{"id":9876,"date":"1959-03-09T00:00:00","date_gmt":"1959-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahadeo-vs-the-state-of-bombayand-connected-on-9-march-1959"},"modified":"2017-09-12T21:06:54","modified_gmt":"2017-09-12T15:36:54","slug":"mahadeo-vs-the-state-of-bombayand-connected-on-9-march-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahadeo-vs-the-state-of-bombayand-connected-on-9-march-1959","title":{"rendered":"Mahadeo vs The State Of Bombay(And Connected … on 9 March, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahadeo vs The State Of Bombay(And Connected … on 9 March, 1959<\/div>\n
Equivalent citations: 1959 AIR 735, \t\t 1959 SCR Supl. (2) 339<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Das, Sudhi Ranjan (Cj), Das, S.K., Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M.<\/div>\n
           PETITIONER:\nMAHADEO\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BOMBAY(and connected petitions)\n\nDATE OF JUDGMENT:\n09\/03\/1959\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, SUDHI RANJAN (CJ)\nDAS, S.K.\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\n\nCITATION:\n 1959 AIR  735\t\t  1959 SCR  Supl. (2) 339\n CITATOR INFO :\n F\t    1962 SC1916\t (4,7)\n R\t    1966 SC1637\t (8)\n R\t    1968 SC1218\t (2)\n R\t    1970 SC 706\t (7)\n D\t    1976 SC1813\t (13)\n E&R\t    1985 SC1293\t (53,112, TO 117,122)\n\n\nACT:\n       Fundamental Rights, Violation of-Agreement with\tProprietors\n       for  grant of right lo pick and carry away tendu leaves\tand\n       other   ancillary   rights-Nature   of\tsuch\trights-Non-\n       Registration  of agreement-Effect-Abolition  of\tProprietary\n       rights in Estates, etc.-Non-recognition of the agreements by\n       State,  if  violates fundamental rights\t-Central  Provinces\n       Land  Revenue Act, 1917 (Central Provinces 11 of 1917),\tSS.\n       2(13),  47(3), 202-Madhya Pradesh Abolition of  Pro-Prietary\n       Rights (Estates, Mahals, Alienated Lands) Act, 1950  (Madhya\n       Pradesh 1 of 1951), ss. 2(6), 3, 4.\n\n\n\nHEADNOTE:\nSome  of  the  proprietors of the  former  State  of  Madhya\nPradesh\t granted to the several petitioners rights  to\ttake\nforest\tproduce,  mainly  tendu\t leaves,  from\tthe  forests\nincluded  in  the Zamindaris belonging to  the\tproprietors.\nThe  agreements conveyed to the petitioners in\taddition  to\nthe tendu leaves other forest produce like timber,  bamboos,\netc., the soil for making bricks, and the right to build  on\nand  occupy land for the purpose of their  business.   These\nrights were spread over many years, but in the case of a few\nthe  period  during  which the agreements  were\t to  operate\nexpired in 1955.  Some of the agreements were registered and\nthe others unregistered.  After the coming into force of the\nMadhya\tPradesh\t Abolition of Proprietary  Rights  (Estates,\nMahals,\t  Alienated   Lands)  Act,  1950,   the\t  Government\ndisclaimed  the agreements and auctioned the rights  afresh,\nacting\tunder s. 3 of the Act under which \" all\t proprietary\nrights\tin an estate ......... in the area specified in\t the\nnotification,  vesting in a proprietor of such\testate......\nor  in\ta person having interest in such  proprietary  right\nthrough\t the proprietor, shall pass from such  proprietor-or\nsuch other person to and vest in the State for the  purposes\nof the State free of all encumbrances\".\nThe  petitioners  filed\t petitions  under  Art.\t 32  of\t the\nConstitution of India challenging the legality of the action\ntaken.\tby  the\t Government on the ground  that\t it  was  an\ninvasion  of their fundamental rights.\tThey  contended\t (1)\nthat  the Government stepped into the shoes of\tthe  quondam\nproprietors  and was bound by the agreements into which\t the\nlatter\thad  entered, before their proprietary\trights\twere\ntaken over by the Government, (2) that the petitioners\twere\nnot  proprietors as defined in the Act and therefore  ss.  3\nand  4 of  the\tAct did not apply to  them,  (3)  that\tthe\nagreements  were in essence and effect licenses\t granted  to\nthem to cut, gather and carry away the produce in the  shape\nof\n340\ntendu  leaves,\tor  lac, or timber or  wood,  (4)  that\t the\nagreements  granted  no 'interest in land ' or\t'benefit  to\narise  out of land' and that object of the agreements  could\nonly be described as sale of goods as defined in the  Indian\nSale  of  Goods\t Act,  and (5)\tthat  the  interest  of\t the\npetitioners  was not proprietary right but only a  right  to\nget goods in the shape of leaves, etc The petitioners relied\non the decision in Firm Chhotabhai jethabai Patel and Co. v.\nThe State of Madhya Pradesh, [1953] S.C.R. 476.\nHeld : (1) that the agreements required registration and  in\nthe absence of it the rights could not be entertained.\nSrimathi  Shantabai v. State of Bombay, [1959]\tS.C.R.\t265,\nfollowed.\n(2)that in cases where the period stipulated in the agree-\nment  had expired, the only remedy, if any, was to  sue\t for\nbreach of contract and no writ to enforce expired agreements\ncould issue. ,\n(3)  that  on  their  true construction\t the  agreements  in\nquestion were not contracts of sale of goods.\n(4)  that  both\t under the Act in question and\tthe  Central\nProvinces  Land Revenue Act, 1917, the forests and trees  in\nthe Zamindari area belonged to the proprietors and they were\nitems  of  proprietary\trights.\t  Consequently,\t the  rights\nconveyed  to  the  petitioners\tunder  the  agreements\twere\nproprietary  rights,  which under ss. 3 and 4 of  the  Act,\nbecame vested in the State.\n(5)that\t assuming that the agreements -did not\tamount\tto\ngrant  of  any proprietary right by the proprietors  to\t the\npetitioners, the latter could have only the benefit of their\nrespective contracts or licenses.  In either case, the State\nhad  not, by the Act, acquired or taken possession  of\tsuch\ncontracts  or licenses and, consequently, there had been  no\ninfringement  of the petitioners' fundamental  rights  which\nalone  could  support  a  petition  under  Art.\t 32 of\tthe\nConstitution.\nChhotabai  jethabai  Patel and Co. v. The  State  of  Madhya\nPradesh, [1953] S.C.R. 476, not followed.\nAnanda\tBehera v. The State of Orissa,<\/a> [1955] 2 S.C.R.\tgig,\nfollowed.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Petitions Nos. 26 and 27 of 1954,  24
\nand 437 of 1955, 256 of 1956, 12, 16, 17 and 73 of 1957.
