Skip to content


State of Himachal Pradesh and anr. Vs. Motilal Partap Singh and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 9 of 1979
Judge
Reported inAIR1981HP8
ActsTransfer of Property Act - Sections 3 and 54; ;Registration Act - 2(6); ;General Clauses Act - Section 3(26); ;Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 - Sections 3 and 4
AppellantState of Himachal Pradesh and anr.
RespondentMotilal Partap Singh and Co. and anr.
Appellant Advocate Inder Singh, Adv. General
Respondent Advocate K.D. Sood, Adv.
DispositionAppeal allowed
Cases ReferredSarahan Simla Forest Circle v. Daut. Admittedly
Excerpt:
property - sale - himachal pradesh common lands vesting and utilization act, 1974 - respondent was forest contractor entered into agreement with villagers for felling of trees - permission granted by collector for felling of trees but later changed his opinion after act of 1974 coming into force - after coming into force of act of 1974 deputy commissioner passed order that respondent had no right to fell trees as trees belonged to be vested with state - respondent filed writ petition seeking quashing of order of deputy commissioner - appeal - whether property in tress had passed to respondent - agreement between parties revealed that neither of parties knew about number of trees sold nor knew identity of trees sold by sellers - agreement in question was not a sale but only an agreement to.....v.d. misra, c.j.1. this letters patent appeal by the state is directed against the judgment of mr. justice c, r. thakur allowing the writ petition of the respondents.2. khasra nos. 166, 134 and 57 of village dhamrara, tehsil rohru is a shami-lat deh land owned by the villagers on this land stand large number of deodar, kail and rai trees. the respondents, who are contractors and forest lessees, were interested in buying the trees. they negotiated with the villagers who constituted a committee to settle the terms and conditions of sale of the trees. on 18th july, 1974 the respondents entered into an agreement with this committee and a sum of rs. 2,000/- was paid as advance.3. on 11th april, 1974 himachal pra-desh legislative assembly passed the himachal pradesh village common lands vesting.....
Judgment:

V.D. Misra, C.J.

1. This Letters Patent Appeal by the State is directed against the judgment of Mr. Justice C, R. Thakur allowing the writ petition of the respondents.

2. Khasra Nos. 166, 134 and 57 of village Dhamrara, Tehsil Rohru is a Shami-lat Deh land owned by the villagers On this land stand large number of Deodar, Kail and Rai trees. The respondents, who are contractors and forest lessees, were interested in buying the trees. They negotiated with the villagers who constituted a committee to settle the terms and conditions of sale of the trees. On 18th July, 1974 the respondents entered into an agreement with this committee and a sum of Rs. 2,000/- was paid as advance.

3. On 11th April, 1974 Himachal Pra-desh Legislative Assembly passed the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act No. 18 of 1974) (hereinafter referred to as the Vesting Act). It received the assent of the President on 9th August, 1974, and was published in Rajpatra Himachal Pradesh Extraordinary dated 29th August, 1974, It came into force immediately.

4. The respondents applied to the Conservator of Forests for the demarcation of the area and marking of the trees. This was done in order to ensure that there was no difficulty in obtaining the export permit for exporting the timber. On 31st August, 1974 the Conservator of Forests instructed the Divisional Forest Officer (D. F. O.) Rohru to demarcate the area and mark the trees silviculturally. As many as 2,300 trees were accordingly marked.

5. On 10th April, 1975 the Conservator of Forests asked the D. F. O. Rohru to make a reference to the Collector (Dy. Commissioner, Simla) for clearance in view of the Vesting Act. Reference was duly made by the D. F. O. on 3rd May, 1975. The Collector is said to have given the permission for felling the trees op 24th May, 1975,

6. After the respondents had felled 935 trees, they received a letter dated 21-8-1976 (Annexure-D) from the D F.O. Rohru informing the respondents that the Deputy Commissioner, Simla (Collector) has come to the conclusion that the respondents have no right to fell the trees.

