1. Tenant's right to reclaim and cultivate protected forest land — Permission granted by Collector — Interference by Forest Department and State Government — Writ petition for restraint. (Para 1 , 2 )
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1961 Supreme(SC) 322
SUPREME COURT OF INDIA
K.N. WANCHOO, K.C. DAS GUPTA AND J.C. SHAH, JJ.
State of Bihar and others, Appellants
Versus
Lt. Col. K. S. R. Swami, Respondent.
Civil Appeal No. 354 of 1957, dated 22nd September, 1961.
Advocate appeared
Mr. L. K. Jha, Senior Advocate, (M/s. D. P. Singh, R. K. Garg, M. K. Ramamurthi and S. C. Agarwala, Advocates of M/s. Ramamurthi and Co., with him), for Appellants; M/s. B. K. P. Sinha and A. G. Ratnaparkhi, Advocates, for Respondent.
Advocates:
D.P.Singh, L.K.JHA, M.K.RAMAMURTHY, R.K.GARG, S.C.AGRAWAL
D.P.Singh, L.K.JHA, M.K.RAMAMURTHY, R.K.GARG, S.C.AGRAWAL
Rights in private forests are extinguished only upon final notification under Section 30, not interim notifications. Furthermore, specific permissions for land cultivation under rules made under Section 32 of the Indian Forest Act override general tree-cutting prohibitions and Section 30 prohibition notifications.
Headnote:(A) Bihar Private Forests Act, 1947 - Sections 14, 15, 16, 17, 19, 22, 23, 27, 30 - Indian Forest Act, 1927 - Sections 30, 32, 34 - Protected Forest Rules - Rules 1 to 4 and Rule 8 - Extinction of rights - Notification under proviso to Section 30 - Whether rights are extinguished by an interim notification - Held: No, the notification under the proviso is intended to be interim, pending the completion of enquiries, procedures, and appeals. Extinction of rights under Section 19 occurs only after the final notification under Section 30 is published. (Paras 9, 12)
(B) Indian Forest Act, 1927 - Rule 4 vs Rule 8 of Protected Forest Rules - Conflict between prohibition of cutting trees and permission for clearing land for cultivation - Harmonious construction - Held: Rules 1 to 4 apply to the cutting or removal of trees where the forest continues to be a forest. However, the cutting of trees necessary for clearing land for cultivation is governed by Rule 8. Permission granted by the Collector under Rule 8 for cultivation overrides the restrictions under Rules 1 to 4. (Paras 13-16)
(C) Indian Forest Act, 1927 - Section 30 vs Section 32 - Prohibition notification vs Rules - Held: Under Section 34, a prohibition notification under Section 30 does not prohibit acts done in accordance with rules made under Section 32. Therefore, permission granted under Rule 8 prevails over a general prohibition notification issued under Section 30. (Paras 17-18)
Facts of the case:
A tenant of forest land obtained written permission from the Collector under Rule 8 of the Protected Forest Rules to reclaim and cultivate the land. The Forest Officer interfered with these operations, relying on Rule 4, which prohibits the cutting or removal of trees. The State Government subsequently directed the Collector to withdraw the permission. The State further contended that the tenant's rights had been extinguished by a notification issued under the proviso to Section 30 of the Private Forests Act and that a general prohibition notification under Section 30 of the Indian Forest Act prevailed over the Collector's permission.
Findings of Court:
The court found that the interim notification under the proviso to Section 30 of the Private Forests Act does not effect the extinction of rights under Section 19; only the final notification does. Regarding the conflict between rules, the court held that Rule 8 specifically governs the clearing of land for cultivation, which is distinct from the general regulation of tree cutting under Rules 1 to 4. Additionally, Section 34 of the Indian Forest Act clarifies that rules made under Section 32 override prohibitions under Section 30.
Issues: (1) Whether a notification under the proviso to Section 30 of the Private Forests Act is sufficient to extinguish rights under Section 19. (2) Whether the power of the Forest Officer under Rule 4 prevails over the Collector's permission under Rule 8. (3) Whether a prohibition notification under Section 30 of the Indian Forest Act overrides permission granted under rules made under Section 32.
