# S.C.R SUPREME COURT REPORTS MAHADEO v. THE STATE OF BOMBAY

- **Citation:** [1959] Supp. 2 S.C.R. 339
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. DAs, S. K. J;>As, P. B. Gajendragadkar, K. N. Wanchoo, M. HrnAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-c-r-supreme-court-reports-mahadeo-v-the-state-of-bombay-1657
- **Pages:** 16

## Headnote

Fundamental Rights, Violation of-Agreement with Proprietors
for grant of right to pick and carry away tendu leaves and other
ancillary rights-N aturc of such rights-Non-Registration of agreement-Effect-Abolition of proprietary rights in Estates, etc.-Nonrccognition of the agreements by State, if violates fundamental rights
-Central Provinces Land Revenue Act, r9r7 (Central Provinces II
of r9r7), ss. 2(r3), 47(3), 202-Madhya Pradesh Abolition of Proprietary Rights (Estates, M ahals, Alienated Lands) Act, r950
(Madhya Pradesh I of r95r), ss. 2(6), 3, 4.
Some of the proprietors of the former State of Madhya
Pradesh granted to the several petitioners rights to take forest
produce, mainly tendu leaves, from the forests included in the
Zamindaris belonging to the proprietors. The agreements conveyed to the petitioners in addition to the tendu leaves other
forest produce like timber, bamboo-s, etc., the soil for making
bricks, and the right to build on and occupy land for the purpose
of their business. These rights were spread over many years,
but in the case of a few the period during which the agreements
were to operate expired in 1955· Some of the agreements were
registered and the others unregistered. After the coming into force
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, the Government disclaimed
the agreements and auctioned the rights afresh, acting under
s. 3 of the Act under which "all proprietary rights in an estate
......... in the area specified in the notification, vesting in a proprietor of such estate ...... or in a person having interest in such
proprietary right through the proprietor, shall pass froJU such
proprietor or such other person to and vest in the State for the
purposes of the State free of all encumbrances".
The petitioners filed petitions under Art. 32 of the Constitution of India challenging the legality of the action taken by the
Government on 'the ground that it was an invasion of their
fundamental rights. They contended (1) that the Government
stepped into the shoes of the quondam proprietors and was bound
by the agreements into which the latter had entered, before their
proprietary rights were taken over by the Government, (2) that
the petitioners were not proprietors as defined in the Act and
therefore ss. 3 and 4 of the Act did not apply to them, (3) that
the agreements were in essence and effect licenses granted to
them to cut, gather and carry away the produce in the shape of
I959
March 9.
1959
Mahadeo
v.
The Stnte of
Bombay
340
SUPREME COURT REPORTS [1959] Supp.
tendu leaves, or lac, or timber or wood, (4) that the agreements
granted no 'interest in land' or 'benefit to arise out of land'
and that object of the agreements could only be described as sale
of goods as defined in the Indian Sale of Goods Act, and (5) that
the interest of the petitioners was not proprietary right but only
a right to get goods in the shape of leaves, etc.
The petitioners
relied on the decision in FirmChhotabhai ]ethabai Patel and Co. v.
The State of Madhya Pradesh, [1953] S.C.R. 476.
Held: (1)·that the agreements required registration and in
the absence of it the rights could not be entertained.
Srimathi Shantabai v. State of Bombay, [1959] S.C.R. 265,
followed.
(2) that in cases where the period stipulated in the agreement had expired, the only remedy, if any, was to sue for
breach of contract and no \\'rit to enforce expired agreements
could issue.
(3) that on their. true construction the agreements in question
were not contracts of sale of goods.
(4) that both under the Act in question and the Central
Provinces Land Revenue Act, 1917, the forests and trees in the
Zamindari area belonged to the proprietors and they were items
of proprietary' rights.
Consequently, the rights conveyed to·
the petitioners under the agreements '\Vere proprietary rights,
which under ss. 3 and 4 of the· Act, became vested in the State.
(5) that assuming that the agreements did not am

## Text

(2) S.C.R.. SUPREME COURT REPORTS
MAHADEO
v.
