Mahadeo Vs. The State of Bombay [1959]
INSC 20 (9 March 1959)
HIDAYATULLAH, M.
DAS, SUDHI RANJAN (CJ) DAS, S.K.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1959 AIR 735 1959 SCR Supl. (2) 339
CITATOR INFO :
F 1962 SC1916 (4,7) R 1966 SC1637 (8) R 1968
SC1218 (2) R 1970 SC 706 (7) D 1976 SC1813 (13) E&R 1985 SC1293 (53,112, TO
117,122)
ACT:
Fundamental Rights, Violation of-Agreement
with Proprietors for grant of right lo pick and carry away tendu leaves and
other ancillary rights-Nature of such rights-NonRegistration of
agreement-Effect-Abolition of Proprietary rights in Estates,
etc.-Non-recognition of the agreements by State, if violates fundamental rights
-Central Provinces Land Revenue Act, 1917 (Central Provinces 11 of 1917), SS. 2(13),
47(3), 202-Madhya Pradesh Abolition of Pro-Prietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 (Madhya Pradesh 1 of 1951), ss. 2(6), 3, 4.
HEADNOTE:
Some of the proprietors of the former State
of Madhya Pradesh granted to the several petitioners rights to take forest
produce, mainly tendu leaves, from the forests included in the Zamindaris
belonging to the proprietors.
The agreements conveyed to the petitioners in
addition to the tendu leaves other forest produce like timber, bamboos, etc.,
the soil for making bricks, and the right to build on and occupy land for the
purpose of their business. These rights were spread over many years, but in the
case of a few the period during which the agreements were to operate expired in
1955. Some of the agreements were registered and the others unregistered. After
the coming into force of the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950, the Government disclaimed the
agreements and auctioned the rights afresh, acting under s. 3 of the Act under
which " all proprietary rights in an estate ......... in the area
specified in the notification, vesting in a proprietor of such estate......
or in a person having interest in such
proprietary right through the proprietor, shall pass from such proprietor-or
such other person to and vest in the State for the purposes of the State free
of all encumbrances".
The petitioners filed petitions under Art. 32
of the Constitution of India challenging the legality of the action taken. by
the Government on the ground that it was an invasion of their fundamental
rights. They contended (1) that the Government stepped into the shoes of the
quondam proprietors and was bound by the agreements into which the latter had
entered, before their proprietary rights were taken over by the Government, (2)
that the petitioners were not proprietors as defined in the Act and therefore
ss. 3 and 4 of the Act did not apply to them, (3) that the agreements were in
essence and effect licenses granted to them to cut, gather and carry away the
produce in the shape of 340 tendu leaves, or lac, or timber or wood, (4) that
the agreements granted no 'interest in land ' or 'benefit to arise out of land'
and that object of the agreements could only be described as sale of goods as
defined in the Indian Sale of Goods Act, and (5) that the interest of the
petitioners was not proprietary right but only a right to get goods in the
shape of leaves, etc The petitioners relied on the decision in Firm Chhotabhai
jethabai Patel and Co. v. The State of Madhya Pradesh, [1953] S.C.R. 476.
Held : (1) that the agreements required
registration and in the absence of it the rights could not be entertained.
Srimathi Shantabai v. State of Bombay, [1959]
S.C.R. 265, followed.
(2)that in cases where the period stipulated
in the agreement had expired, the only remedy, if any, was to sue for breach of
contract and no writ to enforce expired agreements could issue. , (3) that on
their true construction the agreements in question were not contracts of sale
of goods.
(4) that both under the Act in question and
the Central Provinces Land Revenue Act, 1917, the forests and trees in the
Zamindari area belonged to the proprietors and they were items of proprietary
rights. Consequently, the rights conveyed to the petitioners under the
agreements were proprietary rights, which under ss. 3 and 4 of the Act, became
vested in the State.
(5)that assuming that the agreements -did not
amount to grant of any proprietary right by the proprietors to the petitioners,
the latter could have only the benefit of their respective contracts or
licenses. In either case, the State had not, by the Act, acquired or taken
possession of such contracts or licenses and, consequently, there had been no
infringement of the petitioners' fundamental rights which alone could support a
petition under Art. 32 of the Constitution.
