Case: Mahadeo Vs. State of Bombay

1. The judgment in Petition No. 12 of 1957 shall also dispose of Petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956 and 16, 17 and 73 of 19572. These petitions under Art. 32 arise out of alleged agreements by which some of the proprietors in the former State of Madhya Pradesh granted to one or other of the petitioners the right to take forest produce, mainly tendu leaves, from the forests included in Zamindari and Malguzari villages of the grantors. Government has disclaimed these agreements and auctioned the rights afresh. The petitioners state that this is an invasion of their fundamental rights. The dates on which these alleged agreements were entered into the terms therefor and the periods during which they were to subsist are different from case to case. It is not necessary in this judgment to recite the terms of these documents, and it is sufficient to group them for purpose of decision on the basis whether the said agreements still subsist, and whether they are incorporated in a registered instrument or not3. Petitions Nos. 437 of 1955 and 256 of 1956 are founded on unregistered documents. The answering respondent does not admit these documents, and contends that they cannot be looked into to prove their terms, in view of the decision of this Court in Shantabai v. State of Bombay, AIR 1958 SC 532  4. Petitions Nos. 16, 17 and 73 of 1957 from another group, inasmuch as the period during which the alleged agreements were to operate expired in 1955. Additionally, the documents on which the claim is founded in those petitions are unregistered. In the last mentioned ease, it is pleaded that the answering State Government had recognised the agreements in favour of the petitioner but resiled from that position subsequently, which allegation has been adequately explained by the State Government in its, affidavit. The recognition was not in favour of the petitioner but in favour of one Thakur Kamat Singh, who claimed under an agreement entered into by one Viswanath Singh on a date when he had already transferred his interest in the Zamindari to his son, Onkar Prasad Singh. This point was therefore not taken before us at the hearing, and nothing mare need be said about it. The main objection against these petitions is that the agreements having expired, there is nothing left to enforce either in favour of the petitioners or against the State Government, and the remedy, if any, of the, petitioners is to sue the State and/or the proprietors for the breach5. The last group consists of Petitions Nos. 26 and 27 of 1954, 24 of 1955 and the present petition (No. 12 of 1957) In these petitions, the agreements with the petitioners are made by registered documents, and the terms during which they are to operate have yet to expire. These cases, it is stated, fall outside the rule in Shantabais case, AlR 1958 SC 532,   to which reference has already been made. They are stated to fall within the decision of this Court reported in Firm Chhotabhai Jethabai Patel and Co. v. State of Madhya Pradesh, 1953 SCR 476     at pages 480, 481, 483;,(AIR 1953 Sec108 at pages 109, 110. In all these petitions, counsel argue that the view expressed in the last mentioned case is correct, while the view in Shantabais case, AlR 1958 SC 532   needs further considerations.

Reasoning: 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.