7. The respondents thereafter filed the writ petition praying for quashing Annexure-D as well as the order made by the Deputy Commissioner, Simla. The petition was resisted. It was stated that no permission either in the name of the villagers or in the name of the respondent to fell the trees was ever given. The respondents were stated to have felled the trees surreptitiously till they were prevented from doing so with the police help. It was admitted that correspondence did take place between the Collector and the D. F. O. Rohru and the former had, under a bona fide mistake, given a clearance but it was .never conveyed tp the petitioners. It was contended that tha agreement in question does not amount to sale, the Collector had no jurisdiction to grant any clearance certificate and permit for felling of trees, and that the land in question had come to vest in the State free from all encumbrances.

8. We will first examine the agreement in question. Clause (1) of the agreement is that all the trees of various kinds detailed therein and growing on the land referred to and which will be found to be owned by the first party (the villagers) will be purchased by the second party (the present respondents) on the rates mentioned in the clause. Then follows the rates of Deodar, Kail and Raj trees with reference to eight classes of each tree. We are informed that these classes are according to the girth of the trees and as recognized by the forest department. Clause (2) states that in fulfilment of the bargain of 'Jis Kadar Dar-khtan Jis Kisam Me Niklege' (whatever number of trees of whichever kind are found). Rs. 2,000/- have been received as advance. Clause (3) inter alia states that it will be the duty of both the parties to get the trees marked from the forest department and to get them identified from the revenue department and to get requisite permission for felling and cutting! the trees. This clause also provides that if at the tune of getting the trees marked or identified any restriction is imposed by the Government or by any department and if the second party (the present respondents) do not get permission to sell the trees, then the first party will be bound to return the earnest money. The rest of the clauses are not relevant for our purpose,

9. There is no doubt that the respondents as well as the owners of the Sha-milat Deh in question had full knowledge of the fact that the Vesting Act had been passed by the Legislature and was awaiting the assent of the President. Both seem to be in a hurry to clinch the deal before the dead line. It is for that reason that Clause (3) takes note of the restriction which might be placed by the Government or by a department in selling the trees.

10. The first question which falls for our decision is whether the property in the trees had passed to the respondents. Before deciding this question we may deal with the contention whether the trees were moveable or immoveable property.

11. Mr, Inder Singh, the learned Advocate'General, contends that the trees were immoveable property and the agreement being for the sale of immoveable property worth more than Rs. 100/-, the agreement should have been registered. Mr. K. D. Sood, learned counsel for the respondents, submits that the trees are moveable property and so the agreement did not require any registration.

12. Section 3 of the Transfer of Property Act, lays down :

''Immoveable property' does not include standing timber, growing crops ot grass.'

Similarly Section 2 (6) of the Registration Act expressly excludes standing timber from the category of immoveable property, Moveable property is defined by Section 2 (9) of this Act and standing timber is expressly included in it. None of these provisions define 'immoveable property.' These only expresslv exclude 'standing timber.' It is obvious that but for these provisions 'standing timber' would have been treated as immoveable property. This is apparent from the definition of 'immoveable property' given by Sub-section (26) of Section 3 of the General Clauses Act, which reads thus :--

' 'Immoveable property' shall include land, benefit to arise out of land, and things attached to the earth, or permanently fastened to any thing attached to the earth;'

13. But what is 'standing timber'? It is trees. But trees are of various kinds and are used for various purposes. There are trees the wood of which is suitable for building. There are trees which are fruit bearing only. Still there are frees the wood of which can be used only aa fire-wood. Which of these trees will be standing timber? This question came up for decision in a number of cases and we will refer to some of them.