Chhotabai jethabai Patel and Co. v. The State
of Madhya Pradesh, [1953] S.C.R. 476, not followed.
Ananda Behera v. The State of Orissa, [1955]
2 S.C.R. gig, followed.
ORIGINAL JURISDICTION: Petitions Nos. 26 and
27 of 1954, 24 and 437 of 1955, 256 of 1956, 12, 16, 17 and 73 of 1957.
Petition under Article 32 of the Constitution
of India for the enforcement of Fundamental Rights.
M.S. K. Sastri, for the petitioners in
Petitions Nos. 26 and 27 of 54 and 24 of 1955.
V.N. Swami and M. S. K. Sastri, for the
petitioners in Petitions Nos. 437 of 55 and 256 of 56.
341 L.K. Jha, J. M. Thakur, S. N. Andley and
J. B.
Dadachanji, for the petitioner in Petition
No. 12 of 1957.
N.S. Bindra and Harbans Singh, for the
petitioners in Petitions Nos. 16 and 17 of 1957.
N.S. Bindra and Govind Saran Singh, for the
petitioner in Petition No. 73 of 1957.
H. N. Sanyal, Additional Solicitor-General of
India, H.J.
Umrigar and R. H. Dhebar, for the respondent
in Petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956 and 12 of
1957.
M.Adhikary, Advocate-General for the State Of
Madhya Pradesh and I. N. Shroff, for the respondent in Petitions Nos. 16, 17
and 73 of 1957.
1959. March 9. The Judgment of the Court was
delivered by HIDAYATULLAH, J.-The judgment in Petition No. 12 of 1957 shall
also dispose of petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of
1956 and 16, 17 and 73 of 1957.
These petitions under Art. 32 arise out of
alleged agreements by which some of the proprietors in the former State of
Madhya Pradesh granted to one or other of the petitioners the right to take
forest produce, mainly tendu leaves, from the forests included in Zamindari and
Malguzari villages of the grantors. Government has disclaimed these agreements
and auctioned the rights afresh. The petitioners state that this is an invasion
of their fundamental rights.
The dates on which these alleged agreements
were entered into, the terms thereof and the periods during which they were to
subsist are different from case to case. It is not necessary in this judgment
to recite the terms of these documents, and it is sufficient to group them for
purpose of decision on the bases whether the said agreements still subsist, and
whether they are incorporated in a registered instrument or not.
Petitions Nos. 437 of 1955 and 256 of 1956
are founded on unregistered documents. The answering respondent does not admit
these documents, and contends that they cannot be looked into to prove their
342 terms, in view of the decision of this Court in Shri-mathi Shantabai v.
State of Bombay (1).
Petitions Nos. 16, 17 and 73 of 1957 form
another group, inasmuch as the period during which the alleged agreements were
to operate expired in 1955. Additionally, the documents on which the 'claim is
founded in those petitions are unregistered. In the last mentioned case, it is
pleaded that the answering State Government had recognised the agreements in
favour of the petitioner but resiled from that position subsequently, which
allegation has been adequately explained by the State Government in its
affidavit. The recognition was not in favour of the petitioner but in favour of
one Thakur Kamta Singh, who claimed under an agreement entered into by one
Vishwanath Singh on a date when he had already transferred his interest in the
Zamindari to his son Onkar Prasad Singh. This point was therefore not taken
before us at the hearing, and nothing more Deed be said about it. The main
objection against these petitions is that the agreements having expired, there
is nothing left to enforce either in favour of the petitioners or against the
State Government, and the remedy, if any, of the petitioners is to sue the
State and/or the proprietors for the breach.
The last group consists of Petitions Nos. 26
and 27 of 1954, 24 of 1955 and the present petition (No. 12 of 1957). In these
petitions, the agreements with the petitioners are made by registered documents
and the terms during which they are to operate have yet to expire. These cases,
it is stated, fall outside the rule in Shantabai's case (1), to which reference
has already been made. They are stated to fall within the decision of this
Court reported in Firm Chhotabhai Jethabai Patel and Co. v. The State of Madhya
Pradesh (2). In all these petitions, counsel argue that the view expressed in
the last mentioned case is correct, while the view in Shantabai's case (1)
needs further consideration.
