Case: Shri U.R. Mavinkurve Vs. Thakor Madhavsinghji Gambhirsingh And Others

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 S. 5 (1) (b) 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 S. 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 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 S. 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 S. 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. 8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to 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 S. 9 of the Act. We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. 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, S. 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 S. 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 S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into 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. 9. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. The High Court expressed the view that under S. 3 of the Jagirs Abolition Act the rights of the jagirdars in the forest land 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 S. 5 (1) (b) of that Act and the respondents 1 to 11 became, 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 S. 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 S. 5 (1) (b) 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 S. 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 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 S. 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 S. 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 lands8. On behalf of the respondents Mr. S. T. Desai referred to S. 9 of the Jagirs Abolition Act and stressed the argument that the right to 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 S. 9 of theAct.We do not accept this argument as correct. Section 3 of the Act provides for abolition for jagirs and under that section all jagirs shall be deemed to have been abolished on and from the appointed date, i. e. 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, S. 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 S. 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 S. 10 with regard to the saving of the rights to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into 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 question9. 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.