14. In Smt. Shantabai v. State of Bombay, AIR 1958 SC 532, Vivian Bose, J., after referring to the definition of 'immoveable property' in the General Clauses Act and the Transfer of Property Act, observed thus :

'Now it will be observed that 'trees' are regarded as immoveable property because they are attached to or rooted in the earth. Section 2 (6) of the Registration Act, expressly says so and, though the T, P, Act does not define immoveable property beyond saying that it does not include 'standing timber, growing crops or grass', trees attached to earth (except' standing timber) are immoveable property, even under the Transfer of Property Act because 6f Section 3 (26) of the General Clauses Act. In the absence of a special definition, the general definition must prevail. Therefore trees (except standing timber) are immoveable property.'

The learned Judge pointed out that there is a distinction between standing timber and a tree. After referring tp. the meaning of 'timber' as is given in Webster's Collegiate Dictionary, the learned Judge goes on to say : 'therefore 'standing timber' must be a tree that is in a state fit for these purposes and, further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil.'

15. In Baijnath v. Ramadhar, AIR 1963 All 214, a Full Bench of the Allahabad High Court considered the question whether Sisham and Nim trees were 'standing timber'. The majority ruled that whether a tree is a timber tree or not depends upon its nature and the use to which it is generally put and not upon whether there is a present intention in the mind of its owner of cutting it sooner or later. The third Judge held that the determining factor in such cases is the intention of the parties as determined by the circumstances of each case and the nature of the transaction; if the factors went to indicate that the parties intended to deal with the tree as timber, then it would be called standing timber,

16. It is common knowledge that Deodar, Kail and Rai are used for building It is also apparent that only those trees which were to be marked by the forest department silviculturally were to be felled. In other words marked trees were fit to be cut and used as timber. The intention of the parties was that the trees should be cut immediately. And this is evident from the fact that as many as 935 trees had been cut within a short period. We would thus hold that the agreement related to the 'standing timber' which is not immovable property, and did not require registration.

17. Whether the property in the trees had passed to the respondents or not will depend on whether the agreement in question is a 'sale' or merely 'an agreement to sell'. Sale is defined by Section 54 of the T. P. Act as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Section 77 of the Contract Act defines sale thus :

' 'Sale' is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer.'

Section 79 of this Act lays down 'where there is a contract for the sale of a thing which has yet to be ascertained, made or finished the ownership of the thing is not transferred to the buyer until it is ascertained made or finished.'

18. Sub-section (7) of Section 2 of Sales of Goods Act defines 'goods' meaning 'every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale'. Section 4 of this Act tells us what is sate and what is agreement to sell. Sub-section (3) of this section reads :--

'(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell.' Sub-section (4) lays down :

'An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.' Sub-section (3) of Section 6 reads :

'Contract of sale becomes an agreement to sell the goods where the seller purports to effect a present sale of future goods.'

19. The effects of the contract for the sale of goods are provided for in Chapter III of the Sale of Goods Act. It deals with the transfer of property as between seller and buyer. Section 18 lays down that if the contract is for the sale of unascertained goods, then the property in the goods is not transferred to the buyer unless and until the goods are ascertained. In case the contract is for the sale of specific goods and where the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is, done and the buyer has notice thereof : Section 21. If the seller is bound to weigh, measure, test or do something towards ascertaining the price of specific goods which are in a deliverable state, the property in the goods does not pass to the buyer unless such act or thing is done with notice to the buyer : Section 22. Unless and until the property in the goods is transferred to the buyer, the goods remain at the seller's risk : Section 26.

20. We will apply these tests to the facts of the present case to find out if the property in the trees had passed to the buyers, that is, the present respondents. We have already extracted the relevant parts of the agreement. It will be convenient to notice them again. The agreement shows that the parties neither knew the number of trees sold nor they knew the identity of trees owned by the sellers. Though the land had been identified by khasra numbers its actual demarcation was not known. Clause (I) of the agreement talks about 'Malkiat Farik Doem (that is sellers) Ke Niklenge.' This clearly shows that the ownership in respect of each tree had yet to be ascertained. Only the price of different kinds of trees of various girths was being settled. Clause (2) repeats the same fact by stating : 'Jis Kadar Darkhatan Jis Kisam Me Nekleng' which freely translated is 'whatever trees of whichever kind are found.' It is obvious that it was not known as to how many trees were of Deodar and how many were of Kail or Rai.