\nPetition  under Article 32 of the Constitution of India\t for
\nthe enforcement of Fundamental Rights.\n<\/p>\n
M.S. K. Sastri, for the petitioners in Petitions Nos.  26
\nand 27 of 54 and 24 of 1955.\n<\/p>\n
V.N.  Swami and M. S. K. Sastri, for the  petitioners  in
\nPetitions Nos. 437 of 55 and 256 of 56.\n<\/p>\n
341<\/span><\/p>\n
L.K.  Jha,  J.\tM.  Thakur,  S.\t N.  Andley  and  J.   B.
\nDadachanji, for the petitioner in Petition No. 12 of 1957.
\nN.S.  Bindra  and Harbans Singh, for the  petitioners  in
\nPetitions Nos. 16 and 17 of 1957.\n<\/p>\n
N.S. Bindra and Govind Saran Singh, for the petitioner in
\nPetition No. 73 of 1957.\n<\/p>\n
H.   N. Sanyal, Additional Solicitor-General of India,\tH.J.
\nUmrigar\t and R. H. Dhebar, for the respondent  in  Petitions
\nNos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956\t and
\n12 of 1957.\n<\/p>\n
M.Adhikary,  Advocate-General  for the\tState  Of  Madhya
\nPradesh\t and I. N. Shroff, for the respondent  in  Petitions
\nNos. 16, 17 and 73 of 1957.\n<\/p>\n
1959.  March 9. The Judgment of the Court was delivered by
\nHIDAYATULLAH,  J.-The  judgment in Petition No. 12  of\t1957
\nshall  also dispose of petitions Nos. 26 and 27 of 1954,  24
\nand 437 of 1955, 256 of 1956 and 16, 17 and 73 of 1957.
\nThese\tpetitions  under  Art.\t32  arise  out\tof   alleged
\nagreements  by which some of the proprietors in\t the  former
\nState  of  Madhya  Pradesh granted to one or  other  of\t the
\npetitioners  the right to take forest produce, mainly  tendu
\nleaves, from the forests included in Zamindari and Malguzari
\nvillages  of the grantors.  Government has disclaimed  these
\nagreements and auctioned the rights afresh.  The petitioners
\nstate that this is an invasion of their fundamental  rights.
\nThe  dates  on which these alleged agreements  were  entered
\ninto,  the terms thereof and the periods during\t which\tthey
\nwere to subsist are different from case to case.  It is\t not
\nnecessary  in  this judgment to recite the  terms  of  these
\ndocuments, and it is sufficient to group them for purpose of
\ndecision  on  the bases whether the  said  agreements  still
\nsubsist,  and whether they are incorporated in a  registered
\ninstrument or not.\n<\/p>\n
Petitions  Nos. 437 of 1955 and 256 of 1956 are\t founded  on
\nunregistered  documents.  The answering respondent does\t not
\nadmit  these  documents, and contends that  they  cannot  be
\nlooked into to prove their
\n342<\/span>
\nterms,\tin view of the decision of this Court in  Shri-mathi
\nShantabai  v. State of Bombay (1).\n<\/p>\n
Petitions  Nos. 16, 17 and  73 of 1957 form  another  group,
\ninasmuch  as the period during which the alleged  agreements
\nwere   to  operate  expired  in\t 1955.\t Additionally,\t the
\ndocuments on which the ‘claim is founded in those  petitions
\nare unregistered.  In the last mentioned case, it is pleaded
\nthat  the  answering  State Government\thad  recognised\t the
\nagreements in favour of the petitioner but resiled from that
\nposition subsequently, which allegation has been  adequately
\nexplained  by  the State Government in its  affidavit.\t The
\nrecognition  was  not  in favour of the\t petitioner  but  in
\nfavour\tof  one\t Thakur Kamta Singh, who  claimed  under  an
\nagreement  entered  into by one Vishwanath Singh on  a\tdate
\nwhen  he  had  already\ttransferred  his  interest  in\t the
\nZamindari  to  his son Onkar Prasad Singh.  This  point\t was
\ntherefore  not taken before us at the hearing,\tand  nothing
\nmore  Deed  be said about it.  The  main  objection  against
\nthese petitions is that the agreements having expired, there
\nis  nothing  left  to  enforce\teither\tin  favour  of\t the
\npetitioners or against the State Government, and the remedy,
\nif  any, of the petitioners is to sue the State\t and\/or\t the
\nproprietors for the breach.\n<\/p>\n
The last group consists of Petitions Nos. 26 and 27 of 1954,
