Mulla Mohamadali Vs. State of Gujarat an
 INSC 273 (25
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Ray, B.C. (J)
1993 AIR 335 1991 SCR Supl. (1) 564 1992 SCC (1) 742 JT 1991 (4) 265 1991 SCALE
Bombay Merged Territories and Areas (Jagirs Aboli- tion)Act,
1953--Section 8--Chhota Udepur State--Land de- clared as reserved forest
Jagirdar's right in trees standing in such area.
appeal by the plaintiffs is against an order of rever- sal dtd.7/10th February,
1975 passed by the Gujarat High Court. Plaintiff No.1 first appellant is the
contractor and Plaintiffs Nos. 2 to 4, the other appellants. are the jagir- dars
of the farmer State of chhota Udepur. The Jagirdars sold some teak trees to
plaintiff No.1, contractor. With effect from 1.8.1954, the Bombay Merged
Territories and Areas (Jagirs Abolition) Act, 1953 was made applicable to
village Nalej,and no compensation was awarded to the Jagir- dars in lieu of the
trees, as they had sold them to appel- lant No.1 (since dead) and now
represented by his legal representatives. The contractor made an application to
the Collector of Baroda under Sourashtra Felling of Trees Act for permission to
cut the trees in question, which was forwarded to Mamlatdar of Chhota Udepur
who granted the same on 25.9.1961 as a consequence whereof the contractor
started cutting the trees. The Prant Officer, Chhota Udepur however, prevented
the contractor from cutting the trees whereupon the contractor represented the
matter before the Divisional Forest Officer and the State Government but was
told that the Jagirdars had no right to the trees standing in the reserved
forest area and in the waste land. The Government sold the trees already cut
for Rs. 15786 and also sold the other trees to some other persons. The Jagirdars
and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer. Chhota
Udepur, District, Baroda for rendition of accounts, for declaratio of the
plaintiffs' title to the trees, for a declaration of the right of the
contractor to cut the trees and to remove the same, and for direction to the
State to issue the necessary authorisation and transit passes for cutting and
removing the trees in question in favour of the contractor.
for the balance of the amount of Rs. 14518.18 after adjusting Rs. 1267.82
already received was also sought. The trial court partly decreed the suit
holding that the jagir- dars were the full owners of the trees and as such the
564 565 contractor had also become the full owner thereof. The State was also
ordered to pay Rs. 14518.18 with proportionate costs and interest at 4 per
centum per annum on this amount from the date of decree till realisation.
State of Gujarat appealed against that order to the
High Court of Gujarat contending (i) that under Forest Rules of Chhota Udepur
State, Chotta Udepur State had exercised rights over three
kinds of forest-reserved, protected and open, the State of Gujarat was thus competent to issue
notification under sec. 4 of the Indian Forest Act, 1947.
under the rules, Mahuda and teak trees were reserved trees and they are
prohibited from being cut; (iii) under the Jagir Abolition Act, Section 5, the
solid vested in the jagirdar and not the trees; hence Jagirdars could not have
sold the trees and (iv) the agreement executed between the contractor and the Jagirdars
was not enforceable at law; the contractor could not claim any right/interest
under the same.
High Court negatived all the contentions and the rights accruable to the
contractor under the agreement and allowed the appeal of the State and
dismissed the suit filed by the appellants.
this appeal by the appellants.
the appeal, this Court
The trees in question stood on the area which was declared as reserved forest
under the forest rules framed by the Chhota Udepur State. [512 B] Once it is established that during the time of
existence of erstwhile State of Chhota Udepur an area admeasuring 290 acres and
14 gunthas in village Nalej was declared as re- serve forest and jagirdars had
no right at all in the trees standing in such area of reserved forest, the Jagirdars
cannot be considered to have acquired a greater right on 28.7.48 when the
Forest Rules of Chhota Udepur State were repealed by the Application of Laws
Order. [514 C-D]
APPELLATE JURISDICTION: Civil Appeal No.1865 of 1975.
the Judgment and Decree dated 7/10.2.1975 of the Gujarat High Court in First
Appeal No. 291 of 1967.
