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PETITIONER: DIVISIONAL FOREST OFFICER, HIMACHAL PRADESH ANR.

       Vs.

RESPONDENT: SHRI DAUT & ORS.

DATE OF JUDGMENT: 30/10/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHAH, J.C. SHELAT, J.M.

CITATION:  1968 AIR  612            1968 SCR  (2) 112

ACT: Himachal  Pradesh  Abolition of Big Landed  Estates  &  Land Reforms  Act,  1953  s.  11-Expression  "right,  title   and interest of  the land-owner in the land"--If includes  trees on the land.

HEADNOTE: Upon an application filed by a cultivating tenant M under s. 11  of the Himachal Pradesh Abolition of Big Landed  Estates and  Land Reforms Act, 1953, the Compensation  Officer  held that  as such tenant he was entitled to acquire "the  right, title  and interest" of the owner of the land  in  question. After  payment  by  the tenant of  a  specified   amount  of compensation, a certificate of ownership was granted to  him and, after his death, the land was mutated in favour of  his wife and daughter, respondents in this appeal.     The respondents applied to the Divisional Forest Officer for permission to sell the trees of their land and  although that  Officer granted permission for the sale, he failed  to give  the necessary orders for felling the trees and  taking out  the  converted timber from the land.   The  respondents filed a petition under Art. 226 of the Constitution for  the issue of a writ of mandamus directing the Divisional  Forest Officer  to issue or get issued the necessary permission for felling  the  trees  and moving the  timber.   The  Judicial Commissioner,   following   Vijay   Kumari   Thakur   v.H.P. Administration.   A.I.R.  1961  H.P.  32,  held   that   the appellants   were   estopped  from   contending   that   the respondents  had  no interest in the trees and  allowed  the petition.     In  appeal  to  the Supreme Court it  was  contended  on behalf  of  the appellants that under s. 11 of the  Act  the trees  did  not  vest in the deceased tenant  but  only  the ’land’  as  defend  in  s. 2(5) of the  Act,  and  that  the Compensation  Officer  was not competent to  grant  and,  in fact,  did not grant proprietary rights in the trees to  the deceased tenant. HELD  : dismissing the appeal:     Under sub-s. (6) of s. 11, the tenant becomes the  owner of the land comprised in the tenancy on and from the date of gram  of the certificate, and it is expressly provided  that

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the right,  title and interest of the landowner in the  said land  shall determine.  In the context the word  ’owner’  is very  comprehensive and implies that all rights,  title  and interest of the land-owner passed to the tenant.  [116E-F]     Furthermore, the expression "right,  title and  interest of  the  landowner in the land" is wide  enough  to  include trees  standing on the land. Under s. 8 of the  Transfer  of Property  Act, unless a different intention is expressed  or implied,  transfer of land would include trees  standing  on it;  and  s.  11  of the Himachal  Pradesh   Act  should  be construed in the same manner. [115 E]     Achhru Mal v. Maula Bakhsh, (1924) 5 Lah. 385 and  Nasib Singh v. Amin Chand, A,I.R. 1942 Lah. 152, distinguished. Kaju Mal v. Salig Ram, [1919] Punj. Rec. 237, referred to. 113

