vil Appeal No 281 of 1962
Appeal by special leave from the judgment and order dated January 14 1959 of the Bombay High Court in Special Civil Application No 2145 of 1958
SG Patwardhan and RH Dhebar for the appellants
ST Desai JB Dadachanji OC Mathur and Ravinder Narain for respondents No 1 2 4 6 10 and 12
The Judgment of the Court was delivered by Ramaswami J
Respondents nos
1 to I 1 were the Jagirdars of Waghach State in former Sankeda Mewar in Reva Kantha Agency which now forms part of the State of Gujarat
They claimed that they were the full owners of all the land including forest areas in the said State and exercised full revenue power during their regime
There were 39 villages in Waghach State in all of which there were forests
Except for the lands which were cultivated all the lands in the said villages were forest lands
Respondents nos
1 to l1 further claimed that they had full proprietary rights over the forest lands and enjoyed the produce as full owners thereof
By the agreement of merger dated June 1 1948 the State of Waghach was merged with the State of Bombay with effect from June 10 1948
On August 19 1953 respondents 1 to 11 entered into an agreement with respondent No 12 whereby respondent No 12 became entitled to cut and remove all species of trees from the forest lands in the 39 villages for a period of ten years
On August 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 object of abolishing jagirs in the merged territories and merged areas in the State of Bombay and providing for matters consequential and incidental thereto
The jagirs were classified under the Act into two categories namely 1 Proprietary jagirs and 2 Non proprietary jagirs
It is the undisputed position in the present case that the jagirs fell in the category of proprietary jagirs
Under section 5 of the Jagirs Abolition Act the Jagirdars became occupants in the lands including forest areas which were in their possession before coming into force of the Act
On July 6 1956 the State Government issued a notification under section 34A of the Indian Forest Act
declaring all uncultivated lands in the said 39 villages to be forests for 179 the purposes of Ch
5 of the Act
On March 19 1953 the Divisional Forest Officer wrote a letter to the respondents wherein he stated that all the rights of the jagirdars had been abolished by the Jagirs Abolition Act and that the reserved species of trees standing on the lands belonged to the State Government
He therefore asked the respondents to refrain from cutting teak and Pancharao trees standing in the forest lands
On July 11 1958
the Divisional Forest Officer wrote another letter to the respondents in which he stated that the reserved species of trees teak blackwood and sandalwood vested in the State Government and therefore prohibited the respondents from cutting and removing the material from those trees
He also warned the respondents that if they cut and removed the material of such trees they will be liable to prosecution
On the same date he wrote another letter to the respondents and informed them that the material obtained by cutting teak and blackwood trees which was tying in the forest lands had been advertised for sale
The respondents thereafter filed a Special Civil Application No 2146 of 1958 in the High Court of Judicature at Bombay against the applicants for the grant of a writ in the nature of mandamus under article 226 of the Constitution directing them to cancel the orders contained in the fetters of the Divisional Forest Officer dated March 19 1958 and July 11 1958 and to restrain the appellants from enforcing the said orders
The High Court by its judgment dated January 14 1959 allowed the application of the respondents holding that after coming into force of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees were extinguished but at the same time jagirdars became occupants of the forest lands under section 51b of the said Act and they accordingly became entitled to the trees standing on the forest lands
The High Court held that all the trees standing on the forest lands belonged to the respondents 1 to 11 and the same did not belong to the State Government and consequently the State Government was not entitled to sell the material obtained by cutting the trees
Accordingly the High Court issued an injunction restraining the appellants from preventing the respondents from cutting any species of trees standing in the forest lands in the villages in question and from removing and disposing of the produce thereof
The High Court further held that this order would be without prejudice to the right of the State Government if they had any to reserve any class of trees under section 40 of the Land Revenue Code or under any other law for the time being in force or to impose such restrictions as it may be lawful for them to do under the provisions of the Indian Forest Act and the Rules made thereunder
The present appeal is brought by special leave on behalf of the State of Gujarat and the other appellants against the order of the High Court of Judicature at Bombay in the Special Civil Application No 2146 of 1958
180 The question presented for determination in this case is whether the trees standing in the forest lands of the 39 villages in question belong to the jagirdars respondents 1 to 11 or to the State Government and whether the respondents have a right to cut and remove the trees including the reserved species of trees from the forest lands of these villages
Section 3 of the Bombay Merged Territories and Areas Jagirs Abolition Act 1953 hereinafter to be called the Jagirs Abolition Act states 3
Notwithstanding anything contained in any usage grant sand order agreement or any law for the time being in force on and from the appointed date all jagirs shall be deemed to have been abolished ii save as expressly provided by or under the provisions of this Act the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax cess fee charge or any has and the right of reversion lapse if any vested in a jagirdar and all other rights of a jagirdar or of any person legally subsisting on the said date in respect of a village as incidents of jagir shall be deemed to have been extinguished
 Under section 4 all jagir villages are made liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to unalienated lands are made applicable to such villages
Section 5 1 b provides as follows 5
i In a proprietary jagir village b in the case of land other than Gharkhed land
which is in the actual possession of the jagirdar or in the possession of person other than a permanent holder holding through or from the jagir dar such jagirdar
shall be primarily liable to the State Government for the payment of land revenue due in respect of such land and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force 181 Section 8 of the Jagirs Abolition Act states 8
All public roads
lanes and paths
the bridges
ditches
dikes and fences
on or beside the same
the bed of the sea and of harbouts
creeks below high water mark
and of rivers
streams nalas
lakes
wells and tanks and all canals and water courses
and all standing and flowing water
all unbuilt village site lands