A.S. Qureshi, N.K. Sahoo, P.H. Parekh, and Ms. Chetna Anand for he Appellant.
Dave, Mrs. Nandini Gore for Mrs. M. Karanjawa- la, R. Karanjawala (N.P), Anip Sachthey
and Rajesh for the Respondents.
Judgment of the Court was delivered by KASLIWAL, J This appeal by special leave
is directed against the judgment of the High Court of Gujarat dated 7/10th February, 1975.
plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as the jagirdars).
The jagirdars vide exhibit 58 dated 9.1.1954 sold all the teak trees in favour
of plaintiff no.1 (hereinafter referred to as the contractor) for a sum of Rs.6,001/-
and received a sum of Rs. 101/- as earnest money.
another agreement exhibit 59 dated 29th July, 1954, the jagirdars sold all the Mahuda
trees in favour of the con- tractor for a sum of Rs. 5001/and received sum of Rs.
600/- as earnest money. On 1st August, 1954
Bombay Merged Territo- ries and Areas (Jagirs Abolition) Act, 1953 (hereinafter
referred to as the 'Jagir Abolition Act') was applied to village Nalej. The
compensation in lieu of trees was not awarded to the Jagirdars as the same had
already been sold by the Jagirdars in favour of the contractor. The contractor
made an application to the Collector of Baroda under sou- rashtra Felling of
Trees Act for permission to cut the trees in question. The Collector forwarded
the application to the Mamlatdar of Chhota Udepur who granted the permission
vide order dated 25th
September, 1961. The
contractor then start- ed cutting the trees in question. However, the Prant Offi-
cer, Chhota Udepur prevented the contractor from cutting the trees. The
contractor then made representations to the Divisional Forest Officer and the
Government. In reply the contractor was told that the Jagirdar had no right to
the trees standing in the reserved forest area and in the waste land. Thereupon
the contractor's authorisation to cut the trees and his transit passes to
transport the goods were withheld. The Government invited tenders for the sale
of the trees already cut and sold the same on 30th July, 1962 for a sum of
Rs.15786/-. The Government also sold other trees to other persons and realised
from them some amounts. The Jagirdars and the contractor filed a suit against
the Gov- ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur,
District Baroda for rendition of account, for a declaration of the plaintiffs
title of the trees in question and for a declaration of the right of the
contractor to cut the trees in question and to remove the cut materials.
declaration was also sought that the impugned action of the Government was
illegal, ultra rites and unlawful and to give a direction to the Government to
issue the necessary authorisation and transit passes for cutting and removing
the trees in question in favour of the contractor. It was also prayed that out
of the sale proceeds of the cut materi- als on 30th July, 1962 for Rs.15786/- an amount of Rs.1267.82 having paid by the
Divisional Forest Officer, a decree for the balance of Rs.14518.18 may be
passed against the Government.
Trial Court by judgment dated 31st March, 1967
partly decreed the suit. It was declared that the jagirdars were the full
owners of the trees and as such the contractor had also become the full owner
of the trees. It was also declared that the contractor was entitled to cut and
remove these trees and the State of Gujarat, its officers, servants and agents
were ordered to issue necessary permit, authori- sation and transit passes to
plaintiff no.1 (contractor) for removal of the trees. The state was also
ordered to pay Rs.14518.18 together with proportionate costs and interest at 4%
per annum on this amount from the date of decree till realisation. The State of
Gujarat, its officers, servants and agents
were also restrained by perpetual injunction not to interfere with the rights
of ownership of the plaintiffs except in due course of law. Prayer for
rendition of ac- counts was dismissed.