THE STATE OF BOMBAY
(and connected petitions)
339
(S. R. DAs, C. J., S. K. J;>As, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and M. HrnAYATULLAH, JJ.)
Fundamental Rights, Violation of-Agreement with Proprietors
for grant of right to pick and carry away tendu leaves and other
ancillary rights-N aturc of such rights-Non-Registration of agreement-Effect-Abolition of proprietary rights in Estates, etc.-Nonrccognition of the agreements by State, if violates fundamental rights
-Central Provinces Land Revenue Act, r9r7 (Central Provinces II
of r9r7), ss. 2(r3), 47(3), 202-Madhya Pradesh Abolition of Proprietary Rights (Estates, M ahals, Alienated Lands) Act, r950
(Madhya Pradesh I of r95r), ss. 2(6), 3, 4.
Some of the proprietors of the former State of Madhya
Pradesh granted to the several petitioners rights to take forest
produce, mainly tendu leaves, from the forests included in the
Zamindaris belonging to the proprietors. The agreements conveyed to the petitioners in addition to the tendu leaves other
forest produce like timber, bamboo-s, etc., the soil for making
bricks, and the right to build on and occupy land for the purpose
of their business. These rights were spread over many years,
but in the case of a few the period during which the agreements
were to operate expired in 1955· Some of the agreements were
registered and the others unregistered. After the coming into force
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, the Government disclaimed
the agreements and auctioned the rights afresh, acting under
s. 3 of the Act under which "all proprietary rights in an estate
......... in the area specified in the notification, vesting in a proprietor of such estate ...... or in a person having interest in such
proprietary right through the proprietor, shall pass froJU such
proprietor or such other person to and vest in the State for the
purposes of the State free of all encumbrances".
The petitioners filed petitions under Art. 32 of the Constitution of India challenging the legality of the action taken by the
Government on 'the ground that it was an invasion of their
fundamental rights. They contended (1) that the Government
stepped into the shoes of the quondam proprietors and was bound
by the agreements into which the latter had entered, before their
proprietary rights were taken over by the Government, (2) that
the petitioners were not proprietors as defined in the Act and
therefore ss. 3 and 4 of the Act did not apply to them, (3) that
the agreements were in essence and effect licenses granted to
them to cut, gather and carry away the produce in the shape of
I959
March 9.
1959
Mahadeo
v.
The Stnte of
Bombay
340
SUPREME COURT REPORTS [1959] Supp.
tendu leaves, or lac, or timber or wood, (4) that the agreements
granted no 'interest in land' or 'benefit to arise out of land'
and that object of the agreements could only be described as sale
of goods as defined in the Indian Sale of Goods Act, and (5) that
the interest of the petitioners was not proprietary right but only
a right to get goods in the shape of leaves, etc.
The petitioners
relied on the decision in FirmChhotabhai ]ethabai Patel and Co. v.
The State of Madhya Pradesh, [1953] S.C.R. 476.
Held: (1)·that the agreements required registration and in
the absence of it the rights could not be entertained.
Srimathi Shantabai v. State of Bombay, [1959] S.C.R. 265,
followed.
(2) that in cases where the period stipulated in the agreement had expired, the only remedy, if any, was to sue for
breach of contract and no \\'rit to enforce expired agreements
could issue.
(3) that on their. true construction the agreements in question
were not contracts of sale of goods.
(4) that both under the Act in question and the Central
Provinces Land Revenue Act, 1917, the forests and trees in the
Zamindari area belonged to the proprietors and they were items
of proprietary' rights.
Consequently, the rights conveyed to·
the petitioners under the agreements '\Vere proprietary rights,
which under ss. 3 and 4 of the· Act, became vested in the State.
(5) that assuming that the agreements did not amount to
grant of any proprietary right by the proprietors to the petitioners, the latter could have only the benefit of their respective
contracts or licenses. In either case, the State had not, by the
Act, aCquired or taken possession of such contracts or licenses
and, consequently, there had been no infringement of the petitioners' fundamental rights which alone could support a petition
under Art. 32 of the Constitution.
