Ramaswami, J. - (1.) Respondents Nos. 1 to 11 were the Jagirdars of Waghach State in former Sankeda Mewar in Reva Kantha Agency which now forms part of the State of Gujarat. They claimed that they were the full owners of all the land including forest areas in the said State and exercised full revenue power during their regime. There were 39 villages in Waghach State in all of which there were forests. Except for the lands which lands which were cultivated all the lands in the said villages were forest lands. Respondents Nos. 1 to 11 further claimed that they had full proprietary rights over the forest lands and enjoyed the produce as full owners thereof. By the agreement of merger dated June 1, 1948 the State of Waghch was merged with the State of Bombay with effect from June 10, 1948 On August 19, 1953 respondents 1 to 11 entered into an agreement with respondent No.12 whereby respondent No.12 became entitled to cut and remove all species of trees from the forest lands in the 39 villages for a period of ten years. On August 1, 1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Act XXXIX of 1954) came into force. This Act was passed with the object of abolishing jagirs in the merged territories and merged areas in the State of Bombay and providing for matters consequential and incidental thereto. The jagirs were classified, under the Act into two categories namely. (1) proprietary jagirs and (2) No-proprietary jagirs. It is the undisputed position in the present case that the jagirs in the category of proprietary jagirs. Under S. 5 of the Jaagirs Abolition Act the Jagirdars became occupants in the lands including forest areas which were in their possession before coming into force of the Act, on July 6, 1956 the state Government issued a notification under S. 34 (A) of the Indian Forest Act, declaring all uncultivated lands in the said 39 villages to be forests for the purposes of Ch. 5 of the Act. On March 19, 1958, the Divisional Forest Officer wrote a letter to the respondents wherein he stated that all the rights of the jagirdars had been abolished by the Jagirs Abolition Act and that the reserved species of trees standing on the lands belonged to the state Government. He, therefore, asked the respondents to refrain from cutting teak and Pancharao trees standing in the forest lands. On July 11, 1958, the Divisional Forest Officer wrote another letter to the respondents in which he stated that the reserved species of trees-teak; blackwood and sandalwood-vested in the state Government and, therefore, prohibited the respondents from cutting and removing the material from those trees. He also warned the respondents that if they cut and removed the material of such trees they will be liable to prosecution. On the same date he wrote another letter to the respondents and informed them that the material obtained by cutting teak and blackwood trees which was lying in the forest lands, had been advertised for sale. The respondents thereafter filed a special Civil Application No. 2146 of 1958 in the High Court of Judicature at Bombay against the appellants for the grant of a writ in the nature of mandamus under Art. 226 of the Constitution directing them to cancel the orders contained in the letters of the Divisional Forest Officer, dated March 19, 1958 and July 11, 1958 and to restrain the appellants from enforcing the said orders. The High Court, by its judgment, dated January 14, 1059, allowed the application of the respondents holding that after coming into force of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees were extinguished but at the same time jagirdars became occupants of the forest lands under Section 5 (1) (b) of the said Act and they accordingly became entitled to the trees standing on the forest lands. The High Court held that all the trees standing on the forest lands belonged to the respondents 1 to 11 and the same did not belong to the state Government and consequently the State Government was not entitled to sell the material obtained by cutting the trees. Accordingly the High Court issued an injunction restraining the appellants from preventing the respondents from cutting any species of trees standing in the forest lands in the villages in question and from removing and disposing of the produce thereof. The High Court further held that this order would be without prejudice to the right of the state Government, if they had any, to reserve any class of trees under S. 40 of the Land Revenue Code or under any other law for the time being in force, or to impose such restrictions as it may be lawful for them to do, under the provisions of the Indian Forest Act and the Rules made thereunder.
(2.) The present appeal is brought by special leave on behalf of the State of Gujarat and the other appellants against the order of the High court of judicature at Bombay in the Special Civil Application No. 2146 of 1958.
(3.) The question presented for determination in this case is whether the trees standing in the forest lands of the 36 villages in question belonging to the jagirdars-respondents 1 to 11 or to the State Government and whether the respondents have a right to cut and remove the trees including the reserved species of trees from the forest lands of these villages.;