\n24  of 1955 and the present petition (No. 12 of\t 1957).\t  In
\nthese  petitions,  the agreements with the  petitioners\t are
\nmade by registered documents and the terms during which they
\nare  to\t operate  have yet to expire.  These  cases,  it  is
\nstated,\t fall outside the rule in Shantabai’s case  (1),  to
\nwhich  reference has already been made.\t They are stated  to
\nfall  within  the decision of this Court  reported  in\tFirm
\nChhotabhai  Jethabai  Patel and Co. v. The State  of  Madhya
\nPradesh<\/a> (2).  In all these petitions, counsel argue that the
\nview expressed in the last mentioned case is correct,  while
\nthe  view  in Shantabai’s case (1) needs  further  consider-
\nation.\n<\/p>\n
The  argument of the petitioners in these several  cases  is
\nthat Government steps into the shoes of the
\n(1) [1959] S.C.R. 265..\n<\/p>\n
(2) [1953] S.C.R. 476.\n<\/p>\n
343<\/span><\/p>\n
quondam\t proprietors,  and is bound by the  agreements\tinto
\nwhich  the  latter  had entered,  before  their\t proprietary
\nrights\twere taken over by Government.\tThey also raise\t the
\ncontention  that  the petitioners were\tnot  proprietors  as
\ndefined\t in  the  Madhya Pradesh  Abolition  of\t Proprietary
\nRights\t (Estates,  Mahals,  Alienated\tLands)\t Act,\t1950
\n(hereinafter called the Act), and thus ss. 3 and 4 in  terms
\ndo  not apply to them.\tThese sections, it is contended,  do
\nnot  apply to profit a prendre, which the petitioners  enjoy
\nunder  these  agreements.  In support  of  this\t contention,
\nreference  is  made  to\t the  decision\tof  this  Court\t  in
\nChhotabhai’s   case  (1),  and\tto  the\t definition   of   ‘
\nproprietor’  in\t the Act.  Reference is also  made  to\tsome
\nprovisions  of\tthe C. P. Land Revenue Act to  be  mentioned
\nhereafter,  to prove that the persons on whom the  right  to
\ncollect forest produce was conferred by the proprietors can-
\nnot  be regarded as proprietors even under that Act.   This,
\nin  main,  is the argument in these cases,  and\t even  those
\npetitioners    whose   agreements   are\t  incorporated\t  in
\nunregistered  documents\t or  whose  agreements\thave   since
\nexpired,  adopted  the\tsame line of  argument\tdenying\t the
\nnecessity for registration of such agreements.
\nThe  matter in so far as it relates to the first two  groups
\nis  simple.  It has already been ruled in  Shantabai’s\tcase
\n(2) that if the right be claimed on foot of an\tunregistered
\nagreement,  it\tcannot be entertained. Such  documents\twere
\nexamined from five different angles in that case, and it was
\nheld  that the document-if it conferred a part or  share  in
\nthe proprietary right, or even a right to profit a  prendre-
\nneeded\tregistration to convey the right.  If it  created  a
\nbare  licence, the licence came to an end with the  interest
\nof  the licensors in the forests.  If proprietary right\t was
\notherwise  acquired, it vested in the State, and lastly,  if
\nthe agreements created a purely personal right by  contract,
\nthere  was no deprivation of property, because the  contract
\ndid  not  run  with the land.  Bose,  J.,  who\tdelivered  a
\nseparate  judgment,  also  held\t that  in  the\tabsence\t  of
\nregistration no right was created.\n<\/p>\n
(1) [1953] S.C.R. 476.\n<\/p>\n
(2) [1959] S.C.R. 265.\n<\/p>\n
344<\/span><\/p>\n
In view of the clear pronouncement of this Court, the  first
\ntwo  groups of petitions must fail.  Petitions Nos.  16,  17
\nand  73\t of  1957 also fail for the added  reason  that\t the
\nagreements  having expired, the only remedy, if any,  is  to
\nsue  for breach of contract and no writ to  enforce  expired
\nagreements can issue.\n<\/p>\n
This  brings us to the arguments advanced in the  last\tfour
\npetitions in the third group which were also adopted by\t the
\nother petitioners, whose petitions we have just\t considered.
