1. Forest produce contract — Declaration of private protected forest under Bihar Private Forests Act — Suit for restoration of possession and damages challenging Act's validity and notification process. (Para 3 , 4 , 6 , 9 , 10 )
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1961 Supreme(SC) 204
SUPREME COURT OF INDIA
24th April, 1961.
B.P. SINHA, C.J.I., A.K. SARKAR, K.C. DAS GUPTA, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
Guru Datta Sharma, Appellant
Versus
State of Bihar and another, Respondents.
Civil Appeal No. 241 of 1960.
Advocates appeared
Mr. L. K. Jha, Sr. Advocate (Mr. S. K. Jha, Mr. S. S. Shukla, Mrs. E. Udayarathnam and Mr. K. K. Sinha, Advocates, with him), for Appellant; Mr. Lal Narayan Sinha, Govt. Advocate, Bihar M/s. Bajrang Sahay and S. P. Varma, Advocates, with him), for Respondent No. 1.
Advocates:
Bajrang Sahai, E.UDAYARATHNAM, K.K.SINHA, L.K.JHA, LAL NARAIN SINHA, S.K.Jha, S.P.Varma, S.S.SHUKLA
Bajrang Sahai, E.UDAYARATHNAM, K.K.SINHA, L.K.JHA, LAL NARAIN SINHA, S.K.Jha, S.P.Varma, S.S.SHUKLA
Taking over the management and control of private forests by the State, while maintaining the owner's title and providing for profit distribution, is a regulatory measure and does not constitute "compulsory acquisition" of property requiring compensation under the Government of India Act, 1935.
Headnote:(A) Bihar Private Forests Act, 1946 & 1948; Bihar Private Forests (Validating) Act, 1949; Government of India Act, 1935 - Section 299(2); Constitution of India - Articles 13, 19 and 31 - Validity of notification for constituting private protected forest - Non-service of notice - Legislative competence - Acquisition of property vs. taking over management - Fundamental rights.
(B) Notification for constituting a private protected forest is a general notice intended to specify the land in question. The emphasis is on the identity of the land rather than the identity of the owner. Therefore, the incorrect mention or omission of the landlord's name in the notification does not render it invalid, provided the land is sufficiently described. (Paras 13-15)
(C) The taking over of control and management of a private forest by the State, where the legal title remains with the owner and the State is liable to account for net profits, does not amount to "compulsory acquisition" of property. "Acquisition" implies a transfer of title or a deprivation of the owner's property, whereas the imposition of a governmental agency for management is a regulatory measure. (Paras 28-31)
(D) If rights were lawfully extinguished by a valid pre-constitutional statute, such rights do not survive to be protected under the fundamental rights guaranteed by the Constitution. (Para 32)
Facts of the case:
A contractor was granted rights to cut timber and collect forest produce in a private forest. The State issued a notification to declare the area a private protected forest, but the notification listed the wrong landlord and was not served on the actual landlords. The State subsequently prevented the contractor from exercising his rights. The contractor challenged the validity of the notification and the constitutionality of the governing Acts, claiming they violated the Government of India Act, 1935 and the Constitution of India.
Findings of Court:
The notification was valid as it correctly identified the land. The failure to serve the notice was cured by a subsequent validating statute. The Acts were within the legislative competence of the Province as they related to "Forests." The taking over of management did not constitute "acquisition" without compensation, and the contractor's rights had been lawfully extinguished prior to the commencement of the Constitution.
Issues: Whether the incorrect name of the landlord in the notification invalidated the proceedings; whether the non-service of notice was fatal to the proceedings; whether the taking over of forest management constituted "acquisition" under the Government of India Act, 1935; and whether the Acts violated fundamental rights after the Constitution came into force.
Ratio Decidendi: The court ruled that the primary purpose of the notification was to identify the land, not the owner. It further held that the deprivation of the right of management and control, without affecting legal title or beneficial enjoyment, is not an "acquisition" of property. Finally, it determined that pre-constitutional lawful extinguishment of rights precludes subsequent claims under the Constitution.
Result: Appeal dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- property law
Table of Contents
2. Validity of notification under Section 14 — Legislative competence of Provincial Government — Violation of Section 299(2), Government of India Act, 1935 — Infringement of fundamental rights. (Para 9 , 12 , 21 )
3. Notification identifies land rather than owner — Validating Act cured service defects — Management of forests falls under Entry 22 — Management takeover is not property acquisition. (Para 13 , 15 , 16 , 22 , 23 , 27 , 30 )
4. Taking over management and control of property for public purpose without transferring title does not constitute compulsory acquisition under Section 299(2), Government of India Act, 1935. (Para 30 , 31 )
5. Appeal dismissed with costs. (Para 33 )
6. Does the omission or incorrect mention of a landlord's name in a notification under Section 14 of the Bihar Private Forests Act invalidate the notification?
