Appeal No1865 of 1975
From the Judgment and Decree dated 71021975 of the Gujarat High Court in First Appeal No 291 of 1967
566 AS Qureshi NK Sahoo PH Parekh and Ms Chetna Anand for he Appellant
Dushyant Dave Mrs Nandini Gore for Mrs M Karanjawa la R Karanjawala NP Anip Sachthey and Rajesh for the Respondents
The 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 911954 sold all the teak trees in favour of plaintiff no1 hereinafter referred to as the contractor for a sum of Rs6001 and received a sum of Rs 101 as earnest money
By 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 5001and 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 Rs15786 
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
567 A 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 Rs15786 an amount of Rs126782 having paid by the Divisional Forest Officer a decree for the balance of Rs1451818 may be passed against the Government
The 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 no1 contractor for removal of the trees
The state was also ordered to pay Rs1451818 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
The 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 also dismissed
It would be necessary to state some events which have a material bearing with the case
The Jagir Abolition Act came into force on 1854 as already mentioned above
The Govern ment issued a notification dated 15th February 1955 under Sec 4 of the and constituted cer tain survey numbers of the village Nalej into a reserve forest
Thereafter another notification was issued under section 20 of the constituting survey No102 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 No102 of village Nalej
Learned counsel appearing on behalf of the State of Gujarat had raised the following contentions before the High Court 1
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 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 it was within the power and authori ty of the State of Gujarat to issue the im pugned notification
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 notification
The 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 contractor
Alternatively 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 impugned notification
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 No102 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 no102 of Nalej
Schedule A  of the Rules contained the detailed discription of areas which was declared as reserved forest
At serial No11 Village Nalej has been mentioned amongst other villages
Columns 7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was declared as reserved forest
No survey number of that area had been mentioned therein
According 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 No102 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
However it was mentioned in the Rules that there was one reserved forest in village Nalej to the extent of 290 acres and 14 Gunthas
The plaintiffs themselves admitted in agreement exhibit 59 that survey No102 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
The 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 reserved trees
21 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
The 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
In the 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 lands
Therefore 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
Learned 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 28748 when the Indian States Application of Laws Order 1948 came into force
On and from 2871948 the  and the Rules made thereunder became applicable
The two agreements were made on 911954 and 2971954 long after the Chhota Udepur Forest Rules were repealed and before the issuance of the notification by the Government dated 12555 declaring its intention to make a part of survey No 102 of Nalej as reserved forest under Sec4 of the 
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 
It has been contented that the High Court was wrong in holding that the impugued contracts dated 911954 and 2971954 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
It was 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 No11 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 No102 was not intended to be covered by the said Entry No11
Thus it was not proved that survey No102 was a reserved forest
It was further argued that assuming that survey No102 in village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State it ceased to be so from 28748
It is an admitted position that the Notification under Section 4 of the was published on 12555 and in case survey No102 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 
The fact that such Notification was issued on 12th May 1955 clearly goes to show that survey No102 did not constitute reserved forest in between the period 28748 to 12555
We do 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 11 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 this case
Apart from the above stand taken by the appellants themselves Judgment of the High Court of Gujarat in Special Civil Application No 40461 State of Gujarat vs Kumar Shri Ranjit Singhji Bhavani Singhji Shn CM 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 CJ 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
The High Court in the impugned order before us has also placed reliance on such Rules
The High Court has rightly held that at serial No11 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
In 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 Udepur State
In 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  1948It would be necessary to reproduce Section 5 which repeals the enact ments in force in Indian States
Section 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 stand repealed Provided 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 Nor 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 573 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
There 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 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
It has 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 Proprietary 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
It has 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 28748 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 1854 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 28748 after a lapse of seven years by issuing a Notification on 12555 under Section 4 of the 
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
The 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 28748 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order
There is another insurmountable difficulty for the plaintiffs in as much as the trees had not been cut and removed prior to 12555 when admittedly a notification has been issued under Sec 4 of the also
That being so no relief can be sought for cutting and removing the trees in question after 12555 as the survey No102 has been constituted as reserved forest under the provisions of 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
Thus 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
So far 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
In our 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
YL Appeal dismissed


Summary:
The appellant a Rigman in the Department of Mines and Geology State of Karnataka was initially appointed as a local candidate on the newly created post of Junior Engineer Mechanical
Later he was regularly selected by the State Public Service Commission and appointed on the said post on 451970 by the Director and was confirmed on the said post on 2991972
On 16121974 he alongwith respondents No 3 to 7 who were drillers in the Department was promoted as Assistant Drilling Engineer and was shown senior to them
However in the revised provisional seniority list as well as in the final seniority list he was shown junior to respondents No 3 to 7 in the cadre of Assistant Drilling Engineer
The appellant filed an application before the State Administrative Tribunal challenging the seniority lists which was rejected holding i the appellant s appointment as Junior Engineer was irregular because it was not support ed by Recruitment Rules and the Director was not the ap pointing authority ii since the appellant had not ac quired three years experience as regular incumbent he was not qualified to be promoted as Assistant Drilling Engineer his regular employment could only be related from the date of framing of the Recruitment Rules
Accordingly the Tribunal held that appellant s service from 4th May 1970 to 23rd August 1973 could not be taken into considera tion for reckoning his seniority and hence he was junior to Respondents No3 to 7
599 600 The appellant filed an appeal in this Court challeng ing the Tribunal s order contending that i in view of his recruitment as a regular employe on selection by the Service Commission his employment was regular in nature ii the post to which he was appointed was regularly created post and was higher than that of respondents even during the period there existed recruitment rules in any case after his confirmation it was not open to the Tribunal to hold his appointment irregular and iii in view of the guidelines issued by the State Government under which irregular ap pointments were regularised even if it is assumed his initial appointment was irregular it has to be treated regular throughout
Allowing the appeal and setting aside the order of the Tribunal this Court HELD 1
Rule 72 of the Karnataka Civil Services Classification Control  Appeal  Rules 1957 read with column 2 of Schedule 11 thereto clearly shows that the Director is the appointing authority for Junior Engineers
The appellant was found qualified and was duly selected by the Public Service Commission and appointed as Junior Engi neer in 1970
He worked on the post uninterruptedly till he was promoted to the next higher post of Assistant Drilling Engineer alongwith the respondents No 3 to 7
The Tribunal was therefore not right in holding that the appointment made was irregular and that the Director was not the ap pointing authority for Junior Engineers
Accordingly his experience in the post of Junior Engineer from 1970 till his promotion to the next higher post could not be ignored
605 F 604 G 607 H 608 A 2
Since the posts existed on the establishment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment it cannot be said that the absence of recruitment rules made the appointment illegal or irregular
Moreover the irregular appointments were regularised by the Government Memorandum dated 5th July 1976
606 B C 3
The appellant s seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Government could not be disturbed by doubting the regularity of the initial appointment after so many years
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experi ence as a Junior Engineer could be overlooked
Therefore his 601 seniority in the promotion post could not be upset on the ground that he did not possess the requisite experience
607 B C Direct Recruit Class H Engineering Officers  Associa tion vs State of Maharashtra  Ors
  fol lowed
The appellant s seniority over respondents No 3 to 7 shall be restored and he shall be shown to be senior to them
608 B