\nAll these petitioners strongly relied upon Chhotabhai’s case
\n(1).  It is therefore necessary to examine attentively\twhat
\nwas  decided  there.  In that case, it was held\t at  p.\t 483
\nthat:\n<\/p>\n
”  The contracts and agreements appear to be in essence\t and
\neffect\tlicenses granted to the transferees to cut,  gather,
\nand carry away the produce, in the shape of tendu leaves, or
\nlac, or timber, or wood.”\n<\/p>\n
Reference in this behalf was made to a decision of the Privy
\nCouncil in Mohanlal Hargovind of Jubbalpore v.\tCommissioner
\nof Income-tax, Central Provinces and Berar (2), where it was
\nobserved:\n<\/p>\n
” The contracts grant no interest in land and no interest in
\nthe trees or plants themselves.\t They are simply and  solely
\ncontracts giving to the grantees the right to pick and carry
\naway  leaves,  which,  of  course,  implies  the  right\t  to
\nappropriate them as their own property.\n<\/p>\n
The small right of cultivation given in the first of the two
\ncontracts is merely ancillary and is of Do more significance
\nthan would be, e.g., a right to spray a fruit tree given  to
\nthe person who has bought the crop of apples.  The contracts
\nare  short-term contracts.  The picking of the leaves  under
\nthem  has to start at once, or practically at once,  and  to
\nproceed continuously.”\n<\/p>\n
The Bench next observed that there was nothing in the Act to
\naffect the validity of the several contracts and agreements,
\nand  that the petitioners were, neither\t proprietors  within
\nthe meaning of the Act, nor persons having ” any interest in
\nthe  proprietary  right\t through the  proprietors  “.  After
\nquoting from Baden Powell’s
\n(1) [1953] S.C.R. 476.\n<\/p>\n
\t       (2) I.L.R. 1949 Nag. 892, 898,
\n345<\/span>
\nLand  Systems of British India, Vol.  1,p. 217, as  to\twhat
\nwas  meant by ‘ proprietorship’ in the Land Revenue  Systems
\nin  India,  it\twas  observed  that  the  definition  of   ‘
\nproprietor’  in the Act conveyed the same  sense.   Finally,
\nrepelling  the\targument  that the  agreements\tconcerned  ”
\nfuture\tgoods  “, it was held on the basis of a\t passage  in
\nBenjamin on Sale, 8th Edition, page 136, that a present sale
\nof the right to goods having a ” potential existence ” could
\nbe  made.  Since possession was taken under  the  agreements
\nand  consideration had also passed, there could be ” a\tsale
\nof  a present right to the goods as soon as they  come\tinto
\nexistence.”\n<\/p>\n
Reference  was\talso made (at pp. 480, 481) to s. 6  of\t the
\nAct, which provides:\n<\/p>\n
” (1) Except as provided in sub-section (2), the transfer of
\nany  right  in the property which is liable to vest  in\t the
\nState  under  this Act made by the pro-prietor at  any\ttime
\nafter  the  16th  March, 1950, shall, as from  the  date  of
\nvesting, be void.”\n<\/p>\n
It was observed in the case as follows:\n<\/p>\n
”  The\tdate, 16th March, 1950, is probably  the  date\twhen
\nlegislation on these lines was actively thought of, and sub-
\nsection\t (1) hits at transfers made after this\tdate.\tThis
\nmeans that transfers before that date are not to be regarded
\nas void.  Even in the case of transfers after the said date,
\nsub-section  (2) provides that the Deputy  Commissioner\t may
\ndeclare\t that they are not void after the date\tof  vesting,
\nprovided  they were made in good faith and in  the  ordinary
\ncourse of management.\n<\/p>\n
The scheme of the Act as can be gathered from the provisions
\nreferred  to above makes it reasonably clear  that  whatever
\nwas done before 16th March, 1950, by the proprietors by\t way
\nof  transfer of rights is not to be disturbed  or  affected,
\nand that what vests in the State is what the proprietors had
\non the vesting date.  If the proprietor had any rights after
\nthe  date  of  vesting which he could  enforce\tagainst\t the
\ntransferee  such  as a lessee or a  licensee,  those  rights\n<\/p>\n
-would no doubt vest in the State.”\n<\/p>\n
44<\/span>
\n346<\/span><\/p>\n
It was accordingly held that the State Government could\t not
\ninterfere  with\t such agreements but had only the  right  to
\nenforce rights arising therefrom ” standing in the shoes  of
\nthe proprietors.”\n<\/p>\n
It  is clear from the foregoing analysis of the decision  in
\nChhotabhai’s  case  (1)\t that  on  a  construction  of\t the
\ndocuments there under consideration and adopting a principle
\nenunciated  by\tthe Privy Council in Mohanlal  Hargovind  of
\nJubbalpore  v. Commissioner of Incometax, Central  Provinces
\nand Berar (2) and relying upon a passage each in Benjamin on
\nSale  and the wellknown treatise of Baden-Powell, the  Bench
\ncame to the conclusion that the documents there under consi-
\nderation  did  not create any interest in land and  did\t not
\nconstitute  any\t grant of any proprietary  interest  in\t the
\nestate\tbut were merely contracts or licenses given  to\t the
\npetitioners  ” to cut, gather and carry away the produce  in
\nthe shape of tendu leaves, or lac , or timber or wood “. But
\nthen,  it necessarily followed that the Act did not  purport
\nto  affect  the petitioners’ rights under the  contracts  or
\nlicenses.   But what was the nature of those rights  of\t the
\npetitioners  ?\tIt  is\tplain,\tthat  if  they\twere  merely
\ncontractual  rights,  then as pointed out in the  two  later
\ndecisions,  in\tAnanda Behera v. The State  of\tOrissa<\/a>\t(3),
\nShantabai’s  case (4), the State has not acquired  or  taken
\npossession of those rights but has only declined to be bound
\nby  the agreements to which they were not a party.   If,  on
\nthe  other hand, the petitioners were mere  licensees,\tthen
\nalso,  as pointed out in the second of the two cases  cited,
\nthe  licenses came to an end on the extinction of the  title
\nof  the licensors.  In either case there was no question  of
\nthe breach of any fundamental right of the petitioners which
\ncould support the petitions which were presented under\tArt.
