STATE OF MAHARASHTRA Vs. BANSIDHAR JAINARAYAN SHARMA

JUDGEMENT

(1.) The respondent Bansidhar, who is a tendu leaves contractor of Gondia, obtained a lease from the ex-Zamindar Devsha Bapu in respect of 53 villages under the Khutgaon Zamindari for a period of 10 years from 1-7-1942 to 30-6-1952 under the lease deed dated 17-8-1939. The lease was in respect of 21 kinds of forest produce including tendu leaves grown in the Zamindari lands in the 53 villages. The consideration for the lease was Rs. 12,000 out of which Rs. 2,000 were paid by way of Nazarana to the Zamindar and the remaining lease money was to be paid by 10 yearly equal instalments of Rs. 1,000. By another lease deed dated 28-11-1946 the lease was extended for a further period of 10 years from 1-7-1952 to 31-12-1962. The consideration for this lease was Rs. 4,500 per year besides Rs. 5,000 by way of Nazarana. During the subsistence of this lease, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into force and by virtue of the provisions contained in sections 3 and 4 of this enactment the proprietary rights of the Zamindar in respect of the Khutgaon Zamindari vetted in the State of Madhya Pradesh with effect from 31-3-1951. The first contract was honoured by the then Madhya Pradesh Government but the second contract dated 28-11-1946 was not, on the ground that it was brought into existence with a view to circumvent and defeat the provisions of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. The State Government. therefore, put the tendu leaves forest of Ex-Khutgaon Zamindari to auction in 1954. The respondent, therefore, filed Writ Petition No. 27 of 1954, in the Supreme Court under Art. 32 of the Constitution of India and obtained an order of injunction restraining the then State of Madhya Pradesh from disturbing respondent's right accrued to him under the lease for the collection of tendu leaves and miscellaneous minor forest produce from the forests of the Khutgaon Ex-Zamindari granted by Devsha Bapu under the lease-deeds dated 17th Aug. 1939 and 28th Nov. 1946. In view of this order, the respondent was allowed by the officers of the Forest Department of the then Madhya Pradesh after obtaining an undertaking from him on 15-2-1954 that in case the decision of the Supreme Court went against him, he would pay reasonable lease amount that may be fixed by the Government.

(2.) The Writ Petition filed by the respondent was dismissed by the Supreme Court on 9th March 1959. Thereafter auction of the tendu leaves forest in question was held on 30-3-1959. Royalty fetched in that auction was Rs. 21,600 for one year. On the basis of this amount, the State of Maharashtra as succession-in-interest of the then State of Madhya Pradesh, filed a suit on 20th Dec. 1967 for recovering Rs. 1,29,600 as mesne profits for the years 1953 to 1958 less the amount of Rs. 27,000 received from the respondent during the said period.

(3.) The respondent inter alia contended that the contract was honoured by the Madhya Pradesh Government for the year 1953 and that during the year, 1954 to 1958, the work was carried out in pursuance of the stay order granted by the Supreme Court on 13-2-1954. He maintained that his possession was not wrongful. He further contended that upto 9-3-1959, when the Supreme Court decided batch of petitions in the ruling reported in Mahadeo Vs. State, A I R 1959 S C 735 the law as understood and interpreted by the Supreme Court and the various High Courts was that contracts like the one held by the respondent obtained from the former Zamindars were valid and enforceable against the State. He also contended that the royalty recovered by the State from him was a fair measure of damages. According to him the royalty fetched in the year 1959 was neither a fair nor legal measure for deciding the quantum of damages for the years 1953 to 1958. According to him, had the Khutgaon Zamindari forest been put to auction in any of the suit years, it would not have fetched any amount whatever, because the fact that such contracts had been upheld by the Supreme Court in Chhoiabhai's case, A I R 1953 S C 476 would have deterred any contractor whatever from offering any bids.