Case: Mahadeo Vs. State of Bombay

of it. They rely on the definition of proprietor in the Act, and refer under the authority of S. 2(b) of the Act to the Central Provinces Land Revenue Act, 1917.22. The definition in the Act is not exhaustive. It only tells us who, besides the proprietor, is included in the term proprietor. Further, the definitions in the Act are subordinate to the requirements of the context and the subject-matter of any particular enactment. From the Act, we know that the proprietors interest in forest, trees, shrub, grass and the like passes to the State. The question thus resolves into two short ones-did the former proprietors own proprietary interest in these trees, and did they part with that proprietary interest and convey it to the petitioners? 23. There is but little doubt that in so far as the Act is concerned, it does contemplate cesser of all proprietary rights in land, grass land, scrub jungle, forest and trees, whether owned by the proprietor or through him by some other person. The contention of the petitioners is that by the term "proprietor" is meant what that term conveys in the Central Provinces Land Revenue Act, and reference is made for this purpose to various sections therein. The term "proprietor" is defined in the Central Provinces Land Revenue Act thus:"Proprietor except in sections 68, 93 and 94, includes a gaontia of a Government village in Sambalpur Territory." This definition does not advance the matter any further. In several sections, special explanations are added to define "proprietors". In all those explanations, the term is not defined, but is said to include thekedars or headmen with protected status, mortgagee with possession, lessees holding under leases from year to year and the like. In addition, there is invariably the inclusion of a transferee of proprietary rights in possession, which again leaves the matter at large. See Ss. 2(5), 2(21), 53 and 68. 24. Counsel faced with this difficulty rely upon the scheme of settlement in Ch. VI of the Central Provinces Land Revenue Act, and the record of rights which consists of Khewat, a statement of persons possessing proprietary rights in the mahal including inferior proprietors or lessees or mortgagees in possession, specifying the nature and extent of the interest of each; and Khasra or field book and Jamabandi or list of persons cultivating or occupying land in the village. These documents are prepared separately. The petitioners contend that by proprietary right is meant that right which can find a place or be entered in the Khewat, and the rights enjoyed by the petitioners are not and cannot be entered in the Khewat because they are not proprietary rights. They also refer to the schemes of settlement under which proprietors, sub-proprietors etc., are determined and offered assessment. 25. In our opinion, these arguments, though attractive, do not represent the whole of the matter. What these documents record and what the settlement operations determine are the kinds of proprietors among whom the entire bundle of rights is shared. Every proprietor or sub-proprietor enjoys proprietary rights over land, forests etc., falling within his interest. The right to forest trees etc., is the consequence of proprietorship, and indeed, under S. 47(3) the State Government can declare which rights and interest must be regarded as proprietary rights. That sub-section provides:"The State Government may declare the rights and interests which shall be deemed to be proprietary rights and interests within the meaning of sub-section (2)." The second sub-section provides: "The Deputy Commissioner shall cause to be recorded, in accordance with rules made under S. 227, all changes that have taken place in respect of, and all transactions that have affected, any of the proprietary rights and interests in any land." 26. The matter is made clear if one refers to the provisions of S. 202 of the Land Revenue Act. That section confers on Government the power to regulate the control and management of the forest-growth on the lands of any estate or mahal. A reading of sub-ss. (4) to (8) of that section clearly shows that forests belong to the proprietors from whom under those sub-sections they can be taken over for management, the profits of the management less expenses being paid to the proprietors or to superior and inferior proprietors as the case may be. Sub-sections (9) and (10) provide: "(9) No lease, lien, encumbrance or contract with respect to the forest land held under direct management shall be binding upon the Government. (10) On the expiration of the period fixed for the direct management, the forest land shall be restored to the proprietor thereof." Even here, the term proprietor is explained by the usual explanation showing the same category of persons as included in the section. 27. From this, it is quite clear that forests and trees belonged to the proprietors, and they were items of proprietary rights. The first of the two questions posed by us, therefore, admits of none but an affirmative answer. 