all waste lands and all uncultivated lands excluding lands used for building or other non agricultural purposes which are situate within the limits of any jagir village shall
except in so far as any rights of any person other than the jagirdar may be established in or over the same and except as may otherwise be provided by any law for the time being in force
vest in and shall be deemed to be
with all rights in or over the same or appertaining thereto
the property of the State Government and all rights held by a jagirdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector
subject to the general or special orders of the State Government
to dispose them of as he deems lit
subject always to the rights of way and other rights of the public or of individuals legaliy subsisting
Section 9 reads 9
The rights to trees specially reserved under the 
or any other law for the time being in force
except those the ownership of which has been transferred by the State Government under any contract
grant or law for the time being in force
shall vest in the State Government and nothing in this Act shall in any way affect the right of the State Government to apply the provisions of the 
as in force in the pre Reorganisation State of Bombay
excluding the transferred territories to forests in a Jagir Village
 Section 10 provides as follows 10
Nothing in this Act or any other law for the time being in force
shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or recognised under any contract
grant or law for the time being in force or by custom or usage
 Section 11 provides for compensation to Jagirdars in the manner provided therein
Section 22 of the Jagirs Abolition Act states that any word or expression which is defined in the Code and not defined in the Act shall be deemed to have the meaning given to it in the Code
182 Section 21ii of the Jagirs Abolition Act defines the Code  to mean the Bombay Land Revenue Code 1879 
Section 316 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 a tenant the landlord or superior landlord as the case may be shall be deemed to be occupant
Section 317 defines Occupancy to mean a portion of land held by an occupant
Under section 319 of the Code Occupation means possession
Section 40 of the Bombay Land Revenue Code provides as follows 40
In villages or portions of villages of which the original survey settlement has been completed before the passing of this Act the right of the Government to all trees in unalienated land except trees reserved by the Government or by any survey officer whether by express order made at or about the time of such settlement or under any rule or general order in force at the time of such settlement 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 in the case of settlement completed before the passing of Bombay Act 1 of 1865 this provision shall not apply to teak black wood or sandal wood trees
The right of the Government to such trees shall not be deemed to have been conceded except by clear and express words to that effect
In the ease of villages or portions of villages of which the original survey settlement shall be completed after the passing of this Act the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government or by any survey officer on behalf of the Government either expressly at or about the time of such settlement or generally by notification made and published at any time previous to the completion of the survey settlement of the district in which such village or portion of a village is situate
When permission to occupy land has been or shall hereafter be granted after the completion of the survey settlement of the village or portion of a village in which such land is situate the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be expressly reserved at the time of granting such permission or which may not have been reserved under any of the foregoing provisions of this section at or about the time of the original survey settlement of the said village or portion of a village
Explanation
In the second paragraph of this section the expression In the case of villages or portions of villages of which 183 the original survey settlement shall be completed after the passing of this Act shall include cases where the work of the original survey settlement referred to therein was undertaken before the passing of this Act as well as cases where the work of an original survey settlement may be undertaken at any time after the passing of this Act
 Section 41 states 41
The right to all trees specially reserved under the provision of the last preceding section and to all trees
brushwood jungle or other natural product growing on land set apart for forest reserves under section 32 of Bombay Act I of 1865 or section 38 of this Act
and to all trees brushwood jungle or other natural product wherever growing except in so far as the same may be the property of individuals or of aggregates of individuals capable of holding property vests in the State Government and such trees brushwood jungle or other natural product shall be preserved or disposed of in such manner as the State Government may from time to time direct
 Section 65 states 65
An occupant of land assessed or held for the purpose of agriculture is entitled by himself his servants tenant agents or other legal representatives to erect farm buildings construct wells of tanks or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid
But if any occupant wishes to use his holding or any part thereof for any other purpose the Collector s permission shall in the first place be applied for by the occupant
The Collector on receipt of such application a shall send to the applicant a written acknowledgment of its receipt and b may after due inquiry either grant or refuse permission applied for When any such land is thus permitted to be used for purpose unconnected with agriculture it shall be lawful for Collector subject to the general order of the State Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48
 184 Section 68 states that the occupant s rights are conditional and is to the following effect 68
An occupant is entitled to the use and occupation of his land for the period if any to which his tenure is limited or if the period is unlimited or a survey settlement has been extended to the land in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same according to the provisions 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 or conditions lawfully annexed to his tenure The High Court expressed the view that under section 3 of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees which grew upon them were extinguished
The High Court further held that with the coming into force of the Jagirs Abolition Act jagirdars became the occupants in the forest lands under section 51b of that Act and the respondents 1 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 be reversed
It is manifest that under section 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the jagirdars were extinguished save those rights which are expressly provided by other provisions of the Act itself
It is also manifest that under section 51b of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands
In our opinion the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees from the forest lands
The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants
Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original survey settlement has been completed before the passing of the Act the right of the Government to all trees in unalienated land
except trees reserved by the Government or by any survey officer whether by express order made at or about the time of such settlement or under any rule or general order in force at the time of such settlement or by notification made and published at or at any time after such settlement shall be deemed to have been conceded to the occupant
The second para of section 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act
The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act the right of the Government to all trees in unalienated land shall 185 be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government or by any survey officer on behalf of the Government either expressly at or about the time of such settlement or generally by notification made and published at any time previous to the completion of the survey settlement
The third paragraph of section 40 relates to the concession of Government rights to trees in case of land taken up after completion of settlement
The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been or which shall not hereafter be expressly reserved at the time of granting such permission
In the present case the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government to trees cannot be deemed to be conceded to the occupants of the land
The assumption is implicit in section 40 of the Bombay Land Revenue Code that all the trees standing and growing on the lands with the occupants belong to the State Government and not to the occupants and until there is a survey and settlement of the village the question of concession on the part of the State Government of rights to the trees does not arise
In other words until there is survey and settlement of the land there is no implication in favour of respondents 1 to 11 that they had concession of the rights of the Government to the trees standing on the forest lands
On behalf of the respondents Mr ST Desai referred to section 9 of the Jagirs Abolition Act and stressed the argument that the right of trees mentioned in that section alone vested in the State Government and there was no other reservation in the Act or any other law in favour of the State Government
It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in section 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 section all jagirs shall be deemed to have been abolished on and from the appointed date ie August 1 1954 and all rights of a Jagirdar in respect of a jagir village as incidents of jagir shall be deemed to have been extinguished by virtue of the section unless there is express provision in the Act saving such right
In our opinion section 9 of the jagirs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees and the argument of Mr Desai must be rejected on this point
Our view is supported by the language of section 10 of the Jagirs Abolition Act which expressly saves the right of the jagirdar to mines or mineral products in a jagir village subsisting on the appointed day
There is no provision in the Jagirs Abolition Act corresponding to section 10 with regard to the saving of the right to the trees in favour of the jagirdars
We are accordingly of the opinion that after coming into 186 force of the Jagirs Abolition Act respondents 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question
In our opinion the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question
We accordingly allow this appeal set aside the order of the High Court dated January 14 1959 in Special Civil Application No 2146 of 1958 and order that the Special Civil Application should be dismissed
The appellants are entitled to costs both in this Court and in the High Court
Appeal allowed


Summary:
The first eleven respondents were Jagirdars in a former state which was merged with the State of Bombay in June 1948
In August 1953 these respondents entered into an agreement with respondent No 12 whereby the latter could cut and remove all species of trees from forest lands in 39 villages over which the first eleven respondents claimed full proprietary rights
On August 1 1954 the Bombay Merged Territories and Areas Jagirs Abolition Act 1953 came into force whereby all Jagirs in the merged territories in Bombay State were abolished
Under section 5 of the Act the Jagirdars became occupants  in the lands including forest areas which were then in their possession
On July 6 1956 the State Government issued a notification under section 34A of the Indian Forest Act declaring all uncultivated lands in the 39 villages to be forests for the purposes of Ch
5 of the Act
Thereafter in March and July 1958 the Divisional Forest Officer wrote to the respondents stating inter alia that all the rights of the Jagirdars having been abolished the reserved species of trees on the lands belonged to the State Government and prohibiting them from cutting and removing the trees
The respondents thereupon filed a writ petition seeking a direction to the appellants to cancel and to restrain from enforcing the orders contained in the letters of the Divisional Forest Officer
The High Court allowed the petition mainly on the ground that as the Jagirdars became occupants within the meaning of the Bombay Land Revenue Code of the forest lands under section 51b of the Abolition Act they and not the State Government were entitled to the trees standing on them
In the appeal to the Supreme Court it was further contended on behalf of the respondents that as section 9 of the Act vested some of the rights to trees in forest areas in the State Government by implication all the remaining rights belonged to the Jagirdars
HELD Under section 51b of the Abolition Act the only rights conferred on the Jagirdars were the occupancy rights of the Forest lands under section 40 of the Bombay Revenue Code the rights of occupants did not include the right to cut and remove trees from the forest lands except in the case of villages as which the original survey and settlement has been completed whereupon the Government s rights to the trees unless expressly or otherwise reserved are deemed to have been conceded to the occupant
In the present case the villages in question had admittedly not been surveyed and 178 settled and therefore the rights of the State Government to the trees could not be deemed to have
been conceded to the respondents as occupants
184 E 185 E By section 3 of the Abolition Act all Jagirs and all the rights of a Jagirdar were extinguished unless there was any express provision in the Act saving any right
It could not be said that because section 9 of the Act reserved certain rights to trees of the State Government and by implication the Jagirdars had all the other rights there was an express provision saving the rights of the Jagirdars within the meaning of section 3
185 F H