Chhotabai ]ethabai Patel and Co. v. The State of Madhya
Pradesh, [1953] S.C.R. 476, not followed.
~
Ananda Behera v. The State of Orissa, [1955] 2 S.C.R. 919,
followed.
ORIGINAL JURISDICTION: Petitions Nos. 26 and 27
of 1954, 24 and 437 of 1955, 256 of 1956, 12, 16, 17
and 73 of ·1957.
Petition under Article 32 of the Constitution of
India for the enforcement of Fundamental Rights.
Jl,f. S. K.. Sastri, for the petitioners in Petitions Nos.
26 and 27 of 54 aud 24 of 1955.
V. N. Swami and M. S. K.. Sastri, for the petitioners
in Petitions Nos. 437 of 55 and 256 of 56.
(2). S.C.R.
SUPREME COURT REPORTS
341
L. K. Jha, J. M. Thakur, S. N. Andley and J. B.
Dadachanji, for the petitioner in Petition No. 12 of
1957.
N. S. Bindra and Harbans Singh, for the petitioners
in Petitions Nos. 16 and 17of1957.
N. S. Bindra and Govind Saran Singh, for the petitioner in Petition No. 73 of 1957.
H. N. Sanyal, Additional Solicitor-General of India,
H.J. Umrigar and R. H. Dhebar, for the respondent
in Petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955,
256 of 1956 and 12 of 1957.
M. Adhikary, Advocate-General for the State of
Madhya Pradesh and J. N. Shroff, for the respondent
in Petitions Nos. 16, 17 and 73 of 1957.
1959. March 9.
The Judgment of the Court was
delivered by
1
I959
Mahadeo
v.
The State of
Bombay
HrnAYATULLAH, J.-The judgment in Petition Hidayatullah ].
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 1957.
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 thereof 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 bases whether the said
agreements still subsist, and whether they are incor-
•· ·
porated in a registered instrument or not.
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 tb.eir
I959
Mahadeo
v.
The State of
Bombay
Elidayatullah ] .
342
SUPREME COURT REPORTS [1959] Supp.
terms, in view of the decision of this Court in "Shrimathi Shantabai v. State of Bombay (1).
.
Petitions Nos. 16, 17 and 73 of 1957 form 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 case, 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 Kamta
Singh, who claimed under an agreement entered into
by one Vishwanath 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 more
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 breach.
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 Shantabai's case (1), to which reference has already
been made. They are stated to fall within the decision of this Court reported in l!'irm Ghhotabhai J ethabai Patel and Go. v. The State of Madhya Pradesh (').
In all these petitions, counsel argue that the view
expressed in the last mentioned case is correct, while
the view in Shantabai' s case (1) needs further consideration.
The argument of the petitioners in these several
cases is that Government steps into the shoes of the
(1) [1959] S.C.R. 265.
(2) (1953] S.C.R. 476.
(2) S.C.R.
SUPREME COURT R.EPORTS
343
quondam proprietors, and is bound by the agreements
into which the latter had entered, before their proprietary rights were taken over by Government. They
also raise the contention that the petitioners were not
proprietors as defined in the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated
Lands) Act, 1950 (hereinafter called the Act), and thus
ss. 3 and 4 in terms do not apply to them. These
sections, it is contended, do not apply to profit a
prendre, which the petitioners enjoy under these
agreements. In support of this contention, reference
is made to the decision of this Court in Ohhotabhai's
case (1), and to the definition of' proprietor' in the
Act.
Reference is also made to some provisions of the
C. P. Land Revenue Act to be mentioned hereafter, to
prove that the persons on whom the right to collect
forest produce was conferred by the proprietors cannot be regarded as proprietors even under that Act.
This, in main, is the argument in these cases, and
even those petitioners whose agreements are incorporated in unregistered documents or whose agreements
have since expired, adopted the same line of argument denying the necessity for registration of such
agreements.
·
The matter in so far as it relates to the first two
groups is simple.
