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PETITIONER: MAHADEO

       Vs.

RESPONDENT: THE STATE OF BOMBAY(and connected petitions)

DATE OF JUDGMENT: 09/03/1959

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, SUDHI RANJAN (CJ) DAS, S.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1959 AIR  735            1959 SCR  Supl. (2) 339  CITATOR INFO :  F          1962 SC1916  (4,7)  R          1966 SC1637  (8)  R          1968 SC1218  (2)  R          1970 SC 706  (7)  D          1976 SC1813  (13)  E&R        1985 SC1293  (53,112, TO 117,122)

ACT:        Fundamental Rights, Violation of-Agreement with  Proprietors        for  grant of right lo pick and carry away tendu leaves  and        other   ancillary   rights-Nature   of   such    rights-Non-        Registration  of agreement-Effect-Abolition  of  Proprietary        rights in Estates, etc.-Non-recognition of the agreements by        State,  if  violates fundamental rights  -Central  Provinces        Land  Revenue Act, 1917 (Central Provinces 11 of 1917),  SS.        2(13),  47(3), 202-Madhya Pradesh Abolition of  Pro-Prietary        Rights (Estates, Mahals, Alienated Lands) Act, 1950  (Madhya        Pradesh 1 of 1951), ss. 2(6), 3, 4.

HEADNOTE: 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,  bamboos, 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

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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". 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 340 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 Firm Chhotabhai jethabai 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 agree- ment  had expired, the only remedy, if any, was to  sue  for breach of contract and no writ 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  were 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  jethabai  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.  gig, followed.

JUDGMENT: 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. M.S. K. Sastri, for the petitioners in Petitions Nos.  26

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and 27 of 54 and 24 of 1955. V.N.  Swami and M. S. K. Sastri, for the  petitioners  in Petitions Nos. 437 of 55 and 256 of 56. 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 17 of 1957. 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 I. 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 HIDAYATULLAH,  J.-The  judgment in Petition No. 12  of  1957 shall  also dispose of petitions Nos. 26 and 27 of 1954,  24 and 437 of 1955, 256 of 1956 and 16, 17 and 73 of 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 incorporated 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 their 342 terms,  in view of the decision of this Court in  Shri-mathi 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  Deed  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.

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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  Firm Chhotabhai  Jethabai  Patel and Co. v. The State  of  Madhya Pradesh (2).  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  consider- ation. 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. 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 Chhotabhai’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 can- not  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  prendre- needed  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. 344 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.

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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 granted 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 Mohanlal Hargovind of Jubbalpore v.  Commissioner of Income-tax, Central Provinces and Berar (2), 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 carry 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 Do 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, 345 Land  Systems of British India, Vol.  1,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 pro-prietor 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.

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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  as a lessee or a  licensee,  those  rights -would no doubt vest in the State." 44 346 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  (1)  that  on  a  construction  of   the documents there under consideration and adopting a principle enunciated  by  the Privy Council in Mohanlal  Hargovind  of Jubbalpore  v. Commissioner of Incometax, Central  Provinces and Berar (2) 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 consi- deration  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 contractual  rights,  then as pointed out in the  two  later decisions,  in  Ananda Behera v. The State  of  Orissa  (3), Shantabai’s  case (4), 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 (1) as a precedent. (1)[1953] S.C.R. 476. (3)[1955] 2 S.C.R. 265. (2)  I.L.R. 1949 Nag. 892, 898. (4)  [1959] S.C.R. 265.                           347 The  argument of counsel in these cases followed  the  broad pattern  of  the decision in Chhotabhai’s case (1).  and  we next  proceed  to consider it.  It 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  out,  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 I 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,

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and  the  grant of such a right is not comprehended  in  the firstsub-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  peti- tioners  is not I proprietary right’ at all but a  right  to get  I 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  pro- vided  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. 348 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  possession  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  (godowns)  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,  Nala 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

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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                             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  right to  a  growing  crop  has,  however,  to  be  examined  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 fructus industriales,   but   we  have  to  consider   whether   the transaction concerns " goods " or "moveable property " or  " immovable  property  ".  The law is made  difficult  by  the definitions which exist in the General Clauses Act, the Sale of Goods Act, the (1)[1897] 2 Ch. 96. 350 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.,

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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, presumably, 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                             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 such 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 352 tells  us  who, besides the proprietor, is included  in  the term ’proprietor’.  Further, the definitions in the Act  are

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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 thus 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 through 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’, I mortgagee with possession’, I  lessees holding  under leases from year to year’ and the  like.   In addition,   there  is  invariably  the  inclusion  of  I   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 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 whom the  entire  bundle  of rights is shared.  Every proprietor or sub-proprietor enjoys proprietary rights over land, forests, etc., falling  within his  interest.   The  right to forest trees,  etc.,  is  the consequence  of proprietorship, and indeed, under  s.  47(3) the  State Government can declare which rights and  interest must be regarded as ’ proprietary 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 cause to be  recorded,  in accordance  with rules made under s. 227, all  changes  that

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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 expenses being paid  to  the proprietors  or to superior and inferior proprietors as  the case may be.  Sub-sections (9) and (10) provide 45 354 (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  the  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.  The answer to the second  question  is also  in the affirmative.  Being a 1 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 befollowed. Even  assuming that the documents in question do not  amount to grant of any proprietary right by the proprietors to  the petitioners,  the latter can have only the benefit of  their respective contracts or licenses.  In either case, the State has  not, by the Act, acquired or taken possession  of  such contracts  or licenses and consequently, there has  been  no infringement  of the petitioners , fundamental  right  which alone   can  support  a  petition  under  Art.  32  of   the Constitution. 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. 355