State of Gujarat, aggrieved by the Judgment and
decree of the Trial Court filed an appeal in the High Court. The Division Bench
of the High Court allowed the appeal, set aside the decree passed by the Trial
Court and dismissed the suit. The cross objections filed by the plaintiffs were
would be necessary to state some events which have a material bearing with the
case. The Jagir Abolition Act came into force on 1.8.54 as already mentioned
above. The Govern- ment issued a notification dated 15th February, 1955 under Sec. 4 of the Indian Forest Act, 1927 and
constituted cer- tain survey numbers of the village Nalej into a reserve
forest. Thereafter another notification was issued under section 20 of the
Indian Forest Act constituting survey No.102 alone into a reserve forest. It
may be noted that in the present case we are concerned with the Teak and Mahuda
trees standing on survey No.102 of village Nalej. Learned counsel appearing on
behalf of the State of Gujarat had raised the following
contentions before the High Court:
Under the Forest Rules of Chhota Udepur State, Chhota Udepur State had exercised rights over three kinds of forest- 568
reserved, protected and open. These rights devolved upon the State of Gujarat. Therefore, the State of Gujarat can exercise those rights and issue
under section 4 of the Indian Forest Act, 1927 the impugned notification.
Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak
and mahuda trees were reserved trees and they were prohibited from being cut.
The interest which Chhota Udepur State had in those trees de- volved upon
the State of Gujarat and, there- fore, under Section 4
of the Indian Forest Act, 1927 it was within the power and authori- ty of the
State of Gujarat to issue the im- pugned
Under section 5 of the Jagir Abolition Act the soil vested in the Jagirdars and
not the trees. Therefore, the jagirdars could not have sold away to the
contractor the trees in question. Since the trees in question had vested in the
State it was within the power and authority of the State to issue the im- pugned
agreement executed by the Jagirdars in favour of the contractor were not valid
and, therefore, not enforceable at law. They did not confer any title upon the
if the contractor had acquired any rights under the said agreements, his remedy
lay in claiming compensation in respect of his rights which were hit by the
High Court dealt with the above four contentions in seriatim. While dealing
with the first contention the High Court considered that the decision of the
appeal largely turned upon the forest Rules of Chhota Udepur State. The High
Court after considering the matter in detail held that survey No.102 of village
Nalej was a reserved forest during the days of Chhota Udepur State. The High Court referred to the forest Rules of Chhota Udepur
State in order to find out the position in relation to survey no.102 of Nalej.
Schedule 'A' of the Rules contained the detailed discription of areas which was
declared as reserved forest. At serial No.11 Village Nalej has been mentioned
amongst other villages.
7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was
declared as reserved forest.
survey number of that area had been mentioned therein.
to the High Court this Entry in Schedule 'A' lends support to the fact that
there was one reserved forest admeasur- 569 ing 290 acres and 14 gunthas in
village Nalej of Chhota Udepur State. Survey No.102 of Village Nalej as a
reserved forest was not mentioned but this was on account of the reason that Chhota
Udepur State made its forest Rules in 1934 which were published in 1938 when
the reserved forest area of village Nalejj did not bear any survey number.
it was mentioned in the Rules that there was one reserved forest in village Nalej
to the extent of 290 acres and 1.4 Gunthas. The plaintiffs themselves admitted
in agreement exhibit 59 that survey No.102 was a reserved forest. It was then
held that in respect of a reserved forest Jagirdars did not have the right to
cultivate any land nor to cut any trees. The only right he had was a right to
graze cattle and to remove some forest produce in accord- ance with Regulations
made by Chhota Udepur State in that behalf. The Jagirdar did not have any right
to any trees situated in reserved forest. With the merger of Chhota Udepur State with the then State of Bombay the property belonging to Chhota Udepur State in the reserved forest devolved
upon the State of Bombay and subsequently upon the State of Gujarat. The High Court thus accepted the
first contention raised on behalf of the State of Gujarat.
High Court then considered the second contention and in this regard observed
that Rule 4 of the Forest Rules of Chhota Udepur State contained the list of
kinds of trees had been listed as reserved trees which included the teak and Mahuda
trees which formed the subject matter of the two transactions between the Jagirdars
and the contractor. The High Court then held that the right to forest produce
which Chhota Udepur State had in respect of such trees in the
"open forest" devolved upon the State of Bombay, on merger of Chhota Udepur State with it and there- after upon the
State of Gujarat. It was thus held that the second
contention raised on behalf of the State was right and the same was upheld.