\n32  of\tthe Constitution.  It is this aspect of\t the  matter
\nwhich  was not brought to the notice of the Court,  and\t the
\nresulting  omission to advert to it has seriously  impaired,
\nif  not completely nullified, the effect and weight  of\t the
\ndecision in Chhotabhai’s case (1) as a precedent.
\n(1)[1953] S.C.R. 476.\n<\/p>\n
(3)[1955] 2 S.C.R. 265.\n<\/p>\n
(2)  I.L.R. 1949 Nag. 892, 898.\n<\/p>\n
(4)  [1959] S.C.R. 265.\n<\/p>\n
\t\t\t  347<\/span><\/p>\n
The  argument of counsel in these cases followed  the  broad
\npattern\t of  the decision in Chhotabhai’s case (1).  and  we
\nnext  proceed  to consider it.\tIt is  contended  that\twhat
\nvests in the State is the right which the proprietors had on
\nthe  date  of  vesting\tbecause\t s. 3  of  the\tAct  is\t not
\nretrospective, and that the agreements are ” in essence\t and
\neffect\tlicenses granted to the transferees to\tout,  gather
\nand carry away the produce in the shape of tendu leaves,  or
\nlac or timber or wood “. These agreements, it is  submitted,
\ngrant  no  ‘interest in land’ or I benefit to arise  out  of
\nland’, the object of the agreements can only be described as
\nsale of ‘ goods’ as defined in the Indian Sale of Goods Act,
\nand  the  grant of such a right is not comprehended  in\t the
\nfirstsub-section of s. 3 where it says :\n<\/p>\n
” ………all proprietary rights in an estate, mahal in the
\narea specified in the notification, vesting in a  proprietor
\nof such estate, Mahal or in a person having interest in such
\nproprietary  right through the proprietor, shall  pass\tfrom
\nsuch  proprietor  or such other person to and  vest  in\t the
\nState for the purposes of the State free of all encumbrances
\n“.\n<\/p>\n
It  is\tfinally contended that the interest of\tthese  peti-
\ntioners\t is not I proprietary right’ at all but a  right  to
\nget  I goods in the shape of leaves, lac, etc.\tWe  have  to
\nexamine these contentions critically.\n<\/p>\n
Before\twe  do so, it is necessary to set out in  brief\t the
\nterms  of the agreements which have been produced  in  these
\ncases.\t  In  Petition\tNo.  12\t of  1957  there  were\t two
\nagreements,  Annexures\tA and B. The first was\texecuted  in
\n1944 and granted the right from 1947 to 1956; the second was
\nexecuted  in 1946 and granted the right from 1957  to  1966.
\nThese  are  long term agreements and they are  typical\tfrom
\ncase  to case.\tIndeed, the second agreement was  made\teven
\nbefore\tthe first began, and the total period is  20  years.
\nIn  addition to the right to the leaves the  documents\tpro-
\nvided  for  many other matters.\t It is convenient  to  quote
\nonly from Annexure ‘B’:\n<\/p>\n
”  Before  this I had given you a similar  contract  selling
\nTendu leaves produce by contract dated
\n(1)[1953] S-C.R. 476.\n<\/p>\n
348<\/span><\/p>\n
7-7-1944  registered  on 12-7-1944.  In\t pursuance  of\tthat
\nregistered  contract, which is for five years from  1947  to
\n1951 and another for subsequent five years from 1952 to 1956
\nin  all for ten years, you are to remain in  possession\t and
\noccupation  of the areas and the Tendu leaves  produce\ttill
\nthe termination of the year 1956 for which time you continue
\nyour possession and thereafter in pursuance of this contract
\nyou continue for further period of ten years your possession
\nand  occupation from 1957 to 1966 as is usual and  customary
\npruning and coppicing Tendu leaves plants, burning them, and
\ninstal\tFadis for collection of Tendu leaves  and  construct
\nKothas\t(godowns)  for storage of the leaves at\t your  sweet
\nwill  and choice on any open plot or land within the  estate
\nwith  my permission and you are allowed to take free of\t all
\ncosts  any Adjat timber, bamboos, etc., from my forests\t for
\nconstructing   them.\tI  shall  charge  you\tno   further
\nconsideration.\t In  the  same manner, for  the\t purpose  of
\nconstructing these godowns and such thing you may  according
\nto  your  convenience (you may) manufacture  bricks  at\t any
\nplace you like in the vicinity of any rivers, rivulet,\tNala
\nor  pond  at your costs.  I shall not receive-from  you\t any
\nextra amount as rent for the use and occupation of land that
\nwill  be used for construction of Kothas, for  manufacturing
\nbricks\tand  for  locating  Fadis  (Bidi  leaves  collection
\ncentres).  All those are included in the consideration fixed
\nfor  this contract.  All these rights are already  conferred
\non  you\t in the previous contract dated 7-7-1944  and  under
\nthis  contract for the entire contract period.\tIt  is\talso
\nopen  to you to collect Tendu leaves not only those  growing
\nin  the\t summer\t season but also those\tgrowing\t in  Kartik.