The argument of the petitioners in these
several cases is that Government steps into the shoes of the (1) [1959] S.C.R.
265..
(2) [1953] S.C.R. 476.
343 quondam proprietors, and is bound by the
agreements into which the latter had entered, before their proprietary rights
were taken over by Government. They also raise the contention that the
petitioners were not proprietors as defined in the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter
called the Act), and thus ss. 3 and 4 in terms do not apply to them. These
sections, it is contended, do not apply to profit a prendre, which the
petitioners enjoy under these agreements. In support of this contention,
reference is made to the decision of this Court in Chhotabhai's case (1), and
to the definition of ' proprietor' in the Act. Reference is also made to some
provisions of the C. P. Land Revenue Act to be mentioned hereafter, to prove
that the persons on whom the right to collect forest produce was conferred by
the proprietors cannot be regarded as proprietors even under that Act. This, in
main, is the argument in these cases, and even those petitioners whose
agreements are incorporated in unregistered documents or whose agreements have
since expired, adopted the same line of argument denying the necessity for
registration of such agreements.
The matter in so far as it relates to the
first two groups is simple. It has already been ruled in Shantabai's case (2)
that if the right be claimed on foot of an unregistered agreement, it cannot be
entertained. Such documents were examined from five different angles in that
case, and it was held that the document-if it conferred a part or share in the
proprietary right, or even a right to profit a prendre needed registration to
convey the right. If it created a bare licence, the licence came to an end with
the interest of the licensors in the forests. If proprietary right was
otherwise acquired, it vested in the State, and lastly, if the agreements
created a purely personal right by contract, there was no deprivation of
property, because the contract did not run with the land. Bose, J., who
delivered a separate judgment, also held that in the absence of registration no
right was created.
(1) [1953] S.C.R. 476.
(2) [1959] S.C.R. 265.
344 In view of the clear pronouncement of
this Court, the first two groups of petitions must fail. Petitions Nos. 16, 17
and 73 of 1957 also fail for the added reason that the agreements having
expired, the only remedy, if any, is to sue for breach of contract and no writ
to enforce expired agreements can issue.
This brings us to the arguments advanced in
the last four petitions in the third group which were also adopted by the other
petitioners, whose petitions we have just considered.
All these petitioners strongly relied upon
Chhotabhai's case (1). It is therefore necessary to examine attentively what
was decided there. In that case, it was held at p. 483 that:
" The contracts and agreements appear to
be in essence and effect licenses granted to the transferees to cut, gather,
and carry away the produce, in the shape of tendu leaves, or lac, or timber, or
wood." Reference in this behalf was made to a decision of the Privy
Council in Mohanlal Hargovind of Jubbalpore v. Commissioner of Income-tax,
Central Provinces and Berar (2), where it was observed:
" The contracts grant no interest in
land and no interest in the trees or plants themselves. They are simply and
solely contracts giving to the grantees the right to pick and carry away leaves,
which, of course, implies the right to appropriate them as their own property.
The small right of cultivation given in the
first of the two contracts is merely ancillary and is of Do more significance
than would be, e.g., a right to spray a fruit tree given to the person who has
bought the crop of apples. The contracts are short-term contracts. The picking
of the leaves under them has to start at once, or practically at once, and to
proceed continuously." The Bench next observed that there was nothing in
the Act to affect the validity of the several contracts and agreements, and
that the petitioners were, neither proprietors within the meaning of the Act,
nor persons having " any interest in the proprietary right through the
proprietors ". After quoting from Baden Powell's (1) [1953] S.C.R. 476.