High Court found no substance in the third conten- tion and rejected the same.
However, the High Court observed that in the light of the finding recorded on the
second contention it was quite clear that the trees which vested in the Jagirdars
vested in them subject to such right or inter- est in them which the State had
under the Forest Rules of Chhota Udepur State.
4th and last contention challenging the validi- ty of the two agreements
exhibits 58 and 59, the High Court observed that there are two aspects of this
contention. The first aspect is that agreements exhibits 58 and 59 were
compulsorily registerable and that since they were not registered, they did not
convey any title to the contractor in respect of the 570 subject matter of the
agreements. The High Court in this regard held that what was transferred was
the standing timber and not any interest in soil. Therefore, the two agreements
were not compulsorily registerable. The High Court then considered the second
aspect of the 4th conten- tion. It was argued on behalf of the State that all
the survey numbers to which agreements exhibits 58 and 59 relat- ed were waste
lands and as such under section 8 of the Jagir Abolition Act they vested in the
State. The High Court in this regard held that forest lands are not waste
if they have not vested by virtue of the provi- sions of section 8 of the Jagir
Abolition Act in the State of Gujarat. The High Court in view of the findings
recorded above on the first and second contentions in favour of the state,
allowed the appeal and dismissed the suit filed by the plaintiffs.
counsel for the plaintiffs appellants raised altogether new line of argument
before us. It was submitted that the appellants did not challenge the existence
or the legality of the Chhota Udepur Forest Rules but their submis- sion was
that the said Rules did not apply to the facts and circumstances of this case.
It has been contended that the aforesaid forest Rules, together with all other
laws of Chhota Udepur State, stood repealed on 28.7.48 when the Indian States
(Application of Laws) Order 1948 came into force. On and from 28.7.1948 the
Indian Forest Act, and the Rules made there under became applicable. The two
agreements were made on 9.1.1954 and 29.7.1954 long after the Chhota Udepur
Forest Rules were repealed and before the issuance of the notification by the
Government dated 12.5.55 declaring its intention to make a part of survey No.
102 of Nalej as reserved forest under Sec.4 of the Indian Forest Act. It has
thus been submitted that so far as the impugned contracts are concerned the
same are not adversely affected either by the Forest Rules of Chhota Udepur
State or by the Notifica- tion issued under section 4 of the Indian Forest Act.
It has been contented that the High Court was wrong in holding that the impugued
contracts dated 9.1.1954 and 29.7.1954 could not pass any right on the
contractor as the same were hit by the provisions of Chhota Udepur State Forest
Rules, when in fact those forests Rules had already been repealed.
also argued that the High Court's decision about reserved forests is based on
surmises and so called admis- sion in the contract exhibit 59. The words used
in the plaint are "alleged jungle bhag" which does not amount to an
admission that it is a reserved forest. In the agreement exhibit 59 the words
used are "So called reserved forest" and subsequently in the same
agreement the words used are "reserved Padtar (vacant)". It has thus
been submitted that the earlier use of words 'so called' is not repeated subse-
quently and as such it means that the plaintiffs had denied 571 the same to be
reserved forest. As regards Entry No.11 in the Schedule to the Forest Rules of Chhota
Udepur State, the High Court itself has observed that no survey number is
mentioned. This itself goes to prove that survey No.102 was not intended to be
covered by the said Entry No.11. Thus it was not proved that survey No.102 was
a reserved forest. It was further argued that assuming that survey No.102 in
village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State,
it ceased to be so from 28.7.48. It is an admitted position that the Notification
under Section 4 of the Indian Forest Act was published on 12.5.55 and in case
survey No.102 of village Nalej was already continuing as reserved forest under
the Forest Rules of Chhota Udepur State, then there was no necessity at all of
issuing a fresh Notification under Section 4 of the Indian Forest Act. The fact
that such Notification was issued on 12th May, 1955 clearly goes to show that
survey No.102 did not constitute reserved forest in between the period 28.7.48
not find any force in the above submission made on behalf of the appellants. So
far as the legality of the Chhota Udepur State's Forest Rules is concerned, it
was nowhere challenged by the plaintiffs. In the written submis- sions filed
before us on behalf of the appellants the point made at 1.1 itself reads as
under:- "The appellants do not challenge the existence or the legality of
the Chhota Udepur Forest Rules (hereinafter the Forest Rules). The appellants
merely submit that those Rules do not apply to the facts and circumstances of
from the above stand taken by the appellants themselves, Judgment of the High
Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat v.