28. If then the forest and the trees belonged to the proprietors as items in their proprietary rights it is quite clear that these items of proprietary rights have been transferred to the petitioners. The answer to the second question is also in the affirmative. Being a proprietary right it vests in the State under Ss. 3 an 4 of the Act. The decision in Chhotabhais case, 1958 SCR 476: (AIR 1953 SC 108 ) treated these rights as bare licenses, and it was apparently given per incuriam, and cannot therefore be followed. 29. Even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners, the latter can have only the benefit of their respective contracts or licenses. In either case, the State has not, by the Act, acquired or taken possession of such contracts or licenses and consequently, there has been no infringement of the petitioners fundamental right which alone can support a petition under Art. 32 of the Constitution.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]10. It is clear from the foregoing analysis of the decision in Chhotabhais case, 1953 SCR 476  : (AIR 1953 SC 108  ), that on a construction of the documents there under consideration and adopting a principle enuncited by the Privy Council in ILR (1949) Nag 892: (AIR 1949 PC 311  ) and relying upon a passage each in Benjamin on Sale and the well-known treatise of Baden-Powell, the Bench came to the conclusion that the documents there under consideration did not create any interest in land and did not constitute any grant of any proprietary interest in the estate but were merely contracts or licences given to the petitioners "to cut, gather and carry away the produce in the shape of tendu leaves, or lac, or timber or wood." But then, it necessarily followed that the Act did not purport to affect the petitioners rights under the contracts or licenses. But what was the nature of those rights of the petitioners? It is plain, that if they were merely contractual rights, then as pointed out in the two later decisions, in Ananda Behera v. The State of Orissa, 1955 2 SCR 919  : ((S) AIR 1956 SC 17  ), Shantabais case, AIR 1958 SC 532  , the State has not acquired or taken possession of those rights but has only declined to be bound by the agreements to which they were not a party. If, on the other hand, the petitioners were mere licensees, then also, as pointed out in the second of the two cases cited, the licenses came to an end on the extinction of the title of the licensers. In either ease there was no question of the breach of any fundamental right of the petitioner which could support the petitions which were presented under Art. 32 of the Constitution. It is this aspect of the matter which was not brought to the notice of the Court, and the resulting omission to advert to it has seriously impaired, if not completely nullified, the effect and weight of the decision in Chhotabhais case, 1953 SCR 476  : (AIR 1953 SC 108  ), is a precedent18.It has already been pointed out that the agreements conveyed more than the tendu leaves to the petitioners. They conveyed other forest produce like timber, bamboos etc., the soil for making bricks, the right to prune, coppice and burn tendu trees and the right to build on and occupy land for the purpose of their business. These rights were spread over many years, and were not so simple as buying leaves so to speak, in a shop. The expression "growing crop" might appropriately comprehead tendu leaves, but would not include Adjat timber, bamboos, nor even tendu plants. The petitioners were not to get leaves from the extant trees but also such trees as might grow in the future. They could even burn the old trees, presumably, so that others might grow in their place. In these circumstances, the agreements cannot be said to be contracts of sale of goods simpliciter22. The definition in the Act is not exhaustive. It only tells us who, besides the proprietor, is included in the term proprietor. Further, the definitions in the Act are subordinate to the requirements of the context and the subject-matter of any particular enactment. From the Act, we know that the proprietors interest in forest, trees, shrub, grass and the like passes to the StateIn our opinion, these arguments, though attractive, do not represent the whole of the matter. What these documents record and what the settlement operations determine are the kinds of proprietors among whom the entire bundle of rights is shared. Every proprietor or sub-proprietor enjoys proprietary rights over land, forests etc., falling within his interest. The right to forest trees etc., is the consequence of proprietorship, and indeed, under S. 47(3) the State Government can declare which rights and interest must be regarded as proprietary rights9. Even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners, the latter can have only the benefit of their respective contracts or licenses. In either case, the State has not, by the Act, acquired or taken possession of such contracts or licenses and consequently, there has been no infringement of the petitioners fundamental right which alone can support a petition under Art. 32 of the Constitution.