21. Clause (3) of the agreement shows that the trees had still to be identified. They had to be got marked from the forest department. Revenue department had to identify and sanction their felling and cutting. This was to be got done by the sellers as well as the buyers. The purpose of buying these trees was not only to cut them but also to take them away for sale. It is not disputed that under the rules, as they then were, an owner was entitled to cut his trees but he could not take them out of the area without the permission of the authorities. The facts show that the contract was for sale of unascertained goods. Even if it be assumed for the sake of argument that the agreement in question was for the sale of specific goods, the trees were not in a deliverable state unless and until the girth of each tree was measured, the forest department marked it as fit for cutting and the revenue department identified and gave permission for felling and cutting. The requisite permission from various departments could be obtained only by the owners. The buyers (respondents) were experienced. They were contractors and lessees of forests. They knew how to complete the formalities and obtain the requisite permission. However, since permission could be granted only to the owners, a duty was cast on the sellers to ask for the same. Thus the contract will still remain an agreement to sell.

22. In AIR 1968 SC 741, P.S.N.S. Ambalavana Chettiar and Co. Ltd. v. Express Newspapers Ltd., Bombay, the contract was for sale of a part of the newsprint lying in a godown. It was ruled that where no portion of specified large stock of goods lying in seller's go-down was appropriated to the contract by the seller with the buyer's consent, property in the goods had not passed to the buyers. As already pointed out, the question in the instant case is whether on 18th July, 1974, when the agreement in question was entered into between the parties, the agreement amounted to a sale or an agreement to sell. There were unspecified number of trees standing on the land in question but none of them had been identified and appropriated towards the contract.

23. In State of Madras v. Cannon Dunkerley & Co. AIR 1958 SC 560, the Court after referring to the Contract Act as well as the Sale of Goods Act, ruled: 'if under the contract of sale title to the goods has not passed, then there is an agreement to sell and not a completed sale.' In Commr. of Sales Tax, Eastern Division, Nagpur v. Husenali Adamji and Co., AIR 1959 SC 887, the agreement was for the supply to sawar logs which were to be despatched by the seller by rail and the goods were to be measured by the buyer on arrival at the factory, In these circumstances it was held that the contract was for sale of unascertained goods and the property in them could not pass unless and until the goods were ascertained.

24. In Dan Singh Bisht v. Firm Janki Saran Kailash Chander Dhampur, AIR 1948 All 396, the agreement between the parties gave the buyer right to cut and remove certain timber trees of certain girth for a sum of Rs. 25,000/- to be paid in agreed instalments. It was held that it still remained to be decided whether a particular tree has attained the minimum girth required under the agreement entitling the buyer to fell the same. It was further held that what trees would fulfil the requirement of the agreement was a matter which could not be known to the parties either at the time of agreement or even later. The sale, therefore, was held to be of unascertained goods which were ascertainable from time to time during the period that the agreement remained in existence, and under Section 18, Sale of Goods Act, the property in the trees could not pass so long as the ascertainment had not been made.

25. We have, therefore, no hesitation in holding that the agreement in question was not a sale but only an agreement to sell. We do not agree with the learned single Judge that it was a sale because 'a part of the money had been paid as sale price, demarcation had been made and the marking was also ordered.' As already stated, and it is not disputed by the parties, that demarcation of the area and marking of the trees was done long after the Vesting Act had come into force.

26. A contention has been raised by Mr. K. D. Sood, learned counsel for the respondents that the Collector having permitted the respondents to fell the trees, he could not change the decision to the detriment of the respondents without giving them an opportunity of being heard. As jurisdiction of the Collector to grant any such permission is challenged, we will first examine the question whether the Collector had any jurisdiction to permit the felling of trees.