It has already been ruled in
Shantabai's case (2) that if the right be claimed on foot
of an unregistered agreement, it cannot be entertained. Such documents were examined from five different angles in that case, and it was held that the
document-if it conferred a part or share in the proprietary right, or even a right to profit a prendreneeded registration to convey the right. If it created
a bare licence, the licence came to an end with the
interest of the licensors in the forests. If proprietary
right was otherwise acquired, it vested in the State,
and lastly, if the agreements created a purely personal
right by contract, there was no deprivation of property, because the contract did not run with the land.
Bose, J., who delivered a separate judgment, also held
that in the absence of registration no right was created.
(1) [1953] S.C.R, 476.
(2) [1959] S.C.R. 265.
I959
Mahadeo
v.
The Slate of
Bombay
Hidayatullah ].
1959
Mahadeo
v.
The State of
Bombay
Hidayatullah f:
944
SUPREME COURT REPORTS [1959] Supp.
In view of the clear pronouncement of this Court,
the first two groups of petitions must fail.
Petitions
Nos. 16, 17 and 73 of 1957 also fail for the added reason that the agreements having expired, the only
remedy, if any, is to sue for breach 'of contract and no
writ to enforce expired agreements can issue.
This brings us to the arguments advanced in the
last four petitions in the third group which were also
adopted by the other petitioners, whose petitions we
have just considered.
All these petitioners strongly
relied upon Chhotabhai's case (1). It is therefore
necessary to examine attentively what was decided
there. In that case, it was held at p. 483 that:
"The contracts and agreements appear to be in
essence and effect licenses gra.nted to the transferees
to cut, gather, and carry away the produce in the
shape of tendu leaves, or lac, or timber, or wood."
Reference in this behalf was made to a decision of the
Privy Council in Mohanl.al Hargovind of Jubbalpore v.
Commissioner of Income-tax, Central Provinces and
Berar ('), where it was observed:
"The contracts grant no interest in land and no
interest in the trees or plants themselves. They are
simply and solely contracts giving to the grantees the
right to pick and c1trry away leaves, which, of course,
implies the right to appropriate them as their own
property.
The small right of cultivation given in the first of
the two contracts is merely ancillary and is of no
more significance than would be, e.g., a right to spray
a fruit tree given to the person who has bought the
crop of apples.
The contracts are short-term contracts. The picking of the leaves under them has to
start at once, or practically at once, and to proceed
continuously."
The Bench next observed that there was nothing in
the Act to affect the validity of the several contracts
and agreements, and that the petitioners were neither
proprietors within the meaning of the Act, nor persons
having "any interest in the proprietary right through
the proprietors".
After quoting from Baden Powell's
(1) (1953] S.C.R. 476.
(2) I.L.R. 1949 Nag. 892, 898.
(2) S.C.R.
SUPREME COURT REPORTS
345
Land Systems of British India, Vol. I, p. 217, as to
what was meant by 'proprietorship' in the Land
Revenue Systems in India, it was observed that the
definition of 'proprietor' in the Act conveyed the
same sense.
Finally, repelling the argument that the
agreements concerned " future goods '', it was held on
the basis of a passage in Benjamin on Sale, 8th Edition, page 136, that a present sale of the right to
goods having a "potential existence" could be made.
Since possession was taken under the agreements and
consideration had also passed, there could be "a sale
of a present right to the goods as soon as they come
into existence."
Reference was also made (at pp. 480, 481) to s. 6 of
the Act, which provides:
.
"(1) Except as provided in sub-section (2), the
transfer of any right in the property which is liable
to vest in the State under this Act made by the proprietor at any time after the 16th March, 1950, shall,
as from the date of vesting, be void."
It was observed in the case as follows:
"The date, 16th March, 1950, is probably the
date when legislation on these lines was actively
thought of, and sub-section (1) hits at transfers made
after this date. This means that transfers before that
date are not to be regarded as void. Even in the case
of transfers after the said date, sub-section (2) provides that the Deputy Commissioner may declare that
they are not void after the date of vesting, provided·
they were made in good faith and in the ordinary
course of management.