(2) I.L.R. 1949 Nag. 892, 898, 345 Land
Systems of British India, Vol. 1,p. 217, as to what was meant by '
proprietorship' in the Land Revenue Systems in India, it was observed that the
definition of ' proprietor' in the Act conveyed the same sense. Finally,
repelling the argument that the agreements concerned " future goods
", it was held on the basis of a passage in Benjamin on Sale, 8th Edition,
page 136, that a present sale of the right to goods having a " potential
existence " could be made. Since possession was taken under the agreements
and consideration had also passed, there could be " a sale of a present
right to the goods as soon as they come into existence." Reference was
also made (at pp. 480, 481) to s. 6 of the Act, which provides:
" (1) Except as provided in sub-section
(2), the transfer of any right in the property which is liable to vest in the
State under this Act made by the proprietor at any time after the 16th March,
1950, shall, as from the date of vesting, be void." It was observed in the
case as follows:
" The date, 16th March, 1950, is
probably the date when legislation on these lines was actively thought of, and
subsection (1) hits at transfers made after this date. This means that transfers
before that date are not to be regarded as void. Even in the case of transfers
after the said date, sub-section (2) provides that the Deputy Commissioner may
declare that they are not void after the date of vesting, provided they were
made in good faith and in the ordinary course of management.
The scheme of the Act as can be gathered from
the provisions referred to above makes it reasonably clear that whatever was
done before 16th March, 1950, by the proprietors by way of transfer of rights
is not to be disturbed or affected, and that what vests in the State is what
the proprietors had on the vesting date. If the proprietor had any rights after
the date of vesting which he could enforce against the transferee such as a
lessee or a licensee, those rights -would no doubt vest in the State." 44
346 It was accordingly held that the State Government could not interfere with
such agreements but had only the right to enforce rights arising therefrom
" standing in the shoes of the proprietors." It is clear from the
foregoing analysis of the decision in Chhotabhai's case (1) that on a
construction of the documents there under consideration and adopting a
principle enunciated by the Privy Council in Mohanlal Hargovind of Jubbalpore
v. Commissioner of Income-tax, Central Provinces and Berar (2) and relying upon
a passage each in Benjamin on Sale and the well known treatise of Baden-Powell,
the Bench came to the conclusion that the documents there under consideration
did not create any interest in land and did not constitute any grant of any
proprietary interest in the estate but were merely contracts or licenses given
to the petitioners " to cut, gather and carry away the produce in the
shape of tendu leaves, or lac , or timber or wood ". But then, it
necessarily followed that the Act did not purport to affect the petitioners'
rights under the contracts or licenses. But what was the nature of those rights
of the petitioners ? It is plain, that if they were merely contractual rights,
then as pointed out in the two later decisions, in Ananda Behera v. The State
of Orissa (3), Shantabai's case (4), the State has not acquired or taken
possession of those rights but has only declined to be bound by the agreements
to which they were not a party. If, on the other hand, the petitioners were
mere licensees, then also, as pointed out in the second of the two cases cited,
the licenses came to an end on the extinction of the title of the licensors. In
either case there was no question of the breach of any fundamental right of the
petitioners which could support the petitions which were presented under Art.
32 of the Constitution. It is this aspect of
the matter which was not brought to the notice of the Court, and the resulting
omission to advert to it has seriously impaired, if not completely nullified,
the effect and weight of the decision in Chhotabhai's case (1) as a precedent.
(1)[1953] S.C.R. 476.
(3)[1955] 2 S.C.R. 265.
(2) I.L.R. 1949 Nag. 892, 898.
(4) [1959] S.C.R. 265.
347 The argument of counsel in these cases followed
the broad pattern of the decision in Chhotabhai's case (1). and we next proceed
to consider it. It is contended that what vests in the State is the right which
the proprietors had on the date of vesting because s. 3 of the Act is not
retrospective, and that the agreements are " in essence and effect
licenses granted to the transferees to out, gather and carry away the produce
in the shape of tendu leaves, or lac or timber or wood ". These
agreements, it is submitted, grant no 'interest in land' or I benefit to arise
out of land', the object of the agreements can only be described as sale of '
goods' as defined in the Indian Sale of Goods Act, and the grant of such a
right is not comprehended in the firstsub-section of s. 3 where it says :
" .........all proprietary rights in an
estate, mahal in the area specified in the notification, vesting in a
proprietor of such estate, Mahal or in a person having interest in such
proprietary right through the proprietor, shall pass from such proprietor or
such other person to and vest in the State for the purposes of the State free
of all encumbrances ".
It is finally contended that the interest of
these petitioners is not I proprietary right' at all but a right to get I goods
in the shape of leaves, lac, etc. We have to examine these contentions
critically.
Before we do so, it is necessary to set out
in brief the terms of the agreements which have been produced in these cases.