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 128 of 1965.     Appeal  from the judgment and decree dated December  12, 1963 of the Judicial Commissioner’s court, Himachal Pradesh, in Civil Writ Petition No. 19 of 1963.     Vikram   Chand  Mahajan  and  R.N.  Sachthey,  for   the appellants. Rameshwar Nath and Mahinder Narain, for respondents. The Judgment of the Court was delivered by     Sikri,  J.  This appeal by certificate  granted  by  the Judicial Commissioner, Himachal Pradesh, is directed against his  judgment allowing a petition filed by  the  respondents and  issuing  a writ of mandamus  directing  the  Divisional Forest  Officer.  Sarahan  Forest Division,  and  the  Chief Conservator  of  Forests,  Himachal  Pradesh   --hereinafter referred  to as the appellants--to issue or get  issued  the necessary  permission for felling the trees and the  transit pass. in respect of certain khasra numbers.     In order to appreciate. the points raised by the learned counsel  for the appellants, it is necessary to set out  the relevant  facts.  Land  measuring 27 bighas  and  16  biswas comprised  in khasra Nos. 452/1,453, 453/1, 40, 100 and  440 and  situated  in village Kadiali,  Tehsil  Theog,  District Mahasu, belonged to Government and was under the tenancy  of Moti  Ram.   He  filed an application under  s.  11  of  the Himachal  Pradesh Abolition of Big Landed Estates  and  Land Reforms  Act, 1953--hereinafter referred to as the  Act--and was   granted  proprietary  rights  in  the  land   by   the Compensation  Officer  by  order  dated  August  30,   1957. Provisional  compensation was assessed at Rs. 62.56 nP.  The Compensation  Officer  held  that "as  the  applicant  is  a cultivating tenant over the aforesaid land he is entitled to acquire right, title and interest of the said land-owner  on payment  of  Rs.  62.56  as  compensation  which  should  be deposited."    On  September  9,  1957,  a  certificate   of ownership  was  granted to Moti Ram on  his  depositing  Rs. 62.56.  Moti Ram died and the land was mutated in favour  of his  wife  Smt.  Besroo and his  daughter  Smt.  Rupi.   The respondents  applied  for permission to sell  the  trees  on their land, and the Divisional Forest Officer by order dated July  18, 1958, permitted them to sell the trees from  their land  on  certain conditions.  On November  15,  1958,   the respondents  deposited Rs. 1267.13 nP as government fee, but the  Divisional  Forest Officer failed to give clear  orders for  felling the trees and taking out the  converted  timber from  the  said  ]and.  The Chief  Conservator  Officer,  by letter  dated July 12, 1961, informed the  respondents  that

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the matter was being inquired from the Conservator of 114 Forests,  Simla  Circle.  Thereupon,  not  hearing  anything further, the respondents flied a petition under Art. 226  of the Constitution. It was urged before the Judicial Commissioner, on behalf  of the  Divisional Forest Officer that the respondents had  no. interest  in the trees standing on their land as. the  trees were  not ’land’ as defined in s. 2(5) of the Act, and  that the Compensation Officer was not competent to grant, and, in fact,  did not grant proprietary rights in the trees to  the deceased  Moti  Ram.   The  learned  Judicial  Commissioner, following  Vijay Kumari Thakur v.  H.  P. Administration (1) held that the appellants were estopped from contending  that the  respondents had no interest in the trees.   He  further held  that the respondents were granted permission  to  sell the  trees  standing on their land and they  had,  in  fact, entered into an agreement to sell to a third party, and they had  deposited Rs. 1267.13 nP and had ’thus acted  to  their detriment.   As   stated  already,  the   learned   Judicial Commissioner  allowed  the  petition and issued  a  writ  of mandamus.    With  certificate  granted  by   the   Judicial Commissioner the appellants have. flied this appeal.     The  learned  counsel for the appellants  contends  that under  s.  11  of  the Act the trees did  not  vest  in  the deceased Moti Ram.  He says that what vested under s. 11  of the  Act  was land, and ’land’ is defined in s. 2 ( 5  )  as follows:                      "S. 2(3).--Land means land which is not               occupied as the site of any building in a town               or  village and is occupied or has.  been  let               for  agricultural  purposes  or  for  purposes               subservient to agriculture,  or  for  pasture,               and includes---                   (a)  the  sites  of  buildings  and  other               structures on such land;.                   (b) orchards;                   (c) ghasnies;" He  relies  on a number of decisions of  the  Punjab   Chief Court  and  the  Lahore High Court  interpreting  a  similar definition  existing  in the Punjab Alienation of  Land  Act (XIII   of   1900).   In  our  opinion   those   cases   are distinguishable  inasmuch  as they deal  with  the  question whether  trees  could be sold or assigned under  the  Punjab Alienation  of Land Act without infringing the  prohibitions contained   in   that  Act  forbidding  sale  of   land   by agriculturists   in  favour  of   non-agriculturists.    For instance, in Achhru Mal v. Maula Bakhsh(2), under a deed  of sale  the  vendee was entitled to cut and remove  the  trees within  a period of ten years, and the plaintiff  brought  a suit asking for a perpetual injunction (1) A.I.R. 1961 H. P. 32. (2) (1924) 5 Lah. 385. 115 to issue to the defendants-respondents to restrain them from preventing him from cutting and removing certain trees  from the.  land  belonging to  the  defendants-respondents-   The lower  courts  held that the trees growing  on  agricultural land  were "land" within the’ meaning of the  expression  as defined  in  s. 2(3) of the Punjab Alienation of  Land  Act, and,  therefore,  their sale to the plaintiff  was  unlawful having  regard to the provisions of that Act.   The’  Lahore High  Court  held  that  the  sale  did  not  infringe   the provisions  of that Act because the sale of trees was not  a sale  of  land. The High Court was not  concerned  with  the