No. The notification is a general notice emphasizing the identity of the land rather than the owner. As long as the land is specified, the notification is valid even if the landlord's name is incorrect. (Para 13 , 14 , 15 )
7. Does the entry Forests in the Provincial Legislative List include the power to assume management and control of private forests?
Yes. The entry Forests permits all legislation that is in pith and substance on the subject of forests, including the power to assume management and control for conservation and public interest. (Para 22 , 23 , 27 )
8. Does the state's takeover of the management and control of a private forest constitute compulsory acquisition under Section 299(2) of the Government of India Act, 1935?
No. Compulsory acquisition requires the transference of ownership or title. Imposing a governmental agency for management, while accounting for income, is a regulatory measure and not an acquisition of the property itself. (Para 28 , 29 , 30 , 31 )
9. Can a party invoke fundamental rights under the Constitution to challenge the enforcement of a valid pre-constitutional law that extinguished their rights?
No. If rights were lawfully extinguished by a valid enactment before the Constitution came into force, no rights survive to be protected by the fundamental rights guaranteed under Part III of the Constitution. (Para 32 )
Judgment
AYYANGAR, J. : This appeal comes before us on a certificate granted by High Court of Patna under Art. 133(1) of the Constitution.
2. The appellant had filed a suit against the State of Bihar before the Subordinate Judge, Daltonganj and had succeeded in obtaining a decree in his favour the details of which we shall presently narrate. The State preferred an appeal to the High Court and by the judgment now under appeal the learned Judges of the High Court had allowed the appeal and dismissed the suit with costs, and the plaintiff has come up on appeal to this court.
3. The facts giving rise to the suit and the appeal may now be briefly stated. The village of Jun in the district of Palamau in the State of Bihar was within the estate of the Raja of Ranka. This proprietor had granted a mokarari lease of the village which consisted mostly of forest lands, in favour of certain persons who have been referred to in these proceedings as the Manjhis. The Manjhis in their turn entered into a registered agreement on February 23, 1946 with Gurudutt Sharma-the appellant before us, whereby the latter was, in consideration of the payment of a sum of Rs. 6,000, granted the right to cut and remove bamboos and certain other timber to be found in a specified area of this forest-village. This right the appellant was to have for a period of 8 years ending on March 1, 1954. By a further deed executed on March 15, 1946 which was however unregistered, the Manjhis granted to the appellant the right to pluck, or collect and carry away bidi leaves in the same forest area for a period of 9 years ending March 1, 1955 for a consideration of Rs. 200, It is the case of the appellant that immediately after these deeds were executed, he started cutting the trees and otherwise exercising the rights granted to him under them.
4. Meanwhile the Governor of Bihar who had, by proclamation issued by him under S. 93 of the Government of India Act, 1935, assumed to himself the powers vested in the Provincial Legislature, enacted in exercise of the powers so assumed, the Bihar Private Forests Act, 1946 (Bihar Act III of 1946). It is the validity of this enactment and the interpretation of its provisions and of the similar provisions in the Bihar Private Forests Act, 1947 (Bihar Act IX of 1948), by which it was repealed and re-enacted, that form the main subject of controversy in this appeal. It is therefore necessary to set out certain of the relevant provisions and also the action taken under them in order to appreciate the contentions raised by learned Counsel for the appellant. The Governor s Act of 1946 extended to the whole of the Province of Bihar and came into force on February 25, 1946, when having received the assent of the Governor-General it was first published in the Bihar Gazette. There were certain forests which were excepted from the operation of this Act by its second section, but the forests in the village of Jun with which this appeal is concerned were not among them. The Act contained the definition of a "landlord" as meaning the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forests. It is obvious that the Manjhis would be "landlords" within this definition. Section 4 of this Act enacted:
"The rights of the landlord and ......the rights of any other person to cut, collect or remove trees, timber or other forest produce in or from.... in any forest shall not be exercised in contravention of the provisions made in or under this Act."
There were other restrictions on the rights of landlords or persons claiming through them but these are not very material for the point required to be decided in this appeal. Chapter III of this enactment which comprised Ss. 13 to 30 dealt with "private protected forests" which were defined in S. 3(10) as a forest specified in a notification issued under sub-s. (1) of S. 29. Section 13 with which this Chapter opens made provision for the Provincial Government. "if
