1. Respondents nos. 1 to 11 were the Jagirdars of Waghach State in formerSankeda Mewar in Reva Kantha Agency which now forms part of the State ofGujarat. They claimed that they were the full owners of all the land includingforest areas in the said State and exercised full revenue power during theirregime. There were 39 villages in Waghach State in all of which there wereforests. Except for the lands which were cultivated, all the lands in the saidvillages were forest lands. Respondents nos. 1 to 11 further claimed that theyhad full proprietary rights over the forest lands and enjoyed the produce asfull owners thereof. By the agreement of merger dated June 1, 1948 the State ofWaghach was merged with the State of Bombay with effect from June 10, 1948. OnAugust 19, 1953, respondents 1 to 11 entered into an agreement with respondentno. 12 whereby respondent no. 12 became entitled to cut and remove all speciesof trees from the forest lands in the 39 villages for a period of ten years. OnAugust 1, 1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act,1953 (Act XXXIX of 1954) came into force. This Act was passed with the objectof abolishing jagirs in the merged territories and merged areas in the State ofBombay and providing for matters consequential and incidental thereto. Thejagirs were classified, under the Act, into two categories, namely, (1)Proprietary jagirs and (2) Non-proprietary jagirs. It is the undisputedposition in the present case that the jagirs fell in the category ofproprietary jagirs. Under s. 5 of the Jagirs Abolition Act the Jagirdars becameoccupants in the lands including forest areas which were in their possessionbefore coming into force of the Act. On July 6, 1956 the State Governmentissued a notification under s. 34(A) of the Indian Forest Act. declaring alluncultivated lands in the said 39 villages to be forests for the purposes ofCh. 5 of the Act. On March 19, 1953 the Divisional Forest Officer wrote aletter to the respondents wherein he stated that all the rights of thejagirdars had been abolished by the Jagirs Abolition Act and that the reservedspecies of trees standing on the lands belonged to the State Government. He,therefore, asked the respondents to refrain from cutting teak and Pancharaotrees standing in the forest lands. On July 11, 1958, the Divisional ForestOfficer wrote another letter to the respondents in which he stated that thereserved species of trees - teak, blackwood and sandalwood - vested in theState Government and, therefore, prohibited the respondents from cutting andremoving the material from those trees. He also warned the respondents that ifthey cut and removed the material of such trees they will be liable toprosecution. On the same date he wrote another letter to the respondents andinformed them that the material obtained by cutting teak and blackwood treeswhich was lying in the forest lands, had been advertised for sale. Therespondents thereafter filed a Special Civil Application no. 2146 of 1958 inthe High Court of Judicature at Bombay against the applicants for the grant ofa writ in the nature of mandamus under Art. 226 of the Constitution directingthem to cancel the orders contained in the letters of the Divisional ForestOfficer dated March 19, 1958 and July 11, 1958 and to restrain the appellantsfrom enforcing the said orders. The High Court, by its judgment dated January14, 1959, allowed the application of the respondents holding that after cominginto force of the Jagirs Abolition Act the rights of the jagirdars in theforest lands and the trees were extinguished but at the same time jagirdarsbecame occupants of the forest lands under s. 5(1)(b) of the said Act and theyaccordingly became entitled to the trees standing on the forest lands. The HighCourt held that all the trees standing on the forest lands belonged to therespondents 1 to 11 and the same did not belong to the State Government andconsequently the State Government was not entitled to sell the materialobtained by cutting the trees. Accordingly the High Court issued an injunctionrestraining the appellants from preventing the respondents from cutting anyspecies of trees standing in the forest lands in the villages in question andfrom removing and disposing of the produce thereof. The High Court further heldthat this order would be without prejudice to the right of the StateGovernment, if they had any, to reserve any class of trees under s. 40 of theLand Revenue Code or under any other law for the time being in force, or toimpose such restrictions as it may be lawful for them to do, under theprovisions of the Indian Forest Act and the rules made thereunder.
2. The present appeal is brought by special leave on behalf of the State ofGujarat and the other appellants against the order of the High Court ofJudicature at Bombay in the Special Civil Application no. 2146 of 1958.
3. The question present for determination in this case is whether the treesstanding in the forest lands of the 39 villages in question belong to thejagirdars - respondents 1 to 11 or to the State Government and whether therespondents have a right to cut and remove the trees including the reservedspecies of trees from the forest lands of these villages.
4. Section 3 of the Bombay Merged Territories and Areas (Jagirs Abolition)Act, 1953 (hereinafter to be called the Jagirs Abolition Act) states :
'3. Notwithstanding anythingcontained in any usage, grant, sanad, order, agreement or any law for the timebeing in force, on and from the appointed date, -
(i) all jagirs shall be deemedto have been abolished;
(ii) save as expressly providedby or under the provisions of this Act, the right of a jagirdar to recover rentor assessment of land or to levy or recover any kind of tax, cess, fee, chargeor any hak, and the right of reversion lapse, if any, vested in a jagirdar, andall other rights of a jagirdar or of any person legally subsisting on the saiddate, in respect of a village as incidents of jagir shall be deemed to havebeen extinguished.'
5. Under s. 4 all jagir villages are made liable to the payment of landrevenue in accordance with the provisions of the Code and the rules madethereunder, and the provisions of the Code and the rules relating tounalienated lands are made applicable to such village. Section 5(1)(b) providesas follows :
'5. (i) In a proprietaryjagir village, - ............ ................................ ............
(b) in the case of land otherthan Gharkhed land, which is in the actual possession of the jagirdar or in thepossession of person other than a permanent holder holding through or from thejagirdar, such jagirdar, ........... .................................. ...........
6. shall be primarily liable to the State Government for the payment of landrevenue due in respect of such land and shall be entitled to all the rights andshall be liable to all the obligations in respect of such land as an occupantunder the Code or any other law for the time being in force : .......... .................................. ............
7. Section 8 of the jagirs Abolition Act states :
'8. All public roads, lanesand paths, the bridges, ditches, dikes and fences, on or beside the same, thebed of the sea and of harbours, creeks below high water mark, and of rivers,streams, nalas, lakes, wells and tanks and all canals and water courses, andall standing and flowing water, all unbuilt village site lands, all waste landsand all uncultivated lands (excluding lands used for building or othernon-agricultural purposes) which are situate within the limits of any jagirvillage, shall, except in so far as any rights of any person other than thejagirdar may be established in or over the same and except as may otherwise beprovided by any law for the time being in force, vest in and shall be deemed tobe, with all rights in or over the same or appertaining thereto, the propertyof the State Government and all rights held by a jagirdar in such propertyshall be deemed to have been extinguished and it shall be lawful for theCollector, subject to the general or special orders of the State Government, todispose them of as he deems fit, subject always to the rights of way and otherrights of the public or of individuals legally subsisting. .....................................'
9. Section 9 reads :
'9. The rights to trees specially reserved under theIndian Forest Act, 1927, or any other law for the time being in force, exceptthose the ownership of which has been transferred by the State Government underany contract, grant or law for the time being in force, shall vest in the StateGovernment and nothing in this Act shall in any way affect the right of theState Government to apply the provisions of the Indian Forest Act, 1927, as inforce in the pre-Reorganisation State of Bombay, excluding the transferredterritories to forests in a Jagir Village.' ................. .................... ..............
10. Section 10 provides as follows :
'10. Nothing in this Act or any other law for thetime being in force, shall be deemed to affect the rights of any jagirdarsubsisting on the appointed date to mines or mineral products in a jagirvillage granted or recognised under any contract, grant or law for the timebeing in force or by custom or usage.'
11. Section 11 provides for compensation to Jagirdars in the manner providestherein.
12. Section 2(2) of the Jagirs Abolition Act states that any word orexpression which is defined in the Code and not defined in the Act shall bedeemed to have the meaning given to it in the Code. Section 2(1)(ii) of theJagirs Abolition Act defines the 'Code' to mean 'the Bombay Land Revenue Code,1879'.
13. Section 3(16) of the Bombay Land Revenue Code defines'Occupant' as a holder in actual possession of unalienated land,other than a tenant : provided that where the holder in actual possession is atenant, the landlord or superior landlord, as the case may be, shall be deemedto be occupant. Section 3(17) defines 'Occupancy' to mean a portionof land held by an occupant. Under s. 3(19) of the Code 'Occupation'means possession. Section 40 of the Bombay Land Revenue Code provides asfollows :
'40. In villages, orportions of villages, of which the original survey settlement has beencompleted before the passing of this Act, the right of the Government to alltrees in unalienated land, except trees reserved by the Government or by anysurvey officer, whether by express order made at, or about the time of suchsettlement, or under any rule, or general order in force at the time of suchsettlement, or by notification made and published at, or at any time after,such settlement, shall be deemed to have been conceded to the occupant. But inthe case of settlement completed before the passing of Bombay Act 1 of 1865this provision shall not apply to teak, black-wood or sandal-wood trees. Theright of the Government to such trees shall not be deemed to have beenconceded, except by clear and express words to that effect.
'In the case of villages orportions of villages of which the original survey settlement shall be completedafter the passing of this Act, the right of the Government to all trees inunalienated land shall be deemed to be conceded to the occupant of such landexcept in so far as any such rights may be reserved by the Government, or byany survey officer on behalf of the Government, either expressly at or aboutthe time of such settlement, or generally by notification made and published atany time previous to the completion of the survey settlement of the district inwhich such village or portion of a village is situate.
'When permission to occupyland has been, or shall hereafter be granted after the completion of the surveysettlement of the village or portion of a village in which such land issituate, the said permission shall be deemed to include the concession of theright of the Government to all trees growing on that land which may not havebeen, or which shall not hereafter be, expressly reserved at the time ofgranting such permission, or which may not have been reserved, under any of theforegoing provisions of this section, at or about the time of the originalsurvey settlement of the said village or portion of a village.
'Explanation. - In thesecond paragraph of this section, the expression 'In the case of villagesor portions of villages of which the original survey settlement shall becompleted after the passing of this Act' shall include cases where thework of the original survey settlement referred to therein was undertakenbefore the passing of this Act as well as cases where the work of an originalsurvey settlement may be undertaken at any time after the passing of thisAct.'
14. Section 41 states :
'41. The right to all trees specially reservedunder the provision of the last preceding section, and to all trees, brushwood,jungle, or other natural product growing on land set apart for forest reservesunder section 32 of Bombay Act I of 1865 or section 38 of this Act, and to alltrees, brushwood, jungle or other natural product, wherever growing, except inso far as the same may be the property of individuals or of aggregates ofindividuals capable of holding property, vests in the State Government and suchtrees, brushwood, jungle or other natural product shall be preserved ordisposed of in such manner as the State Government may from time to timedirect.'
15. Section 65 states :
'65. An occupant of land assessed or held for thepurpose of agriculture is entitled by himself, his servants, tenant, agents, orother legal representatives, to erect farm-buildings, construct wells or tanks,or make any other improvements thereon for the better cultivation of the land,or its more convenient use for the purpose aforesaid.
16. But, if any occupant wishes to use his holding or any part thereof forany other purpose the Collector's permission shall in the first place beapplied for by the occupant.
17. The Collector, on receipt of such application,
(a) shall send to the applicant awritten acknowledgment of its receipt, and
(b) may, after due inquiry,either grant or refuse permission applied for;
18. When any such land is thus permitted to be used for purpose unconnectedwith agriculture it shall be lawful for Collector, subject to the general orderof the State Government to require the payment of a fine in addition to any newassessment which may be leviable under the provisions of section 48.'
19. Section 68 states that the occupant's rights are conditional, and is tothe following effect :
'68. An occupant is entitledto the use and occupation of his land for the period, if any, to which histenure is limited, or if the period is unlimited, or a survey settlement hasbeen extended to the land, in perpetuity conditionally on the payment of theamounts due on account of the land revenue for the same, according to theprovisions of this Act, or of any rules made under this Act, or of any other law,for the time being in force, and on the fulfilment of any other terms orconditions lawfully annexed to his tenure; ...................................'
20. The High Court expressed the view that under s. 3 of the jagirsAbolition Act the rights of the jagirdars in the forest lands and the treeswhich grew upon them were extinguished. The High Court further held that withthe coming into force of the Jagirs Abolition Act jagirdars became theoccupants in the forest lands under s. 5(1)(b) of that Act and the respondents1 to 11 become, therefore, entitled to the trees standing on the forest lands.In our opinion, the view expressed by the High Court is erroneous and must bereversed. It is manifest that under s. 3 of the Jagirs Abolition Act all jagirswere abolished and all the rights of the jagirdars were extinguished, savethose rights which are expressly provided by other provisions of the Actitself. It is also manifest that under s. 5(1)(b) of the Act the only rightsconferred on the jagirdars are the rights of occupancy of the forest lands. Inour opinion, the rights of the occupants under the Bombay Land Revenue Code donot include the right to cut and remove the trees from the forest lands. Thereason is that the 36 villages in dispute have not been surveyed or settled anduntil there is completion of the survey and settlement there is no question ofconcession on the part of the State Government of the right to the trees infavour of the occupants. Section 40 of the Bombay Land Revenue Code providesthat in the case of villages of which the original survey settlement has beencompleted before the passing of the Act, the right of the Government to all treesin unalienated land, except trees reserved by the Government or by any surveyofficer, whether by express order made at, or about the time of suchsettlement, or under any rule, or general order in force at the time of suchsettlement, or by notification made and published at, or at any time after,such settlement, shall be deemed to have been conceded to the occupant. Thesecond para of s. 40 deals with concession of Government rights to trees incase of settlements completed after the passing of the Act. The second parastates that in the case of villages or portions of villages of which theoriginal survey settlement shall be completed after the passing of the Act, theright of the Government to all trees in unalienated land shall be deemed to beconceded to the occupant of such land except in so far as any such rights maybe reserved by the Government, or by any survey officer on behalf of theGovernment, either expressly at or about the time of such settlement, orgenerally by notification made and published at any time previous to thecompletion of the survey settlement. The third paragraph of s. 40 relates tothe concession of Government rights to trees in case of land taken up aftercompletion of settlement. The section states that when permission to occupyland has been granted after the completion of the survey settlement of thevillage, the said permission shall be deemed to include the concession of theright of the Government to all trees growing on that land which may not havebeen, or which shall not hereafter be, expressly reserved at the time ofgranting such permission. In the present case, the 36 villages in question haveadmittedly not been surveyed and settled and the necessary conclusion to bedrawn is that the rights of the State Government to trees cannot be deemed tobe conceded to the occupants of the land. The assumption is implicit in s. 40of the Bombay Land Revenue Code that all the trees standing and growing on thelands with the occupants belong to the State Government and not to theoccupants and until there is a survey and settlement of the village thequestion of concession on the part of the State Government of rights to thetrees does not arise. In other words, until there is survey and settlement ofthe land there is no implication in favour of respondents 1 to 11 that they hadconcession of the rights of the Government to the trees standing on the forestlands.
21. On behalf of the respondents Mr. S. T. Desai referred to s. 9 of theJagirs Abolition Act and stressed the argument that the right of treesmentioned in that section alone vested in the State Government and there was noother reservation in the Act or any other law, in favour of the StateGovernment. It was contended that by implication it must be held that thejagirdars had rights to the trees in the forest areas apart from thosementioned in s. 9 of the Act. We do not accept this argument as correct.Section 3 of the Act provides for abolition of jagirs and under that sectionall jagirs shall be deemed to have been abolished on and from the appointeddate i.e., August 1, 1954 and all rights of a Jagirdar, in respect of a jagirvillage as incidents of jagir, shall be deemed to have been extinguished byvirtue of the section unless there is express provision in the Act saving suchright. In our opinion, s. 9 of the Jagirs Abolition Act is not an expressprovision saving the right of the jagirdars with regard to the trees and theargument of Mr. Desai must be rejected on this point. Our view is supported bythe language of s. 10 of the Jagirs Abolition Act which expressly saves theright of the jagirdar to mines or mineral products in a jagir villagesubsisting on the appointed day. There is no provision in the Jagirs AbolitionAct corresponding to s. 10 with regard to the saving of the right to the treesin favour of the jagirdars. We are accordingly of the opinion that after cominginto force of the Jagirs Abolition Act respondents 1 to 11 became occupants inrespect of the forest lands in the 36 villages and the only rights which theyhave are those of occupants under the provisions of the Bombay Land RevenueCode and such rights do not include the right to cut and remove the trees fromthe forest lands of the villages in question.
22. In our opinion, the High Court was in error in holding that therespondents were entitled to cut and remove all species of trees standing inthe forest lands of the 36 villages in question. We accordingly allow thisappeal, set aside the order of the High Court dated January 14, 1959 in SpecialCivil Application no. 2146 of 1958 and order that the Special Civil Applicationshould be dismissed. The appellants are entitled to costs both in this Courtand in the High Court.
23. Appeal allowed.