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Daulat Singh Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberWrit Appln. No. 14 of 1955
Judge
Reported inAIR1956Raj33
ActsTransfer of Property Act, 1882 - Sections 105; Easements Act, 1882 - Sections 52; Tenancy Law; Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 - Sections 22; Constitution of India - Article 226
AppellantDaulat Singh
RespondentState of Rajasthan and anr.
Appellant Advocate R.K. Rastogi and; P.N. Datt, Advs.
Respondent Advocate R.A. Gupta, Deputy Govt. Adv.
DispositionPetition dismissed
Cases ReferredFirm Chhotabhai Jethabhai Patel and Co. v. State
Excerpt:
- - 9. the learned government advocate also contended that the contract with thakur lakshman singh set up by the petitioner was never admitted by the government, and, in any case, as the petitioner did not allege that he paid any amount in pursuance of the contract to the jagirdar, he had failed to fulfil a condition precedent to his acquiring a right to cut the trees according to the terms of the contract and the state as the successor of the jagirdar was fully justified in preventing the petitioner from cutting the trees, and that, in any case, the facts which may prove the genuineness of the contract or the fulfilment of the necessary conditions by the petitioner can only be thrashed out in a regular suit......of india.2. the petitioner daulat singh has alleged that he was given a contract by thakur lakshman singh of ghanerao to cut and remove trees from his forest known as 'mahaveer block' 1000 acres in area situated within his jagir, on 14-6-1953, for a period of five years. it was alleged that the petitioner made an application to the government of rajasthan on 17-6-1953, for the grant of a licence to cut the trees as required by the rajasthan removal of trees (regulation) ordinance, 1949 (ordinance no. 8 of 1949). the government of rajasthan at first agreed to let the petitioner cut the trees from 50 acres of forest each year, but thereafter went back on their order on 25-1-1955, and refused permission to the petitioner for cutting the trees.it was alleged that the petitioner.....
Judgment:

Bapna, J.

1. This is a petition under Article 226 of the Constitution of India.

2. The petitioner Daulat Singh has alleged that he was given a contract by Thakur Lakshman Singh of Ghanerao to cut and remove trees from his forest known as 'Mahaveer Block' 1000 acres in area situated within his Jagir, on 14-6-1953, for a period of five years. It was alleged that the petitioner made an application to the Government of Rajasthan on 17-6-1953, for the grant of a licence to cut the trees as required by the Rajasthan Removal of Trees (Regulation) ordinance, 1949 (Ordinance No. 8 of 1949). The Government of Rajasthan at first agreed to let the petitioner cut the trees from 50 acres of forest each year, but thereafter went back on their order on 25-1-1955, and refused permission to the petitioner for cutting the trees.

It was alleged that the petitioner having obtained the right to cut the trees from the forest of Thakur Lakshman Singh of Ghanerao, had acquired a fundamental right which could not be taken away by the Government at their sweet will and pleasure.

It was contended that the Rajasthan Removal of Trees (Regulation) Ordinance was ultra vires, and the action of the Government in preventingthe petitioner in his endeavour to cut the trees was illegal and unjustifiable.

3. The petition was presented on 9-2-1955. The cause oi action was alleged to nave occurred on 1-2-1955, when the petitioner, who went on the spot to cut the trees under the contract, was physically prevented from cutting the trees. One Mohammad Usman was also made a party on the allegation that the Government had at first allowed the petitioner & Mohammad Usman to cut trees from an area of 50 acres each, but thereafter conferred the right to cut trees in 100 acres per year to Mohammad Usman alone.

4. The State in its reply pleaded chat the petitioner had not obtained any legal right to cut trees by his so-called contract from Lakshman Singh. It was urged that the so-called contract was a lease, and the Jagir of Lakshman Singh having been resumed by the Government on 22-8-1954, the rights alleged to have been acquired by the petitioner had come to an end. It was also alleged that the petitioner did not apply to the Sub-Divisional Magistrate for any licence to cut the trees, which was required under the Rajasthan Removal of Trees (Regulation) Ordinance and had no cause of action to challenge that Ordinance.

