Case: Thakoreshri Naharsinghji Dolatsinghji and Others Vs. State of Gujarat and Others

All the three sets of appellants in the three appeals were proprietary Jagirdars under Idar State. Survey settlement had been made in that State in the year 1936 and the land revenue payable by the Jagirdars was assessed. In the year 1948 the Land Revenue Code was applied by the province of Bombay to the lands in question under the Extra Provincial Jurisdiction Act. The territory comprising the lands in question was merged in the Bombay State, first by an ordinance promulgated in 1949, followed by the Merged State Lands Act, Bombay Act 6 of 1950. The father of the appellant in Civil Appeal No. 2469, the old Jagirdar, made a settlement of certain land in village Torda with the appellant in this appeal on the 5th of June, 1949. The Survey number of this land in Idar State was 42 but after merger it comprised of two numbers i.e. 42-B and 355. On the Ist of August, 1954 came into force the Jagirs Abolition Act abolishing the Jagirs. According to the case of the appellant he became an occupant of the land together with the forest trees standing thereon. Before 1965 the appellant was allowed to cut and remove the forest trees in his land but after the decision of this Court in Shri U. R. Mavinkurve v. Thakor Madhavsinghji Gambhirsingh and other s the authorities concerned changed their view and took the stand that the forest trees had vested in the State and the appellant was not entitled to cut or remove them. The Divisional Forest Officer intended to sell the trees by a public auction.The appellant set a telegram to him on the 15th of October, 1965 protesting against his proposed action and eventually along with many others filed his Writ Petition in the High Court on the 4th of November, 1965. Some of the Writ Petitioners in the High Court were contractors from the ex-jagirdars. But we are not concerned with their cases. As stated above in these three appeals we are concerned with the land which at one time was in the proprietary Jagir of the Jagirdars of the Idarfacts in these three appeals do not admit of any controversy. The trees were a part of the private forest. Neither it was a reserved forest nor a protected forest within the meaning ofthe Indian Forest Act, 1927.

Reasoning:
On reading these provisions simpliciter one could say that the trees attached to the earth formed part of the land and the appellant became occupant of the land alongwith the trees. Under section 8 of the Jagirs Abolition Act all public roads etc. situate i n Jagir villages vest in the Government. Indisputably the land or the trees in question are not covered by section 8. Under section 9 "the rights to trees specially reserved underthe Indian Forest Act, 1927, or any other law for the time being in force...shall vest in the State Government..........." In the present case neither the rights to trees were specially reserved under the Indian Forest Act nor was it a case where the State Government by any notification in the official gazette had declared any trees or class of trees in a protected forest to be reserved from a date fixed byHigh Court in the present cases has taken too narrow a view of the procedure for survey settlement and when the attention of the learned Judges was drawn to sections 107, 112, 117R and 216 of the Land Revenue Code to press the point that there was a survey settlement in the cases before the High Court the point was rejected on the ground of lack of pleading to that effect. But in the Writ Petitions with which we are concerned in these appeals there was not only a specific averment and it was not specifically denied but documents had been filed along wit h the Writ Petitions to show that there was a survey settlement in the Idar State in the year 1936. That being so, we hold that there being no reservation of the trees in favour of the State, the occupant became entitled to the same on the abolition ofby legal fiction as introduced in section 216(2) the survey settlement should be deemed to have been completed in 1936, which was after the passing of the Land Revenue Code in the year 1879. The alienated lands became unalienated on the abolition of the Jagirs. Therefore, the right to own the trees must be deemed to have been conceded to the occupant of such land as there was no reservation made by the Government or the Surveywe may just note that Mr. Chitley with reference to para 3 of section 40 of the Land Revenue Code argued that on the abolition of the Jagir the occupant was given permission to occupy the land, whether the permission was as a matter of law or in fact is immaterial and such permission shall be deemed to include the concession of the right of the Government to all trees growing on that land. We do not think that reliance on para 3 of section 40 by learned counsel for the appellant is correct. Permission means factual permission and not giving the right to a person as an occupant under section 5(1) (b) of the Jagirs Abolition Act.