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question whether on a transfer of land trees standing on  it passed to the transferee or not.     In  Nasib  Singh v. Amin Chand(1) it was held  that  the suit  for  possession of certain mango,  shisham  and  jaman trees was not a suit between a landlord and his tenant under the Punjab Tenancy Act and consequently the Civil Court  was competent to try the suit.     There  can. be no doubt that trees are capable of  being transferred apart from land, and if a person transfers trees or gives a right to a person to cut trees and remove them it cannot  be  said that he has transferred land.  But  we  are concerned  with  a different question and  the  question  is whether under s. 11 of the Act trees are included within the expression "right, title and interest  of the land-owner  in the  land  of  the  tenancy".  It  seems  to  us  that  this expression "right, title and interest of the land-owner  in’ the’  land" is wide enough to include trees standing on  the land.   It  is  clear that under s. 8  of  the  Transfer  of Property Act,  unless  a different intention is expressed or implied,  transfer of land would include trees  standing  on it.  It seems  to us that  we  should construe s. 11 in  the same manner. The  learned  counsel for the appellants contends  that  the trees standing on the land transferred to Moti Ram under  s. 11  of the Act are worth about Rs. 76,000, and it could  not have  been  the’ intention to transfer Rs. 76,000  worth  of trees  for  Rs. 62/56. He says. that the  trees  are  really forest  trees  and  it  was  never  the  intention  of   the legislature  to vest forest trees in the  tenants  acquiring land under s. 11 of the Act.  But no  such  contention seems to  have been raised in the written statement filed  by  the appellants.It  might  have  been different if  it  had  been proved that the portion of the area transferred to Moti  Ram was a natural forest.[see Kaju Mal v. Salig Ram(2)]. The learned counsel referring to s. 84 of the Act points out that one of the consequences of vesting of land in the State Government  under s. 83 is that trees expressly vest in  the ’State.  He says that if it was the intention to vest  trees in the tenant acquiring land (1) A.I.R. 1942 Lah. 152 (2) (1919) Punj. Rec. 237. 116 under  s.  11 of the Act, it would have  been  similarly  so expressed.  We  are  unable to accede  to  this  contention. Section 84(a)(i) reads as follows:                      "84. When a notification under  section               83   has   been  published  in   the   Gazette               notwithstanding  anything  contained  in   any               contract  or document or in any other law  for               the time being in force and save as  otherwise               provided  in  this Act,  the  consequences  as               hereinafter setforth shall, from the beginning               of the date of vesting ensue in respect of the               land to which the notification applies, namely               :--                    (a) all rights, title and interest of all               the landowners-                    (i)   in   every  such   land   including               cultivable or barren land, ghasnis,  charands,               trees,  wells,  tanks, ponds, water  channels,               ferries, pathways, hats, bazars and melas;..." If the contention of the learned counsel were. correct, even cultivable land which is expressly mentioned in s. 84(a) (i) would  not  vest  in  the tenant under s.  11  of  the  Act. Section  11 is drafted very simply and under  sub-s.(6)  the

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tenant  becomes  the  owner of the  land  comprised  in  the tenancy  on and from the date of grant of  the  certificate, and  it  is  expressly provided that the  right,  title  and interest of the landowner in the said land shall  determine. In  the   context  the word "owner"  is  very  comprehensive indeed, and  it implies that all rights, title and  interest of the landowner pass to the tenant.  Further, it seems  to. us  that it would lead to utter confusion if the  contention of  the  learned  counsel  is  accepted.   There  would   be interminable  disputes  as to the rights  of  the  erstwhile landowners  to go on the lands of erstwhile tenants and  cut trees  or take the fruit.  Moreover, under s. 15 of the  Act we  would, following the same reasoning, have to  hold  that the  trees on the land of the landowner did not vest in  the State.  This could hardly have been the intention.     For the aforesaid reasons we must uphold the judgment of the  Judicial Commissioner, although for different  reasons. In the result the appeal fails and is dismissed with costs. R.K.P.S.                     Appeal dismissed. 117