Kumar Shri Ranjit Singhji Bhavani Singhji, Shn C.M. 7halair Jagir Abolition
Officer, Baroda and others decided on 22nd April, 1965 has been placed on
record by the Learned counsel for the appellants. In the aforesaid judgment Shelat,
C.J., and Bhagwati, J. (as he then was) have observed that in 1934, the State
of Chhota Udepur promulgated amended Forest Rules under Notification of August
1, 1934. The Notification was issued under the signature of the Ruler himself.
These Rules, therefore,. became and constituted the law of the State.
High Court in the impugned order before us has also placed reliance on such
Rules. The High Court has rightly held that at serial No.11 an area of 290
acres and 14 gun- thas of village Nalej was declared as reserved forest. No
survey number on that area could have been mentioned because the reserved
forest area of village Nalej did not bear any survey number at that time.
However, it cannot disputed be that there 572 was one reserved forest in
village Nalej admeasuring 290 acres and 14 gunthas and the plaintiffs
themselves have admitted in the plaint that the trees in question were in the
alleged jungle bhag. In the agreement exhibit 59 also the words used are
"so called reserved forest". Thus apart from the above admissions,
the entire case has been contest- ed in the trial court as well as in the High
Court on the assumption that the trees in question were standing on the area of
reserved forest declared by the Chhota Udepur State.
case the plaintiffs wanted to show that the trees in question were not inside
the reserved forest area they should have taken such stand in a clear manner
and it .would have been very easy for them to succeed in the suit without going
through all the various legal submissions made by the parties. Thus we see no
reason to take a different view from the High Court and we affirm the finding
of the High Court in this regard that the trees in question stood on the area
which was declared as reserved forest under the Forest Rules framed by the Chhota
order to appreciate the other submission made by the learned counsel for the
appellants we would refer to the Indian States (Application of Laws) order,
1948 (hereinafter referred to as 'Application of Laws order' 1948).It would be
necessary to reproduce Section 5 which repeals the enact- ments in force in
5:- Repeal of enactments in force in Indian States:- All enactments in force in
the Province of Bombay and extended to any such State under paragraph 3 shall
that the appeal by this Order of any such enactments shall not affect the
validity, invalidity, effect or consequence of any'thing already done or
suffered or any right, title, obligation or liability already acquired, accrued
or incurred, or any remedy or proceed- ing in respect thereof, of any release
or discharge of or from any debt, penalty, obli- gation, liability, claim or
demand or any indemnity already granted, or the proof of any past act or thing;
shall the repeal by this order of any enactment affect any principle or rule of
law, or established jurisdiction, form or course of pleading, practice or
procedure, or existing usage, custom, privilege, restriction, exemp- tion,
office or appointment, in so far as the same respectively is not in any way inconsist-
ent with any of the enactments extended under paragraph 3 of this order,
notwithstanding that the same respectively may have been in any manner
affirmed, recognised or derived by, in or from any enactment hereby repealed;
Nor shall the repeal by this order of any enactment revive or restore any
jurisdiction, office, custom, liability, right, title, privilege, restriction,
exemption, usage, practice, procedure or other matter or thing not now existing
or in force immediately before the date on which this order comes into force.
is no doubt that Chhota Udepur State, has been mentioned in Schedule 1 of the
Application of Laws order and all enactments in force in Chhota Udepur stood
repealed and the Indian Forest Act, 1927 mentioned in Schedule 11 became
applicable, but the proviso to section 5 clearly provides that the repeal by
this order shall not affect any right, title, obligation or liability acquired,
accrued or in- curred. Thus the Jagirdars had already acquired accrued or
incurred a liability in respect of the trees in question which were part of the
reserved forest as declared under the Forest Rules of Chhota Udepur State.