27. At this stage it will be convenient to notice the relevant provisions of the Vesting Act. The preamble shows that it was enacted 'to provide for vesting and utilization of village common lands in the State of Himacha! Pradesh.' It may be noticed that a part of the erstwhile State of Punjab had come to the State of Himachal Pradesh when the State of Punjab was re-organized in 1966. This area was governed by Punjab Village Common Lands (Regulations) Act, 1961. Admittedly, the land in question was not a part of such area,

28. The relevant provision of Section 3 which provides for vesting of rights in the State Government reads thus :--

'3 (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests including the contingent interests, if any, of the landowner in the lands in any estate --

(a) and (b) .....

(c) described in revenue records as shamilat, shamilat deh, shamilat taraf, shamilat chak and patti in the areas comprised in Himachal Pradesh, immediately before first November, 1966 --shall stand extinguished and all such rights, title and interests shall vest in the State Government free from all encumbrances

(2) The provisions of Sub-section (1) of this section shall not apply to lands described in Clauses (b) & (c) of that subsection if, before the date of commencement of this Act --

(a) .....

(b) transfer of such lands is made by the landowner by way of sale, gift or exchange,

Section 4 is as under:

'4 (1) : The Collector shall call for from panchayats in his district, the record of leases, contracts or agreements entered into by the panchayats in respect of any land vested in the panchayats under the Punjab Village Common Lands (Regulation) Act, 1961. and the rules made thereunder and examine such record for satisfying himself as to the legality or propriety of such leases, contracts or agreements.

(2) Where on examination of the record under Sub-section (1) and after making such enquiry as he deems fit, the Collector is satisfied that such leases, contracts or agreements are hi accordance with the provisions of the said Act and rules, he shall pass order declaring such leases, contracts or agreements having been made on behalf of the State Government.

(3) Where on such examination and enquiry the Collector finds that a lease, contract or agreement has been entered into in contravention of any of the provisions of the said Act or the Rules made thereunder or has been entered into as a result of fraud or concealment of facts or is detrimental to the interest of the estate right-holders, he shall cancel such a lease, contract or agreement and such person shall be liable to ejectment Under the provisions of Section 150, of the Punjab Land Revenue Act, 1887 :

Provided that no order under Sub-sections (2) and (3) of this section shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement.'

It is not disputed before us that the land in question is a Shamilat Deh land and falls under Clause (c) of Sub-section (1) of Section 3. It is admitted that all rights, title and interest in this land stand extinguished and vest in the State Government free from all encumbrances in terms of Sub-section (1) of Section 3. It is conceded that Clause (b) of Sub-section (2) is not applicable to this case. It is not denied that there is no provision except Section 4 which confers jurisdiction on the Collector. It is obvious that this jurisdiction empowers the Collector to examine the record of lease, contract or agreement entered into by the Pan-chayats in respect of the land vested in them under the Punjab Village Common Land (Regulation) Act, 1961. The agreement in question admittedly does not fall under Section 4 and, therefore, the Collector had no jurisdiction to examine it.

29. The Collector has been empowered by Rule 9 of the Himachal Pradesh Village Common Lands Vesting and Utilization Rules, 1975 to settle disputes. This rule reads :

'9. If a dispute arises regarding entry of the land vested in the State Government the Collector shall be competent to decide the same after a summary inquiry.'

Obviously this has a reference to Section 3. There may be cases where a person may claim that his land has been wrongly entered as Shamilat Deh etc. There may be disputes about the entry of land referred to in Clauses (a) and (b) of Sub-section (1) of Section 3. All such disputes are to be decided by the Collector. The object is to settle the question whether a particular land, whose entry in the revenue record is under dispute, has come to vest in the Government or not. The Collector has no other function to perform. He has not been given any authority to grant any permission to anyone to fell and cut trees. It is beyond the pale of controversy that no amount of consent of the parties can confer jurisdiction on a tribunal which has no jurisdiction. Where a tribunal has jurisdiction to decide a matter, it has jurisdiction to decide rightly or wrongly. Such a decision may be wrong and against law but it cannot be said to be without jurisdiction. However, where a tribunal has no jurisdiction, its decision is non est. It does not exist in the eyes of law. Indeed, it never was,

30. It may be recalled that admittedly there was no dispute in respect of the entry of the land in question in the revenue records. It was entered as Shamilat Deh and it was nobody's case that it was not Shamilat Deh.