It was denied that the State had decided to allow the petitioner to cut the trees from 50 acres of land each year, but admitted that a certain inter departmental communication had taken, place in favour of the petitioner, but the final order passed was that the petitioner had no right to cut the trees and his application for permit was, as a result, rejected by the Government.

5. The nature of the right obtained by the petitioner from Thakur Lakshman Singh would appear to be one of licence, as held by their Lordships of the Supreme Court in -- 'Firm Chhotabhai Jethabhai Patel and Co. v. State, of Madhya Pradesh', AIR 1953 SC 108 (A). It was held that permission to cut the trees or to remove the leaves of trees granted by the proprietor was in the nature of a licence, and did not amount to a lease or transfer of any proprietary interest in the land.

6. Learned counsel for the petitioner strongly relied on the above case and urged that the resumption of Jagir did not put an end to the licence granted to the petitioner by the Jagirdar prior to resumption. The observations in Chhotabhai's case have however to be read with reference to the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, which was the subject of discussion and interpretation in that case.

7. The language of the Rajasthan Land Reforms and Resumption of Jagirs Act is, different from that of the Madhya Pradesh Act. As observed in paragraph 16 of the judgment in Chhotabhai's case (A):

'The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16-3-1950 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.'

8. It also appears from paragraphs 12 and 13 that the right or privilege affected by the Act was held to be the right or privilege of the proprietor or any person 'having interest in the proprietary right through the proprietor. It was held that the rights of a licensee were not proprietary rights and had not been determined by the abolition of the proprietary rights of the estate-holders.

Section 22 of the Rajasthan Act, however, lays down, among other things that on resumption not only the right, title and interest of the jagirdar, but also of every other person claiming through him in his jagir lands, including forests etc. shall stand resumed to the Government free from all encumbrances, and further that all rights, title and interests created in or over the jagir by the jagirdar or his predecessor-in-interest shall, as against the Government, cease and determine.

On a plain reading of the section not only the Jagirdari interest, but every right, title and interest of the Jagirdar, snd of every other person claiming through him, as also all rights, titleand interests created previously by the Jagirdaror his predecessor-in-interest were declared to cease and determine. The petitioner undoubtedly claims as a licensee through the Jagirdar and his interest was created by the Jagirdar previous to resumption.

It must, according to the plain language of the Act, be held to have determined from the date of resumption that is 22-8-1954. The petitioner was, therefore, not possessed of any right on the date of his coming to this Court.

9. The learned Government Advocate also contended that the contract with Thakur Lakshman Singh set up by the petitioner was never admitted by the Government, and, in any case, as the petitioner did not allege that he paid any amount in pursuance of the contract to the Jagirdar, he had failed to fulfil a condition precedent to his acquiring a right to cut the trees according to the terms of the contract and the State as the successor of the Jagirdar was fully justified in preventing the petitioner from cutting the trees, and that, in any case, the facts which may prove the genuineness of the contract or the fulfilment of the necessary conditions by the petitioner can only be thrashed out in a regular suit. Learned counsel for the petitioner by a belatedaffidavit asserted that Rs. 8000/- required to be paid to Thakur Lakshman Singh as first instalment of the Theka on 14-6-1953, had been paid by petitioner. By a still more belated application the petitioner wanted to produce the receipt alleged to have been executed by Thakur Lakshman Singh in respect of the said sum of Rs. 8000/-.

These facts are not admitted by the State, and apparently took place before the Government took over the Jagir. It was indeed curious that these important facts should not have been pleaded in the first instance in the petition, and the Government Advocate was thus instilled in raising the plea that even on assumption of the genuineness of the contract, the conditions precedent for the enforcement of the contract had not been complied with by the petitioner himself.

In any case, the facts being in dispute, this Court cannot grant relief in its extraordinary jurisdiction.

10. This petition has no force and is accordingly dismissed with costs.

11. Learned counsel for Mohammad Usman contended that he had been unnecessarily dragged to Court, no relief having been claimed against him. This is also correct. The petitioner will pay costs in two sets to the two respondents, counsel's fee for hearing being assessed at Rs.200/- for the State of Rajasthan and Rs. 50/- forMohammad Usman.


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