\nDuring\tthe  term  of this contract, if for  one  reason  or
\nanother\t it  becomes  necessary for you to  sell  the  Tendu
\nleaves produce and assign this contract to any other  person
\nyou can do so.\tBut you shall be responsible for me to\tgive
\nmy  consent after inquiring of the fitness of  the  intended
\ntransferee.   However, you shall continue to be\t responsible
\nto  pay to me the agreed amount of instalments on or  before
\nthe agreed dates; and if the agreed amount of instalment  is
\nnot paid to me on or
\n\t\t\t    349<\/span>
\nbefore\tthe  agreed date, I shall have full right  to  start
\nproper proceedings in that connection “.
\nIn Petition No. 26 of 1954, the period of the two agreements
\nwas  from 1944 to 1963.\t There too, the rights were  similar
\nto those in Petition No. 12 of 1957, and analogous terms are
\nto be found in Petitions Nos. 27 of 1954 and 24 of 1955.
\nThe  question  that arises is, what is the  nature  of\tthis
\nright?\t In  English  law,  distinction\t was  made   between
\neasements  and\tprofit\ta prendre and a right  to  take\t the
\nproduce\t of  the soil was regarded as a\t profit\t a  prendre.
\nWhile easements were not regarded as an interest in land,  a
\nright to take the produce of the soil or a portion of it was
\nan interest in land: Fitzgerald v. Fairbanks (1).  Profit-a-
\nprendre can be the subject of a grant.\tWhere they take\t the
\nform  of a grant, they are benefits arising from  land.\t  In
\nall  these  cases, there is not a naked right  to  take\t the
\nleaves\tof Tendu trees together with a right of ingress\t and
\nof  regress  from  the\tland;  there  are  further  benefits
\nincluding  the right to occupy the land, to erect  buildings
\nand  to take other forest produce not  necessarily  standing
\ntimber, growing crop or grass.\tThe right of ingress and  of
\nregress over land vesting in the State can only be exercised
\nif  the State as the owner of the land allows it,  and\teven
\napart  from  the essential nature of  the  transaction,\t the
\nState can prohibit it as the owner of the land.
\nWhether\t the right to the leaves can be regarded as a  right
\nto  a  growing\tcrop  has,  however,  to  be  examined\twith
\nreference  to  all the terms of the documents  and  all\t the
\nrights conveyed thereunder.  If the right conveyed comprises
\nmore than the leaves of the trees, it may not be correct  to
\nrefer\tto  it\tas  being  in  respect\tof   growing   crop’
\nsimpliciter.\n<\/p>\n
We  are not concerned with the subtle distinctions  made  in
\nEnglish law between emblements, fructus naturals and fructus
\nindustriales,\tbut   we  have\tto  consider   whether\t the
\ntransaction concerns ” goods ” or “moveable property ” or  ”
\nimmovable  property  “.\t The law is made  difficult  by\t the
\ndefinitions which exist in the General Clauses Act, the Sale
\nof Goods Act, the
\n(1)[1897] 2 Ch. 96.\n<\/p>\n
350<\/span><\/p>\n
Transfer  of Property Act and the Registration\tAct.   These
\ndefinitions  must  be placed alongside one  another  to\t get
\ntheir ambits.\n<\/p>\n
If  the\t definitions are viewed together, it is\t plain\tthat
\nthey  do not tell us what ” immovable property “‘ is.\tThey
\nonly  tell  us\twhat  is either\t included  or  not  included
\ntherein.  One thing is clear, however, that things rooted in
\nthe earth as in the case of trees and shrubs, are  immovable
\nproperty  both\twithin\tthe  General  Clauses  Act  and\t the
\nTransfer  of  Property Act, but in the\tlatter,\t ”  standing
\ntimber\t“, ” growing crop ” and ” grass ” though  rooted  in
\nearth  are not included.  Of these, ” growing crop ”  and  ”
\ngrass  form  the  subjectmatter of the sale  of\t goods,\t and
\nstanding  timber  ”  comes  within  the\t last  part  of\t the
\ndefinition  of ‘ goods’ in the Indian Sale of Goods Act,  to
\nbe subject thereto if the condition about severing mentioned
\nin the definition of ‘ goods’ exists.\n<\/p>\n
It has already been pointed out that the agreements conveyed
\nmore  than  the\t tendu\tleaves\tto  the\t petitioners.\tThey
\nconveyed  other forest produce like timber,  bamboos,  etc.,
\nthe soil for making bricks, the right to prune, coppice\t and
\nburn  tendu trees and the right to build on and occupy\tland
\nfor the purpose of their business.  These rights were spread
\nover many years, and were not so simple as buying leaves, so
\nto speak, in a shop.  The expression ” growing crop ”  might
\nappropriately\tcomprehend  tendu  leaves,  but\t would\t not
\ninclude, Adjat timber’, bamboos, nor even tendu plants.\t The
\npetitioners were not to get leaves from the extant trees but
\nalso  such  trees as might grow in the future.\t They  could
\neven  burn the old trees, presumably, so that  others  might
\ngrow in their place.  In these circumstances, the agreements
\ncannot\t be  said  to  be  contracts  of  sale\tof   ‘goods’
\nsimpliciter.\n<\/p>\n
It remains now to consider whether the rights enjoyed by the
\npetitioners  can be said to fall within s. 3(1) of the\tAct.