The scheme of the Act as can be gathered from
the provisions referred to above makes it reasonably
clear that whatever was done before 16th March, 1950,
by the proprietors by way of transfer of rights is not
to be disturbed or affected, and that what vests in the
State is what the proprietors had on the vesting date.
If the proprietor had any rights after the date of vesting which he could enforce against the transferee such
a.s a. lessee or a licensee, those rights would no doubt
vest in the State."
44
I959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
r959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
346
SUPREME COURT REPORTS [1959] Supp.
It was accordingly held that the State Government
could not interfere with such agreements but had only
the right to enforce rights arising therefrom "standing in the shoes of the proprietors."
It is clear from the foregoing analysis of the decision in Chhotabhai's case (') that on a construction of the
documents there under consideration and itdopting a
principle enunciated by the Privy Council in M ohan"lal
Hargovind of Jubbalpore v. Commissioner of Incometax, Central Provinces and Berar (') and relying upon
a passage each in Benjamin on Sale and the wellknown 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 licenses 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 CO):ltractual rights, then as
pointed out in the two later decisions, in Ananda
Behera v. The State of Orissa ('), Shantabai's case('),
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 licensors. In either case there was no question
of the breach of any fundamental right of the petitioners 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
Chhotabhai's case(') as a precedent.
(1) [1953] S.C.R. 476.
(3) [1955] 2 S.C.R. 919.
(2) I.L.R. 1949 Nag. 89>, 898.
(4) [1959] S.C.R. 265.
.•
(2) S.C.R. SUPREME COURT REPORTS
347
The argument of counsel in these cases followed the
broad pattern of the decision in Ohhotabhai's case (1),
and we next proceed to consider it. H is contended
that what vests in the State is the right which the
proprietors had on the date of vesting because s. 3 of
the Act is not retrospective, and that the agreements
are " in essence and effect licenses granted to the
transferees to cut, gather and carry away the produce
in the shape of tendu leaves, or lac, or timber or
wood". These agreements, it is submitted, grant no
'interest in land ' or ' benefit to arise out of land', the
object of the agreements can only be described as sale
of' goods ' as defined in the Indian Sale of Goods Act,
and the grant of such a. right is not comprehended in
the first sub-section of s. 3 where it says:
" ............ all proprietary rights in an estate,
mahal.. ...... .in the area specified in the notification,
vesting in a proprietor of such estate, Mahal.. .... or in
a person having interest in such proprietary right
through the proprietor, shall pass from such proprietor
or such other person to and vest in the State for the
purposes of the State free of all encumbrances".
It is finally contended that the interest of these petitioners is not ' proprietary right ' at all but a right to
get' goods ' in the shape of leaves, lac, etc. We have
to examine these contentions critically.
Before we do so, it is necessary to set out in brief the
terms of the agreements which have been produced in
these cases. In Petition No. 12 of 1957 there were
two agreements, Annexures A and B. The first was
executed in 1944 and granted the right from 1947 to
1956; the second was executed in 1946 and granted
the right from 1957 to 1966. These are long term
agreements and they are typical from case to case.
Indeed, the second agreement was made even before
the first began, and the total period is 20 years. · In
addition to the right to the leaves the documents provided for many other matters. It is convenient to
quote only from Annexure ' B ' :
"Before this I had given you a similar contract
selling Tendu leaves produce by contract dated
(1) [1953] S.C.R. 476.
I959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
I959
Alahadeo
v.
The State of
Bombay
Iiidayatullah ].
348
SUPREME COURT REPORTS
[1959] Supp.
7-7-1944 registered on 12-7-1944. In pursuance of
that registered contract, which is for five years from
1947 to 1951 and another for subsequent five years
from 1952 to 1956 in all for ten years, you are
to remain in possess10n and occupation of the areas
and the Tendu leaves produce till the termination of
the year 1956 for which time you continue your possession and thereafter in pursuance of this contract you
continue for further period of ten years your possession
and occupation from 1957 to 1966 as is usual and
customary pruning and coppicing Tendu leaves plants,
burning them, and instal Fadis for collection of Tendu
leaves and construct Kothas (godo"wns) for storage of
the leaves at your sweet will and choice on any open
plot or land within the estate with my permission and
you are allowed to take free of all costs any Adjat
timber, bamboos, etc., from my forests for constructing
them. I shall charge you no further consideration.
In the same manner, for the purpose of constructing
these godowns and such thing you may according to
your convenience (you may) manufacture bricks at
any place you like in the vicinity of any rivers, rivulet,
N ala or pond at your costs. I shall not receive from
you any extra amount as rent for the use and occupation of land that will be used for construction of
Kothas, for manufacturing bricks and for locating
Fadis (Bidi leaves collection centres).
All those are
included in the consideration fixed for this contract.
All these rights are already conferred on you in the
previous contract dated 7-7-1944 and under this contract for the entire contract period. It is also open to
you to collect Tendu leaves not only those growing in
the summer season but also those growing in Kartik.
During the term of this contract, if for one reason or
another it becomes necessary for you to sell the Tendu
leaves produce and assign this contract to any •other
person you can do so.
But you shall be responsible
for me to give my consent after inquiring of the fitness
of the intended transferee. However, you shall continue
to be responsible to pay to me the agreed amount of
instalments on or before the agreed dates ; and if the
agreed amount of instalment is not paid to me on or
•.
(2) S.C:R. SUPREME COURT REPORTS
349
before the agreed date, I shall have full right to start
proper proceedings in that connection".
In Petition No. 26 of 1954, the period of the two
agreements was from 1944 to 1963. There too, the
rights were similar to those in Petition No. 12 of 1957,
and analogous terms are to be found in Petitions Nos.
27 of 1954 and 24 of 1955.
The question that arises is, what is the nature of this
right? In English law, distinction was made between
easements. and profit a prendre and a right to take the
produce of the soil was regarded as a profit a prendre.
While easements were not regarded as an interest in
land, a right to take the produce of the soil or a portion of it was an interest in land: Fitzgerald v. Fairbanks (1). Profit-a-prendre can be the subject of a grant.
Where they take the form of a grant, they are benefits
arising from land. In all these cases, there is not· a
naked right to take the leaves of Tendu trees together
with a right of ingress and of regress from the land;
there are further benefits including the right to occupy
the land, to erect buildings and to take other forest
produce not necessarily standing timber, growing crop
or grass. The right of ingress and of regress over land
vesting in the State can only be exercised if the State
as the owner of the land allows it, and even apart from
the essential nature of the transaction, the State can
prohibit it as the owner of the land.
Whether the right to the leaves can be regarded as
a rig_ht to a growing crop has, however, to be efamined
with reference to all the terms of the documents and
all the rights conveyed thereunder. If the right conveyed comprises more than the leaves of the trees, it
may not be correct to refer to it as being in respect of
'growing crop ' simpliciter.
We are not concerned with the subtle distinctions
made in English law between emblements, fructus
naturals and fmctus industriales, but we have to consider whether the transaction concerns "goods" or
"moveable property" ol"" immovable property ".-The
law is ma.de difficult by the definitions which exist in
the General Clauses Act, the Sale of Goods Act, the
(I) [1897] 2 Ch. 96.
1959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
'959
ll1 ahadeo
v.
The State of
Bo1nbay
Hidayatullah j.
350
SUPREME COURT REPORTS [1959] Supp.
Transfer of Property Act and the Registration Act.
These definitions must be placed alongside one another
to get their ambits.
If the definitions are viewed together, it is plain that
they do not tell us what "immovable property" is.
They only tell us what is either included or not included therein. One thing is clear, however, that things
rooted in the earth as in the case of trees and shrubs,
are immovable property both within the General
Clauses Act and the Transfer of Property Act, but in
the latter, "standing timber"," growing crop,, and
" grass" though rooted in earth are not included. Of
these, " growing crop " and " grass " form the subjectmatter of the sale of goods, and " standing timber"
comes within the last part of the definition of ' goods '
in the Indian Sale of Goods Act, to be subject thereto
if the condition about severing mentioned in the definition of' goods' exists.