There is nothing on the record to show that the Jagirdars were cutting trees
from the part of village Nalei which was declared reserved forest during the
time of erstwhile Chhota Udepur State. Jagirdars could not have given a better
title to the contractot in respect of the trees, which the jagirdars themselves
did not possess. The repealing of the Forest Rules of Chhota Udepur State on
28th July, 1948 did not furnish any additional or increased rights to the Jagirdars
which they did not have before the merger of Chhota Udepur State.
been vehemently contended on behalf of the appel- lants that it was a case of
full proprietorship right in the Jagir and the Jagirdars had full and complete
rights of ownership in the soil, as well as the trees. Reliance is placed on
the definition of proprietary jagir under Clause XVIII as conternplated in
section 2 of the Jagir Abolition Act which reads as under:
Jagir" means a Jagir in respect of which the Jagirdar under the terms of a
grant or agreement or by custom or usage is entitled to any rights or interest
in the soil".
been contended that the Jagirdars in the present case had not only a right over
the trees but also interest in the soil and as such they had full right to sell
the trees to the contractor. It was submitted that even if there were any
restrictions on cutting of trees so long as forest rules of Chhota Udepur State
remained in force that restric- tion was removed on 28.7.48 when such rules
were repealed by the Application of Laws order. After the forest rules of Chhota
Udepur State were repealed, the Jagirdars got full right to alienate the trees
as such right was inherent in the right of proprietary Jagir. It was also
submitted that the Government of Bombay had itself taken policy decision that
all contracts made by the Jagirdars prior to the aboli- tion of jagits on
1.8.54 shall be honoured. It cannot be considered the intention of the
Government to take away such vested rights 574 in the jagirdar having come into
force on 28.7.48, after a lapse of seven years by issuing a Notification on
12.5.55 under Section 4 of the Indian Forest Act. It has also been contended
that the Government has recognized that right of full ownership in the trees in
favour of other jagirdars similarly situated and there was no justification for
taking such arbitrary and discriminatory action against the plain- tiffs alone.
above submissions are based on a total misconcep- tion. As already mentioned
above, there is no question of taking away any rights. It is no doubt correct
that it is a case of proprietary jagir, but it does not confer any right in
respect of trees standing in a reserved forest. Once it is established that
during the time of existence of erst- while State of Chhota Udepur an area admcasuring
290 acres and 14 gunthas in village Nalej was declared as reserved forest and Jagirdars
had no right at all in the trees stand- ing in such area of reserved forest,
the Jagirdars cannot be considered to have acquired a greater right on 28.7.48
when the Forest Rules of Chhota Udepur State were repealed by the Application
of Laws order.
is another insurmountable difficulty for the plaintiffs in as much as the trees
had not been cut and removed prior to 12.5.55 when admittedly a notification
has been issued under Sec. 4 of the Indian Forest Act also. That being so no
relief can be sought for cutting and removing the trees in question after
12.5.55 as the survey No.102 has been constituted as reserved forest under the
provisions of Indian Forest Act The tree in question are teak and Mahuda trees
which were out of 21 kinds of trees declared as reserved trees which were
prohibited from being cut under the extent of forest rules of Chhota Udepur
State. Such trees even if standing in forest were not allowed to be cut.
examining the matter from any angle, we are already of the opinion that the
plaintiffs are not entitled to any relief as claimed in the suit.
as the ground of discrimination is concerned, it is well settled that in order
to establish the same it is necessary to make out such case in the pleadings.
In the present case no such ground was taken in the plaint nor any facts or
material were placed on record during the trial of the suit or before the High
Court and the same cannot be considered for the first time before this Court,
specially when the defendants were not given any opportunity to meet the same.
view the High Courts was right in dismissing the suit. In the result we find no
force in this appeal and the same is dismissed. In the facts and circumstances
of the case we direct no order as to costs.