In Petition No. 12 of 1957 there were two agreements, Annexures A and B. The
first was executed in 1944 and granted the right from 1947 to 1956; the second
was executed in 1946 and granted the right from 1957 to 1966.
These are long term agreements and they are
typical from case to case. Indeed, the second agreement was made even before
the first began, and the total period is 20 years.
In addition to the right to the leaves the
documents provided for many other matters. It is convenient to quote only from
Annexure 'B':
" Before this I had given you a similar
contract selling Tendu leaves produce by contract dated (1)[1953] S-C.R. 476.
348 7-7-1944 registered on 12-7-1944. In
pursuance of that registered contract, which is for five years from 1947 to
1951 and another for subsequent five years from 1952 to 1956 in all for ten
years, you are to remain in possession and occupation of the areas and the
Tendu leaves produce till the termination of the year 1956 for which time you
continue your possession and thereafter in pursuance of this contract you
continue for further period of ten years your possession and occupation from
1957 to 1966 as is usual and customary pruning and coppicing Tendu leaves
plants, burning them, and instal Fadis for collection of Tendu leaves and
construct Kothas (godowns) for storage of the leaves at your sweet will and
choice on any open plot or land within the estate with my permission and you
are allowed to take free of all costs any Adjat timber, bamboos, etc., from my
forests for constructing them. I shall charge you no further consideration. In
the same manner, for the purpose of constructing these godowns and such thing
you may according to your convenience (you may) manufacture bricks at any place
you like in the vicinity of any rivers, rivulet, Nala or pond at your costs. I
shall not receive-from you any extra amount as rent for the use and occupation
of land that will be used for construction of Kothas, for manufacturing bricks
and for locating Fadis (Bidi leaves collection centres). All those are included
in the consideration fixed for this contract. All these rights are already
conferred on you in the previous contract dated 7-7-1944 and under this
contract for the entire contract period. It is also open to you to collect
Tendu leaves not only those growing in the summer season but also those growing
in Kartik.
During the term of this contract, if for one
reason or another it becomes necessary for you to sell the Tendu leaves produce
and assign this contract to any other person you can do so. But you shall be
responsible for me to give my consent after inquiring of the fitness of the
intended transferee. However, you shall continue to be responsible to pay to me
the agreed amount of installments on or before the agreed dates; and if the
agreed amount of installment is not paid to me on or 349 before the agreed
date, I shall have full right to start proper proceedings in that connection
".
In Petition No. 26 of 1954, the period of the
two agreements was from 1944 to 1963. There too, the rights were similar to
those in Petition No. 12 of 1957, and analogous terms are to be found in
Petitions Nos. 27 of 1954 and 24 of 1955.
The question that arises is, what is the
nature of this right? In English law, distinction was made between easements
and profit a prendre and a right to take the produce of the soil was regarded
as a profit a prendre.
While easements were not regarded as an
interest in land, a right to take the produce of the soil or a portion of it
was an interest in land: Fitzgerald v. Fairbanks (1). Profit-aprendre can be
the subject of a grant. Where they take the form of a grant, they are benefits
arising from land. In all these cases, there is not a naked right to take the
leaves of Tendu trees together with a right of ingress and of regress from the
land; there are further benefits including the right to occupy the land, to
erect buildings and to take other forest produce not necessarily standing
timber, growing crop or grass. The right of ingress and of regress over land
vesting in the State can only be exercised if the State as the owner of the land
allows it, and even apart from the essential nature of the transaction, the
State can prohibit it as the owner of the land.
Whether the right to the leaves can be
regarded as a right to a growing crop has, however, to be examined with
reference to all the terms of the documents and all the rights conveyed
thereunder. If the right conveyed comprises more than the leaves of the trees,
it may not be correct to refer to it as being in respect of growing crop'
simpliciter.
We are not concerned with the subtle
distinctions made in English law between emblements, fructus naturals and
fructus industrials, but we have to consider whether the transaction concerns
" goods " or "moveable property " or " immovable
property ". The law is made difficult by the definitions which exist in
the General Clauses Act, the Sale of Goods Act, the (1)[1897] 2 Ch. 96.
350 Transfer of Property Act and the
Registration Act. These definitions must be placed alongside one another to get
their ambits.