Ratio Decidendi: Extinction of rights under the Private Forests Act requires the publication of the final notification under Section 30, as the proviso is merely a temporary measure. In the Indian Forest Act, a harmonious construction of the rules implies that specific permission for land cultivation under Rule 8 overrides general tree-cutting restrictions. Furthermore, Section 34 explicitly protects acts performed in accordance with rules made under Section 32, rendering a Section 30 prohibition notification ineffective in such cases.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether rights were extinguished under Section 19, Bihar Private Forests Act — Conflict between Rule 4 and Rule 8 of Protected Forest Rules regarding authority to permit land clearing. (Para 3 , 4 , 5 , 6 )
3. Interim notifications under Section 30 proviso do not extinguish rights — Rule 8 governs land clearing for cultivation, distinct from Rule 4's general tree-cutting restrictions. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 )
4. Rights under Section 19 extinguish only upon final Section 30 notification — Rule 8 permissions for cultivation override Rule 4 restrictions and Section 30 prohibitions via Section 34. (Para 9 , 12 , 15 , 18 )
5. Appeal dismissed — Writ of mandamus issued directing cancellation of government order and restraining interference with tenant's possession. (Para 19 , 20 , 21 )
6. Does a notification under the proviso to Section 30 of the Bihar Private Forests Act extinguish rights under Section 19?
No. A notification under the proviso is interim and pending completion of inquiries. Extinction of rights under Section 19 occurs only after the final notification under Section 30 is published. (Para 9 , 12 )
7. How should the conflict between Rule 4 and Rule 8 of the Protected Forest Rules be resolved regarding tree cutting?
Rule 4 applies to cutting trees where the forest remains a forest. Rule 8 specifically governs clearing and breaking up land for cultivation. Harmonious construction dictates that Rule 8 controls clearing for cultivation. (Para 13 , 15 , 16 )
8. Does a prohibition notification under Section 30 of the Indian Forest Act override permissions granted under rules made under Section 32?
No. Section 34 of the Indian Forest Act specifies that nothing in that chapter prohibits acts done in accordance with rules made under Section 32, making Section 30 prohibitions ineffective against such permissions. (Para 17 , 18 )
Judgement
DAS GUPTA, J.: This appeal by the State of Bihar challenges the correctness of an order made by the High Court at Patna in an application by the respondent under Art. 226 of the Constitution. The respondent was inducted as a tenant on a tract of land measuring 245.69 acres in village Singpur by the then proprietor in November, 1945, and continued to remain in possession after the Zemindari interest of the proprietor became vested in the State of Bihar in consequence of a notification under the Bihar Land Reforms Act (Bihar Act XXX of 1952) on the 20th December 1952. In 1945 this area was forest land. On September 15, 1946, a notification was published under S. 14 of the Bihar Private Forest Act, 1946 declaring the Government s intention of constituting the forest a private protected forest. By the same notification the Governor further ordered that until the publication of a notification under S. 30 of the Act all the rights to cut, collect and remove trees or any class of trees in or from the forest shall cease to exist subject to conditions and specifications specified in the Second Schedule. The result of this notification was that immediately on its publication in the Government Gazette the respondent s right to cut, collect and remove trees ceased so long as this forest continued to be a private forest. On the 6th April, 1948, a notification under the proviso to S. 30 of the Bihar Private Forest Act, was published. After the forest land became vested in the State on the 30th December, 1952, there was a notification on January 22, 1953, which both parties agree, was in substance under the proviso to S. 29 of the Indian Forest Act, 1927. It is the common case of both the parties that in consequence of this notification the forests in Singpur Village became a protected forest. On May 29, 1953, a further notification under S. 30 of the Indian Forest Act was made prohibiting the breaking up or clearing the land of this and certain other "protected forests" for cultivation. As local employees of the Forest Department acting under the Divisional Forest Officer, Gaya, started interfering with the agricultural operations carried on on behalf of the petitioner apparently on the strength of this notification of May 29, 1953, the respondent sought the permission of the Collector of Gaya to start reclamation and cultivation of lands. On April 22, 1954 the Collector of Gaya gave the petitioner permission "to go ahead with the work of reclamation and cultivation in this area." The Forest Officer however disregarded the Collector s orders and made the petitioner to stop reclamation. On being approached by the appellant the Collector called upon the Forest Officer to furnish an explanation as to why he had flouted deliberately the Collector s orders. Ultimately, the Bihar Government sent a telegram to the Collector, Gaya, on June 10, 1954 desiring that the order issued by the Collector on April 22, permitting the respondent "to go ahead with the reclamation should be withdrawn pending the decision of the Government in the matter". The Collector forwarded a copy of this telegram to the respondent for information and necessary action, on June 11, 1954.
2. It does not appear that any further order has been made by the Government in the matter. On August 2, 1954 the respondent made his application to the High Court of Judicature at Patna praying that an appropriate writ be issued for cancellation by the Government of Bihar of the directions given on June 10, 1954 to the Collector and for restraining the Government of Bihar and the Forest Officer from interfering with the petitioner s possession over this land in village Singpur.
3. The petitioner s case was that the forest having become a protected forest under Ch. IV of the Indian Forest Act the Collector was the proper and competent authority to give permission to clear or break up for cultivation, land in this forest under R. 8 of the rules made by the Government of Bihar in exercis
