11 of the Act was land, and 'land'
is defined in s. 2 ( 5 ) as follows:
"S. 2(3).--Land means land which is not
occupied as the site of any building in a town or village and is occupied or
has. been let for agricultural purposes or for purposes subservient to
agriculture, or for pasture, and includes--- (a) the sites of buildings and
other structures on such land;.
(c) ghasnies;" He relies on a number of
decisions of the Punjab Chief Court and the Lahore High Court interpreting a
similar definition existing in the Punjab Alienation of Land Act (XIII of
1900). In our opinion those cases are distinguishable inasmuch as they deal
with the question whether trees could be sold or assigned under the Punjab
Alienation of Land Act without infringing the prohibitions contained in that
Act forbidding sale of land by agriculturists in favour of non-agriculturists.
For instance, in Achhru Mal v. Maula Bakhsh(2), under a deed of sale the vendee
was entitled to cut and remove the trees within a period of ten years, and the
plaintiff brought a suit asking for a perpetual injunction (1) A.I.R. 1961 H.
(2) (1924) 5 Lah. 385.
115 to issue to the defendants-respondents to
restrain them from preventing him from cutting and removing certain trees from
the. land belonging to the defendants-respondents- The lower courts held that
the trees growing on agricultural land were "land" within the'
meaning of the expression as defined in s. 2(3) of the Punjab Alienation of
Land Act, and, therefore, their sale to the plaintiff was unlawful having
regard to the provisions of that Act. The' Lahore High Court held that the sale
did not infringe the provisions of that Act because the sale of trees was not a
sale of land. The High Court was not concerned with the question whether on a
transfer of land trees standing on it passed to the transferee or not.
In Nasib Singh v. Amin Chand(1) it was held
that the suit for possession of certain mango, shisham and jaman trees was not
a suit between a landlord and his tenant under the Punjab Tenancy Act and
consequently the Civil Court was competent to try the suit.
There can. be no doubt that trees are capable
of being transferred apart from land, and if a person transfers trees or gives
a right to a person to cut trees and remove them it cannot be said that he has
transferred land. But we are concerned with a different question and the
question is whether under s. 11 of the Act trees are included within the
expression "right, title and interest of the land-owner in the land of the
tenancy". It seems to us that this expression "right, title and
interest of the land-owner in' the' land" is wide enough to include trees
standing on the land. It is clear that under s. 8 of the Transfer of Property
Act, unless a different intention is expressed or implied, transfer of land
would include trees standing on it. It seems to us that we should construe s.
11 in the same manner.
The learned counsel for the appellants
contends that the trees standing on the land transferred to Moti Ram under s. 11
of the Act are worth about Rs. 76,000, and it could not have been the'
intention to transfer Rs. 76,000 worth of trees for Rs. 62/56. He says. that
the trees are really forest trees and it was never the intention of the
legislature to vest forest trees in the tenants acquiring land under s. 11 of
the Act. But no such contention seems to have been raised in the written
statement filed by the appellants. It might have been different if it had been
proved that the portion of the area transferred to Moti Ram was a natural
forest.[see Kaju Mal v. Salig Ram(2)].
The learned counsel referring to s. 84 of the
Act points out that one of the consequences of vesting of land in the State
Government under s. 83 is that trees expressly vest in the 'State. He says that
if it was the intention to vest trees in the tenant acquiring land (1) A.I.R.
1942 Lah. 152 (2) (1919) Punj. Rec. 237.
116 under s. 11 of the Act, it would have
been similarly so expressed. We are unable to accede to this contention.
Section 84(a)(i) reads as follows:
"84. When a notification under section
83 has been published in the Gazette notwithstanding anything contained in any
contract or document or in any other law for the time being in force and save
as otherwise provided in this Act, the consequences as hereinafter set forth
shall, from the beginning of the date of vesting ensue in respect of the land
to which the notification applies, namely :-- (a) all rights, title and
interest of all the landowners- (i) in every such land including cultivable or
barren land, ghasnis, charands, trees, wells, tanks, ponds, water channels,
ferries, pathways, hats, bazars and melas;..." If the contention of the
learned counsel were. correct, even cultivable land which is expressly
mentioned in s. 84(a) (i) would not vest in the tenant under s. 11 of the Act.
Section 11 is drafted very simply and under
sub-s.(6) the tenant becomes the owner of the land comprised in the tenancy on
and from the date of grant of the certificate, and it is expressly provided
that the right, title and interest of the landowner in the said land shall
In the context the word "owner" is
very comprehensive indeed, and it implies that all rights, title and interest
of the landowner pass to the tenant. Further, it seems to.
us that it would lead to utter confusion if
the contention of the learned counsel is accepted. There would be interminable
disputes as to the rights of the erstwhile landowners to go on the lands of
erstwhile tenants and cut trees or take the fruit. Moreover, under s. 15 of the
Act we would, following the same reasoning, have to hold that the trees on the
land of the landowner did not vest in the State. This could hardly have been
For the aforesaid reasons we must uphold the
judgment of the Judicial Commissioner, although for different reasons.
In the result the appeal fails and is
dismissed with costs.
R.K.P.S. Appeal dismissed.