If the definitions are viewed together, it is
plain that they do not tell us what " immovable property "' is. They
only tell us what is either included or not included therein. One thing is
clear, however, that things rooted in the earth as in the case of trees and
shrubs, are immovable property both within the General Clauses Act and the
Transfer of Property Act, but in the latter, " standing timber ",
" growing crop " and " grass " though rooted in earth are
not included. Of these, " growing crop " and " grass form the
subject matter of the sale of goods, and standing timber " comes within
the last part of the definition of ' goods' in the Indian Sale of Goods Act, to
be subject thereto if the condition about severing mentioned in the definition
of ' goods' exists.
It has already been pointed out that the
agreements conveyed more than the tendu leaves to the petitioners. They
conveyed other forest produce like timber, bamboos, etc., the soil for making
bricks, the right to prune, coppice and burn tendu trees and the right to build
on and occupy land for the purpose of their business. These rights were spread
over many years, and were not so simple as buying leaves, so to speak, in a
shop. The expression " growing crop " might appropriately comprehend
tendu leaves, but would not include, Adjat timber', bamboos, nor even tendu
plants. The petitioners were not to get leaves from the extant trees but also
such trees as might grow in the future. They could even burn the old trees,
presumably, so that others might grow in their place. In these circumstances,
the agreements cannot be said to be contracts of sale of 'goods' simpliciter.
It remains now to consider whether the rights
enjoyed by the petitioners can be said to fall within s. 3(1) of the Act.
That section divests the proprietors of their
proprietary rights, as also any other person having an interest in the
proprietary right through the proprietor and vests those rights in the State.
That section has to be read with the section which 351 follows, and which sets
out the consequences of vesting of such rights in the State. The rights which
vest can be stated briefly to be (a) all proprietary rights in the proprietor,
and (b) all proprietary rights in any person having interest in such
proprietary rights through the proprietor. These rights vest in the State free
of all encumbrances.
Section 4 of the Act provides inter alia that
after the notification has been issued, then, ' notwithstanding anything
contained in any contract, grant or document or in any other law for the time
being in force and save as otherwise provided in this Act'-the following
consequences (among others) shall ensue:
" (a) all rights, title and interest
vesting in the proprietor or any person having interest in such proprietary
right through the proprietor in such area including Land (cultivable or
barren), grassland, scrub jungle, forest, trees, fisheries, wells, tanks,
ponds, water-channels, ferries, pathways, village sites, hats, bazars and
melas;
and in all subsoil, including rights, if any,
in mines and minerals, whether being worked or not, shall cease and be vested
in the State for purposes of the State free of all encumbrances; and the
mortgage debt or charge on any proprietary right shall be a charge on the
amount of compensation payable for such proprietary right to the proprietor
under the provisions of this Act;
(b)all grants and confirmation of title of or
to land in the property so vesting or of or to any right or privilege in
respect of such property or land revenue in respect thereof shall, whether
liable to resumption or not, determine: ".
If these petitioners can be said to be
possessing " an interest in the proprietary right ", then their
rights, title and interest in the land determine under the Act, and vest in the
State. The petitioners, therefore, contend that their rights under the
agreements cannot be described as 'proprietary right' or even a share of it.
They rely on the definition of 'proprietor' in the Act, and refer under the
authority of s. 2(b) of the Act to the Central Provinces Land Revenue Act,
1917.
The definition in the Act is not exhaustive.
It only 352 tells us who, besides the proprietor, is included in the term
'proprietor'. Further, the definitions in the Act are subordinate to the
requirements of the context and the subject-matter of any particular enactment.