\nThat  section divests the proprietors of  their\t proprietary
\nrights,\t as also any other person having an interest in\t the
\nproprietary  right  through the proprietor and\tvests  those
\nrights\tin the State.  That section has to be read with\t the
\nsection which
\n\t\t\t    351<\/span>
\nfollows,  and which sets out the consequences of vesting  of
\nsuch  rights  in the State.  The rights which  vest  can  be
\nstated\tbriefly\t to  be (a) all proprietary  rights  in\t the
\nproprietor,  and  (b) all proprietary rights in\t any  person
\nhaving\tinterest  in  such proprietary\trights\tthrough\t the
\nproprietor.   These  rights vest in the State  free  of\t all
\nencumbrances.\n<\/p>\n
Section\t 4  of the Act provides inter alia  that  after\t the
\nnotification  has  been\t issued,  then,\t ‘   notwithstanding
\nanything contained in any contract, grant or document or  in
\nany  other  law\t for the time being in\tforce  and  save  as
\notherwise  provided in this Act’-the following\tconsequences
\n(among others) shall ensue:\n<\/p>\n
”  (a)\tall  rights,  title  and  interest  vesting  in\t the
\nproprietor or any person having interest in such proprietary
\nright  through\tthe proprietor in such area  including\tLand
\n(cultivable  or\t barren),  grassland,  scrubjungle,  forest,
\ntrees,\tfisheries,  wells,  tanks,  ponds,   water-channels,
\nferries,  pathways, village sites, hats, bazars\t and  melas;
\nand  in all subsoil, including rights, if any, in mines\t and
\nminerals,  whether being worked or not, shall cease  and  be
\nvested\tin the State for purposes of the State free  of\t all
\nencumbrances;  and  the\t mortgage  debt\t or  charge  on\t any
\nproprietary  right  shall  be  a charge\t on  the  amount  of
\ncompensation  payable  for  such proprietary  right  to\t the
\nproprietor under the provisions of this Act;\n<\/p>\n
(b)all\tgrants and confirmation of title of or to land\tin
\nthe  property so vesting or of or to any right or  privilege
\nin  respect  of\t such property or land\trevenue\t in  respect
\nthereof\t  shall,  whether  liable  to  resumption  or\tnot,
\ndetermine: “.\n<\/p>\n
If  these  petitioners\tcan be said to be  possessing  ”  an
\ninterest  in  the proprietary right “,\tthen  their  rights,
\ntitle and interest in the land determine under the Act,\t and
\nvest in the State.  The petitioners, therefore, contend that
\ntheir  rights  under the agreements cannot be  described  as
\n‘proprietary right’ or even a share of it.  They rely on the
\ndefinition  of ‘proprietor’ in the Act, and refer under\t the
\nauthority  of  s. 2(b) of the Act to the  Central  Provinces
\nLand Revenue Act, 1917.\n<\/p>\n
The definition in the Act is not exhaustive.\t It only
\n352<\/span>
\ntells  us  who, besides the proprietor, is included  in\t the
\nterm ‘proprietor’.  Further, the definitions in the Act\t are
\nsubordinate  to\t the  requirements of the  context  and\t the
\nsubject-matter\tof any particular enactment.  From the\tAct,
\nwe  know  that the proprietor’s interest in  forest,  trees,
\nshrub, grass and the like passes to the State.\tThe question
\nthus resolves into two short ones-did the former proprietors
\nown  proprietary interest in these trees, and did they\tpart
\nwith  that  proprietary\t interest  and\tconvey\tit  to\t the
\npetitioners ?\n<\/p>\n
There  is  but\tlittle doubt that in so far as\tthe  Act  is
\nconcerned,  it\tdoes contemplate cesser of  all\t proprietary
\nrights in land, grass land, scrub jungle, forest and  trees,
\nwhether owned by the proprietor or through him by some other
\nperson.\t  The contention of the petitioners is that  by\t the
\nterm  ” proprietor ” is meant what that term conveys in\t the
\nCentral\t Provinces Land Revenue Act, and reference  is\tmade
\nfor  this purpose to various sections therein.\tThe  term  ”
\nproprietor  ”  is  defined in  the  Central  Provinces\tLand
\nRevenue Act thus:\n<\/p>\n
” ” Proprietor ” except in sections 68, 93 and 94,  includes
\na gaontia of a Government village in Sambalpur Territory.”