31. The Collector, therefore, had no Jurisdiction to examine the agreement in question and to decide whether the per-mission to cut the tree should be granted or not. It is true that the respondents had indeed cut 935 trees of various kinds. But it does not, and cannot, affect the nature of the order of the Collector.

32. Mr. Sood has pointed out the letter written by the Collector, a copy of which is on the records produced before us by the State. This is stated to be the decision of the Collector permitting the respondents to fell the trees. We have perused it. it is not addressed to the respondents. It is not meant for them. It is addressed to the Divisional Forest Officer in answer to the letter's letter. Tha matter was thereafter taken up by the Forest Officer with the Collector pointing out to the latter that his decision was not correct. After consulting the Law-Department, the Collector found that he had made a mistake and informed the Divisional Forest Officer who in turn wrote to the respondents informing them of the decision of the Collector (Anne-xure-D to the writ petition).

33. It is apparent that at no stage the Collector communicated his decision to the respondents. It is submitted by Mr. Sood that in fact the respondents had taken the letter from the office of the Collector and handed over the same to the Divisional Forest Officer, Rohru. This does not mean that it was addressed to the respondents. They have acted only as a messenger. It is not uncommon that many a time a person, in order to expedite the despatch and receipt of letters from one Government department to another, takes a letter from one and hands it over to the other. This will not amount to a communication to the messenger. The addressee will always remain the same. Such communications will always remain to be between the two departments. The writer will always be at liberty to change his opinion. The addressee may not accept the opinion given by the writer.

34. Moreover, the Collector in his affidavit has stated that he had never dealt with the matter under the Vesting Act. He has also stated that the permission for felling the trees could not be given by him but had to be given by the D. F. O. who had merely sought his advice administratively. Copy of the letter (Annexure R/A dated 7-7-1975) written by the D. F. O. (who was not made a party) has been placed on this record. This letter shows that the D. F. O. never gave any permission to fell the trees and, on the other hand, his field staff prevented the respondents from felling the trees. The trees were cut, it is stated, whenever the field staff would leave the place after ensuring that the work would not start again. Finally, police help had to be sought to stop felling of the trees.

35. The respondents are, therefore, not Justified in submitting that they had the right to be heard before the Collector changed his opinion conveyed to the Divisional Forest Officer.

36. The Vesting Act came into force on 29th August, 1974. By virtue of Section 3 'all rights, title and interests including the contingent interests, if any of the landowner in the lands' stood extinguished and vested in the State. The expression 'right, title and interest of the landowner in the land' is wide enough to include trees standing on the land: See AIR 1968 SC 612, Divisional Forest Officer, Sarahan Simla Forest Circle v. Daut. Admittedly no tree had been cut by the time the Vesting Act had come into force. We have already held that the property in the trees had remained with the land-owners under the agreement in question and had not passed to the respondents. The respondents had, therefore, no right to fell the trees.

37. Lastly, Mr. Sood contends that the State is prevented from prohibiting the felling of the tree on the principle of promissory estoppel. We need not discuss various decisions of the Supreme Court cited by the parties on this aspect since no case for the application of this principle is made out, As already discussed, there is nothing to show that any representation was made by the State to the respondents to fell the trees. K is true that trees were marked silviculturally by the forest department but admittedly no permission was given by it to fell the trees. We have already discussed how the trees were surreptitiously cut and police had to be summoned to prevent the respondents from felling the trees.

38. In view of the above discussions, we would allow the appeal, set aside the impugned judgment and dismiss the writ petition with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //