SBRI U. R. MA VJNKURVE v. THAKOR MADHA

But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's per· mission shall. in the first place be applied for by the occupant. The Collector, on receipt of such application, (a) shall send to the applicant a written acknowledg ment of its receipt, and (b) may, after due inquiry, either grant or refuse per mission applied for; When any such land is thus permitted to be used for purpose unconnected with agriculture it shall be lawful for Collector, subject to the general order of the State Govern· ment to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48." 184 Ul'REME COURT REPOR'rS [1965] 3 s.c.R. Section 68 states that the occupant's rights are cond; tional, and is A to the following effect: "68. An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settle ment has been extended to the land, in perpetuity con ditionally on the payment of the amounts due on ac, B count of the land revenue for the same, according to the provisions of this Act, or of any rules made under this Act, or of any other law, for the time being force, and on the fulfilment of any other terms or con ditions lawfully annexed to his tenure; .......................................... ; .......... . " c the occupants in The High Court expressed the view that under s. 3 of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees which grew upon them were extingu; shed. The High Court further held that with the coming into force of the Jagirs D Abolition Act jagirdars became the forest lands under s. 5(l)(b) of that Act and the respondents 1 to 11 be come, therefore, entitled to the trees standing on the forest lands. In our opinion, the view expressed by the H;gh Court is erroneous and must be reversed. It is manifest that under s. 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the E jagirdars were extinguished, save those rights wh; ch are expressly provided by other provisions of the Act itself. It is also manifest that under s. 5(l)(b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Re venue Code do not include the right to cut and remove the trees r from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original G survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such set tlement, or under any rule, or general order in force at the time of such settlement, or by not; fication. made and published at, or H at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of s. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall MAVINKl'RVE v. MADHAVSINGHJI (Ramaswami, J.) 185 A be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either express ly at or about the time of such settlement, or generally by notifica tion made and published at any - time previous to the completion of the survey settlement. The third paragraph of s. 40 relates to the B concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permis sion to occupy land has been granted after the completion of the survey settlement of the village, the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been, or which C shall not hereafter be, expressly reserved at the time of granting ''-!Ch permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government (') tre~s cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in s. 40 of the Bombay Land D Revenue Code that all the trees standing and growing on the lands with the occupants belong ta the State Government and not to the o~cup:~nts and until there is a survey and settle; nent of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is sur vey and settlement of the land there is no implic~tion in favour of respc"11ents I ta 11 that they had concession of the rights of Go-;crnmcnt to the trees standing on the forest lands. E On behalf of the respondents Mr. S.T. Desai referred to s. 9 of the Jagirs Abolition Act and stressed the argument that right of trees ment'oned in that section alone vested in the State F Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in s. 9 of the Act. We do not accept th 's argument as correct. Section 3 of the Act provide1 for abolition of jagirs and under that section G all jagirs shall be deemed to have been abolished on and from the appointed date i.e .. August !. 1954 and.all rights of a Jagirdar, in respect of a jagir v'llage as incidents of jagir, shall be deemed to have been extin§!uished by virtue of the section unless there is ex press provision in the Act saving such right. In our opinion, s. 9 of the Ja~'rs Abolition Act is not an express provision saving the right of the jagirdars with regard to the trees and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of s. 10 of the Jagirs Abolition Act which ex pressly saves the right of the jag'rdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no pro vision in th~ Jagirs Abolit'on Act corresponding to s. 10 with re gard to the saving of the right to the trees in favour of the jagir dars. We are accordingly of the opinion that after coming into H 186 SUPREME COURT REPORTS [1966] 3 8.0 . .ll. force of the Jagirs Abolition Act respondents 1 to 11 becam\l oo- A cupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the pr<> visions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest Iaiids of the villages in question. In our opinion, the High Court was in error in holding that the respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question. We ac cordingly allow this appeal, set aside the order of the High Court dated January 14, 1959 in Special Civil .\pplication no. 2146 'of 1958 and order that the Special Civil Application should be dis- c missed. The appellants are entitled to costs both in this Court and in the High Court. B Appeal allowed.