From the Act, we know that the proprietor's interest in forest, trees, shrub,
grass and the like passes to the State. The question thus resolves into two
short ones-did the former proprietors own proprietary interest in these trees,
and did they part with that proprietary interest and convey it to the
petitioners ? There is but little doubt that in so far as the Act is concerned,
it does contemplate cesser of all proprietary rights in land, grass land, scrub
jungle, forest and trees, whether owned by the proprietor or through him by
some other person. The contention of the petitioners is that by the term "
proprietor " is meant what that term conveys in the Central Provinces Land
Revenue Act, and reference is made for this purpose to various sections
therein. The term " proprietor " is defined in the Central Provinces
Land Revenue Act thus:
" " Proprietor " except in
sections 68, 93 and 94, includes a gaontia of a Government village in Sambalpur
Territory." This definition does not advance the matter any further. In
several sections, special explanations are added to define " -proprietors
". In all those explanations, the term is not defined, but is said to
include 'the kedars or headmen with protected status', I mortgagee with possession',
I lessees holding under leases from year to year' and the like. In addition,
there is invariably the inclusion of I a transferee of proprietary, rights in
possession', which again leaves the matter at large. See ss. 2(5), 2(21), 53
and 68.
Counsel faced with this difficulty rely upon
the scheme of settlement in Ch. VI of the Central Provinces Land Revenue Act-,
and the record of rights which consists of Khewat, a statement of persons
possessing proprietary rights in the mahal including inferior proprietors or
lessees or mortgagees in possession, specifying the nature and extent of the
interest of each; and Khasra or field book and Jamabandi or list of persons 353
cultivating or occupying land in the village. these documents are prepard
separately. The petitioners contend that by 'proprietary right' is meant that
right which can find, a place or be entered in the Khewat, and the rights
enjoyed by the petitioners are not and cannot be entered in the Khewat because
thay are not 'proprietary rights'. They also refer to the schemes of settlement
under which proprietors subproprietors etc.,are determined and offered
assessment.
In our opinion, these arguments, though
attractive, do not represent the whole of the matter. What these documents
record and what the settlement operations determine are the kinds of '
proprietors' among whom the entire bundle of rights is shared. Every proprietor
or sub-proprietor enjoys proprietary rights over land, forests, etc., falling
within his interest. The right to forest trees, etc., is the consequence of
proprietorship, and indeed, under s. 47(3) the State Government can declare
which rights and interest must be regarded as ' proprietary rights'. That
sub-section provides:
" The State Government may declare the
rights and interests which shall be deemed to be proprietary rights and
interests within the meaning of sub-section (2)." The second sub-section
provides:
" The Deputy Commissioner shall cause to
be recorded, in accordance with rules made under s. 227, all changes that have
taken place in respect of, and all transactions that have affected, any of the
proprietary rights and interests in any land." The matter is made clear if
one refers to the provisions of s. 202 of the Land Revenue Act. That section confers
on Government the power to regulate the control and management of the
forest-growth on the lands of any estate or mahal. A reading of sub-ss. (4) to
(8) of that section clearly shows that forests belong to the proprietors from
whom under those sub-sections they can be taken over for management, the
profits of the management less expenses being paid to the proprietors or to
superior and inferior proprietors as the case may be. Sub-sections (9) and (10)
provide 45 354 (9)" No lease, lien, encumbrance or contract with respect
to the forest land held under direct management shall be binding upon the
Government.
(10)On the expiration of the period fixed for
the direct management, the forest land shall be restored to the proprietor
thereof" Even here, the term ' proprietor' is explained by the usual
explanation showing the same category of persons as included in the section.
From this, it is quite clear that forests and
trees belonged to the proprietors, and they were items of proprietary rights.
The first of the two questions posed by us, therefore, admits of none but an
affirmative answer.
If then the forest and the trees belonged to
the proprietors as items in their ' proprietary rights', it is quite clear that
these items-of proprietary rights have been transferred to the petitioners. The
answer to the second question is also in the affirmative. Being a 1 proprietary
right', it vests in the State under ss. 3 and 4 of the Act. The decision in
Chhotabhai's case (1) treated these rights as bare licenses, and it was
apparently given per incuriam, and cannot therefore be followed.
Even assuming that the documents in question
do not amount to grant of any proprietary right by the proprietors to the
petitioners, the latter can have only the benefit of their respective contracts
or licenses. In either case, the State has not, by the Act, acquired or taken
possession of such contracts or licenses and consequently, there has been no
infringement of the petitioners , fundamental right which alone can support a
petition under Art. 32 of the Constitution.
The result is that these petitions fail, and
are dismissed, but in view of the fact that they were filed because of the
decision in Chhotabhai's case (1), there shall be no order about costs.
Petitions dismissed.
(1) [1953] S.C.R. 476.
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