\nThis definition does not advance the matter any further.  In
\nseveral sections, special explanations are added to define ”\n<\/p>\n
-proprietors  “. In all those explanations, the term is\t not
\ndefined,  but is said to include ‘thekedars or headmen\twith
\nprotected  status’, I mortgagee with possession’, I  lessees
\nholding\t under leases from year to year’ and the  like.\t  In
\naddition,   there  is  invariably  the\tinclusion  of  I   a
\ntransferee  of\tproprietary, rights  in\t possession’,  which
\nagain  leaves the matter at large.  See ss. 2(5), 2(21),  53
\nand 68.\n<\/p>\n
Counsel\t faced with this difficulty rely upon the scheme  of
\nsettlement in Ch.  VI of the Central Provinces Land  Revenue
\nAct-,  and the record of rights which consists of Khewat,  a
\nstatement  of persons possessing proprietary rights  in\t the
\nmahal\tincluding   inferior  proprietors  or\tlessees\t  or
\nmortgagees  in possession, specifying the nature and  extent
\nof  the\t interest  of each; and Khasra\tor  field  book\t and
\nJamabandi or list of persons
\n353<\/span>
\ncultivating   or  occupying  land  in  the  village.   these
\ndocuments  are prepard separately.  The petitioners  contend
\nthat  by ‘proprietary right’ is meant that right  which\t can
\nfind,  a place or be entered in the Khewat, and\t the  rights
\nenjoyed by the petitioners are not and cannot be entered  in
\nthe Khewat because thay are not\t ‘proprietary rights’.\tThey
\nalso  refer  to\t the  schemes  of  settlement  under   which
\nproprietors   subproprietors   etc.,-  are  determined\t and
\noffered assessment.\n<\/p>\n
In  our opinion, these arguments, though attractive, do\t not
\nrepresent  the\twhole of the matter.  What  these  documents
\nrecord and what the settlement operations determine are\t the
\nkinds  of  ‘ proprietors’ among whom the  entire  bundle  of
\nrights is shared.  Every proprietor or sub-proprietor enjoys
\nproprietary rights over land, forests, etc., falling  within
\nhis  interest.\t The  right to forest trees,  etc.,  is\t the
\nconsequence  of proprietorship, and indeed, under  s.  47(3)
\nthe  State Government can declare which rights and  interest
\nmust be regarded as ‘ proprietary rights’.  That sub-section
\nprovides:\n<\/p>\n
” The State Government may declare the rights and  interests
\nwhich shall be deemed to be proprietary rights and interests
\nwithin the meaning of sub-section (2).”\n<\/p>\n
The second sub-section provides:\n<\/p>\n
”  The\tDeputy Commissioner shall cause to be  recorded,  in
\naccordance  with rules made under s. 227, all  changes\tthat
\nhave  taken place in respect of, and all  transactions\tthat
\nhave  affected, any of the proprietary rights and  interests
\nin any land.”\n<\/p>\n
The matter is made clear if one refers to the provisions  of
\ns.  202\t of the Land Revenue Act.  That section\t confers  on
\nGovernment the power to regulate the control and  management
\nof the forest-growth on the lands of any estate or mahal.  A
\nreading of sub-ss. (4) to (8) of that section clearly  shows
\nthat forests belong to the proprietors from whom under those
\nsub-sections  they  can be taken over  for  management,\t the
\nprofits\t of the management less expenses being paid  to\t the
\nproprietors  or to superior and inferior proprietors as\t the
\ncase may be.  Sub-sections (9) and (10) provide
\n45<\/span>
\n354<\/span>
\n(9)” No lease, lien, encumbrance or contract with  respect
\nto  the forest land held under direct manage ment  shall  be
\nbinding upon the Government.\n<\/p>\n
(10)On\tthe expiration of the period fixed for\tthe  direct
\nmanagement,  the  forest  land\tshall  be  restored  to\t the
\nproprietor thereof”\n<\/p>\n
Even here, the term ‘ proprietor’ is explained by the  usual
\nexplanation showing the same category of persons as included
\nin the section.\n<\/p>\n
From this, it is quite clear that forests and trees belonged
\nto  the\t proprietors,  and they were  items  of\t proprietary
\nrights.\t  The  first  of  the two  questions  posed  by\t us,
\ntherefore, admits of none but an affirmative answer.
\nIf then the forest and the trees belonged to the proprietors
\nas  items in their ‘ proprietary rights’, it is quite  clear
\nthat these items-of proprietary rights have been transferred
\nto  the petitioners.  The answer to the second\tquestion  is
\nalso  in the affirmative.  Being a 1 proprietary right’,  it
\nvests  in  the\tState under ss. 3 and 4\t of  the  Act.\t The
\ndecision  in Chhotabhai’s case (1) treated these  rights  as
\nbare licenses, and it was apparently given per incuriam, and
\ncannot therefore befollowed.\n<\/p>\n
Even  assuming that the documents in question do not  amount
\nto grant of any proprietary right by the proprietors to\t the
\npetitioners,  the latter can have only the benefit of  their
\nrespective contracts or licenses.  In either case, the State
\nhas  not, by the Act, acquired or taken possession  of\tsuch
\ncontracts  or licenses and consequently, there has  been  no
\ninfringement  of the petitioners , fundamental\tright  which
\nalone\tcan  support  a\t petition  under  Art.\t32  of\t the
\nConstitution.\n<\/p>\n
The result is that these petitions fail, and are  dismissed,
\nbut in view of the fact that they were filed because of\t the
\ndecision  in Chhotabhai’s case (1), there shall be no  order
\nabout costs.\n<\/p>\n
Petitions dismissed.\n<\/p>\n
(1) [1953] S.C.R. 476.\n<\/p>\n
355<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahadeo vs The State Of Bombay(And Connected … on 9 March, 1959 Equivalent citations: 1959 AIR 735, 1959 SCR Supl. (2) 339 Author: Hidayatullah Bench: Das, Sudhi Ranjan (Cj), Das, S.K., Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M. PETITIONER: MAHADEO Vs. RESPONDENT: THE STATE OF BOMBAY(and connected petitions) DATE OF JUDGMENT: 09\/03\/1959 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-9876","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahadeo vs The State Of Bombay(And Connected ... on 9 March, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahadeo-vs-the-state-of-bombayand-connected-on-9-march-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahadeo vs The State Of Bombay(And Connected ... on 9 March, 1959 - 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