·
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 comprehend 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, presmnably, so that others might grow in their place. In
these circumstances, the agreements cannot be said to
be contracts of sale of' goods' simpliciter.
It remains now to consider whether the rights enjoyed by the petitioners can be said to fall within
s. 3(1) of the Act. That section divests the proprietors
of their proprietary rights, as also any other person
having an interest in the proprietary right through
the proprietor and vests those rights in the State.
That section has to be read with the section which
(2) S.C.R. SUPREME COURT REPORTS
351
follows, and which sets out the consequences of vesting
of such rights in the State. The rights which vest can
be stated briefly to be (a) all proprietary rights in the
proprietor, and (b) all proprietary rights in any person
having interest in such proprietary rights through the
proprietor. These rights vest in the State free of all
encumbrances.
Section 4 of the Act provides inter alia that after
the notification has been issued, then, 'notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force
and save as otherwise provided in this Act'-the
following consequences (among others) shall ensue:
" (a) all rights, title and interest vesting in the
proprietor or any person having interest in su·ch proprietary right through the proprietor in such area
including Land (cultivable or barren), grassland, scrubjungle, forest, trees, fisheries, wells, tanks, ponds,
water-channels, ferries, pathways, village sites, hats,
bazars and melas ; and in all subsoil, including rights,
if any, in mines and minerals, whether being worked
or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; and the
mortgage debt or charge on any proprietary right
shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under
the provisions of this Act ;
(b) all grants and confirmation of title of or to land
in the property so vesting or of or to any right or privilege in respect of such property or land revenue in
respect thereof shall, whether liable to resumption or
not, determine : ".
If these petitioners can be said to be possessing " an
interest in the proprietary right '', then their rights,
title and interest in the land determine under the Act,
and vest in the State. The petitioners, therefore, contend that their rights under the agreements cannot be
described as ' proprietary right ' or even a share 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.
The definition in the Act is not exhaustive. It only
I959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
r959
Mahadeo
v.
The State of
Bombay
Hidayatullah ] ,
352
SUPREME COURT REPORTS [1959] Supp.
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 proprietor's interest in
forest, trees, shrub, grass and the like passes to the
State. The question th us 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 ?
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 th rough 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.
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
(~) S.C.R.
SUPR~ME COURT R~:Po:RTS
353 ·
cultivating or occupying land in the village.
These
documents are prepard 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 thay
are not' proprietary rights'. They also refer to the
schemes of settlement under which' proprietors',' subproprietors ', etc., are determined and offered assessment.
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 whorn
the entire bundle of rights is shared. Every proprietor or sub-proprietor enjoys proprietary rights oTir
land, forests, etc., falling within his interest. The right
to forest trees, etc., is the qonsequence 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 ca urn 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."
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 expen~es being paid to the proprietors or to superior and inferior proprietors as the
case may be. Sub-sections (9) and (10) provide;
~
.
Mahadeo
v.
The State of
Bombay
Hidayatullah J.
1959
Mahadeo
v.
The State of
Bombay
Hidayatullah ].
354
SUPREME COURT REPOR1'S t1959j Supp.
(9) "No lease, lien, encumbrance or contract with
respect to the forest land held under direct manage -
ment shall be binding upon the Government.
(10) On the expiration of the period fixed for th~
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.
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.
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. Tlie answer to
the second question is also in the affirmative. Being
a 'proprietary right ', it vests in the State under ss. 3
and 4 of the Act. The decision in Chhotabhai's case (1)
treated these rights as bare licenses, and it was apparently given per incuriam, and cannot therefore be
followed.
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 benefi£ 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.
The result is that these petitions fail, and are dismissed, but in view of the fact -that they were filed
because of the .decision in Chhotabhai's case (1), there
shall be no order about costs.
Petitions dismissed.
(1) [1953] S.C.R. 476.