The publication of notifications under Sections 29 and 30 of the Indian Forest Act, 1927, is a necessary prerequisite for the application of Section 33 of the Act.

D. P. Sinha, J.

The petitioners, namely Santokhi Rana, Saheb Rana and Wali Ram alias Wali Rana have each been convicted under Section 33 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act') and sentenced to pay a fine of Rs. 25/- and in default thereof to undergo simple imprisonment for one month, by Shri Ganga Sagar Thakur, Magistrate, first class, Jamui, by his ORDER :dated 5.9.73.

2. The allegations against the petitioners were that while the Forest Guard of Jamui Protected Forest was on his rounds, he noticed the petitioners breaking up the land of the forest illegally. He submitted a report to the Foresteli who held a local inquiry and found that an area of 0.44 acre out of the forest plot No. 1507 had been ploughed up. Thereafter a complaint was filed against the petitioners alleging commission of an offence under Section 33 of the Act and the petitioners were put on trial with the result already mentioned.

3. It is contended by learned counsel for the petitioners that the conviction is bad in as much as it has not been legally proved that a notification as required by Section 29 of the Act had been published in the Official Gazette applying the provisions of Chapter IV of the Act which contains Section 29 to 34 applicable to the forest land in question and that no notice at all under Section 30 of the Act has been published in the official gazette and as such the petitioners could not have been convicted for having committed an offence under Clause (c) of Sub-section (1) of Section 33 of the Act. It is further contended that the defence of the petitioners that the land had been settled with them prior to the alleged issue of the notification under Section 29 of the Act, in support of which they had examined witnesses and produced documents, had not been considered by the learned Magistrate with the result that miscarriage of Justice has occurred.

4. The contention are well founded Section 29(1) of the Act provides that the State Government may by a notification in the official gazette, declare, the provisions of Chapter IV (Section 29 to 34) of the Act relating to protected forests, applicable to any forest land or waste land which is not included in a reserved forest, but which is the property of the Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled. Sub-section {2} thereof provides that the forest land and waste land comprised in any such notification shall be called a 'protected forest'. Subsection (3) lays down that no such notification shall be made unless the nature and extent of the rights of the Government and of private persons in or over the forest land or waste land comprised therein have been inquired into and recorded at a surveyor settlement or in such other manner as the State Government thinks sufficient. It further provides that every such record shall be presumed to be correct until the contrary is proved : Provided that, if, in the case of any forest land or waste land, the State Government thinks that such inquiry and record are necessary, but that they will occupy such length of time as in the meantime to endanger the rights of Government, the State Government may, pending such inquiry and record declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities. Under Section 30 of the Act the Government may, by a notification in the Official gazette, among other things mentioned in clauses (a) and (b) thereof, prohibit as in clause (c) thereof, from a date fixed in the notification, the quarrying of stone etc. and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.

5. Section 33 (1) of the Act lays down that any person who commits any of the offences specified in clauses (a) to (h) thereof, shall be punishable with imprisonment for a