An act of continued cultivation of a cultivable land does not amount to breaking up or clearing the land within the meaning of Sec. 33(1)(c) of the Indian Forest Act.

G.N.Prasad, J.

1. The question for decision in this appeal by the State of Bihar is, whether the acquittal of the respondents, who are five in number, is justified.

2. They were prosecuted for having committed an offence under Sec.33 of the Indian Forest Act (16 of 1927), the relevant clause being Clause (c) of Sub-section (1) of that section, which makes it an offence to break up or clear for cultivation or any other purpose any land in any protected forest, contrary to any prohibition under Sec.30 of the Act.

3. The substance of the prosecution case is that in the morning of the 9th September, 1959, four of me respondents were found to be ploughing a portion of the land appertaining to plot No. 607 in Sulumdag within me jurisdiction of Bishrampur police station in the district of Palamau. About six acres in that plot were found to have been cultivated by the respondents. The land tell within the demarcated area of a protected forest in regard to which a notification contemplated by Sec.29 of the Forest Act had been issued by the State Government in July 1955. The accusation against the respondents, therefore, was that they had acted in contravention of a prohibition under Sec.30 of the Act, which lays down that the State Government may by notification in the Official Gazette prohibit as from a date fixed by the notification, amongst other things, "the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest".

4. At the trial it was not denied on behalf of the respondents that the disputed portion of plot. No. 607 lay within the demarcation tine of the protected forest in question. It was also not denied that they were ploughing the land, as alleged by the prosecution, on the 9th September, 1959. The defence case, however, is that the respondents were in cultivating possession of the disputed land on behalf of their maliks for some six years prior to the time of the occurrence and that their right to continue the cultivation work was not taken away by the issue of the notification under the Forest Act, referred to above. In support of their case of cultivation from previous years, the respondents adduced oral and some documentary evidence.

5. Upon a consideration of the evidence led by the parties, the learned trying magistrate has held that the prosecution has not been able to disprove the defence version of cultivation of the disputed land from previous years. Referring to the notification of July 1955, issued under Sec.29 of the Forest Act, which alone seems to have been brought to the notice of the learned trying magistrate, he has held that the act of the respondents in ploughing a portion of plot No. 607 did not constitute any offence since an act of continued cultivation of a cultivable land does not amount to breaking up or clearing the land within the meaning of Sec.33(1) (c) of the Act. The respondents having been acquitted, the State of Bihar has come up to this Court in appeal.

6. Mr. Shahi appearing in support of the appeal contends that the notification, of July 1955, must be read along with a subsequent notification issued under Sec.30 of the Act, being Notification No. C/F-19017/58, dated the 13th May, 1958, published In Part II of the Bihar Gazette dated the 16th July, 1958, in which there is a reference to the earlier notification of July 1955, which was issued under Sec.29 of the Act. It is urged that reading the two notifications together, the act of the respondents in ploughing a portion of plot No. 607 must be held to be an offence punishable under sec. 13 of the Act.

7. It is surprising that the notification of May 1953 was not, brought on the record or to the notice of the teamed trying magistrate and only the July 1955 notification was relied upon by the prosecution in the trial Court, although in terms it left intact all existing rights of individuals or communities in the protected forest land, and it was, only intende