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1994 Supreme(HP) 82
High Court Of Himachal Pradesh
BHAWANI SINGH,KAMLESH SHARMA,D.P.SOOD
MOHINDER PAL - Appellant
Versus
STATE OF H.P. - Respondent
Civil Writ Petition No. 707 of 1992 and Civil Writ Petition No 42 of 1990
Decided On : 05/09/1994
For the petitioner(s):Shri D. D. Thakur, Senior Advocate with S/Shri K D. Sood and A. K. Goel, Advocates. For the respondents):Shri B. Datta, Senior Advocate with Shri M. S. Guleria, Dy. Advocate General and Shri Haminder Lai, Advocate, for respondent Nos. 1 to 6. Shri P. A. Sharma, Sr. C. G. S. Counsel, for respondent No. 6.
Headnote:CONSTITUTION OF INDIA - Articles 31A(1)(a) - Estate - Forest under acquisition, held, as estate under Article 31A(1)(a) as defined under Article 31 (2)(a) - Article 31A(1)(a) gives a wide definition of Estate - This definition is inclusive in future - It not only defines Estate being one which has been defined in the existing law relating to land tenures in force in the area but also others falling under items (i) to (iii) - In order to give meaningful and functional interpretation to it in the context of local area, the Tenancy laws as well as the Revenue law will have to be read together and if so read, we can definitely conclude that the land and the forest is an Estate within the meaning of H.P. Land Revenue Act, 1953, the H.P. Tenancy and Land Reforms Act, 1972 and the H.P. Ceiling on Land Holdings Act, 1972.
PUBLIC PURPOSE - Acquisition of land for public purpose - Petitioner contended that the impugned legislation was violative of the Constitution as there was no public purpose behind the acquisition of his rights Had the legislation does not fall within the ambit of Entry 42 List III of 7th Schedule, therefore lit was without legislative competence - Held, Forest in question was owned by the Government, therefore, it was a public property - It is being managed by an individual - The Constitution envisages a socialistics pattern of society, therefore, management of the forest by the Government for the welfare of the people in general and village community in particular on social lines and from ecological angle was undoubtedly a public purpose.
PUBLIC PURPOSE - No exact definition possible - It can be ascertained from the facts of each case keeping in forefront certain general conditions and guidelines like general interest of the community.
H.P. KUTLEHAR FOREST (ACQUISITION OF MANAGEMENT) ACT, 1992 - Section 2(b) - Grant - Section 2(b) defines grant - It means the management of Kutlehar Forest was permitted by the Government The State wanted to dispense with the management of Forest by 211 individual in this era of democratic set up for better management, social benefits, preservation of ecology, ushering In social and conservation measures and for common benefit of general public - It also seeks to avoid concentration of wealth in the hands of an individual and utilize the same for common good.
H.P. KUTLEHAR FOREST (ACQUISITION OF MANAGEMENT) ACT, 1992 - Section 5 - Provided that the Government shall pay to the petitioner an amount equivalent to 1/5th of the net income after deduction of all lawful expenses incurred by him in the management during the financial year 1988-89 and the said amount shall be paid in five instalments payable on the first day of June every year with interest at the rate of 9% per annum - It was contended by the petitioner that the compensation intended to be paid was thoroughly unreasonable and illustory - Held, A proper and reasonable mode of assessing the compensation should have been provided for assessing the compensation intended to be payable to the petitioner - Section 5 of the Act declared as void.
H.P. KUTLEHAR FOREST (ACQUISITION OF MANAGEMENT) ACT, 1992 - Validity of Act of 1992 - Four Tappas formed Jagir which was resumed by Punjab Government under the Redemption of Jagirs Act, 1957 against payment of compensation, though the petitioner continued to manage the forest thereafter also with other 12 Tappas which conjointly formed the total management grant in favour of the petitioner in acknowledgment of his interest therein by the Government - It was not a cash grant as sought to be made out by the petitioner - Validity of the Act of 1992 upheld.
H.P. KUTLEHAR FOREST (ACQUISITION OF MANAGEMENT) ACT, 1992 - Validity of Act of 1992 was challenged by the petitioner on various grounds - Held, Primary purpose of legislation was to acquire the management grant and extinguish whatever right anyone has in the forest - Legislation does not seek to acquire chose in action or a cash grant as contended by the petitioner - Validity of the Act of 1992, upheld
CONSTITUTION OF INDIA - Articles 31A(1)(a) - Estate - Forest under acquisition, held, as estate under Article 31A(1)(a) as defined under Article 31 (2)(a) - Article 31A(1)(a) gives a wide definition of Estate - This definition is inclusive in future - It not only defines Estate being one which has been defined in the existing law relating to land tenures in force in the area but also others falling under items (i) to (iii) - In order to give meaningful and functional interpretation to it in the context of local area, the Tenancy laws as well as the Revenue law will have to be read together and if so read, we can definitely conclude that the land and the forest is an Estate within the meaning of H.P. Land Revenue Act, 1953, the H.P. Tenancy and Land Reforms Act, 1972 and the H.P. Ceiling on Land Holdings Act, 1972
CONSTITUTION OF INDIA - Articles 300-A - (enacted by 44th amendment) - Right to property has fallen from the status of Fundamental Right to that of legal right by taking it from Crapter-I Part III to Chapter V Part III of the Constitution - It states that no person shall be deprived of his property save by authority of law - It recognizes the principle of eminent domain, meaning thereby, three conditions must exist before the State can deprive a person of his property - They are: (a) there must be valid law; (b) public purpose and (c) adequate compensation.
Bhawani Singh, J.—The petitioner has challenged the constitutional validity of the Himachal Pradesh Kutlehar Forest (Acquisition of Management) Act, 1992 (hereafter shortly, the Management Acquisition Act or this Act), on numerous grounds being recorded in the latter part of this judgment. Before passing of this Act, the State Government issued Notification No. Rev. D (F) 7-1/90, dated January 19, 1990, under section 3 of the Punjab Resumption of Jagirs Act, 1957 directing the Principal Chief Conservator of Forests to take over management and possession of Kutlehar Jagir Forest from the petitioner with the assistance of the Collector. This Notification was assailed by the petitioner through Civil Writ Petition No. 42 of 1990, Shri Mohinder Pal v. State of Himachal Pradesh and others. By orders of January 22, 1990 and June 26, 1990, operation of this Notification was stayed and the writ petition admitted for hearing. Since both the actions of the respondents relate to the same forest, we asked Shri B. Datta, Id. senior Counsel for the respondents, to spell out the stand of the respondents in this regard. The learned Counsel submitted that the respondents do not depend on the Notification issued under the Resumption of Jagirs Act, 1957, impugned in Civil Writ Petition , No. 42 of 1990, the same would be withdrawn in due course. The State Government solely depends upon the present Act, thus, rendering Civil Writ Petition No. 42 of 1990 infructuous. In view of this stand taken by the respondents, we dismiss Civil Writ Petition No. 42 of 1990 as infructuous and direct the State Government to withdraw the impugned Notification.
2. In order to understand the crucial questions involved in this case for decision, it is necessasy to make mention of the essential facts of this case.
3. The petitioner submits that he is the descendant of the Pal Family of Kutlehar, a small principality in Kangra Hills, now, forming part of the State of Himachal Pradesh from November 1, 1966. It came into being 300-400 years ago and was ruled by his ancestors. It was divided into sixteen Tappas (chunks of land), four were Jagir Tappas and 12 Khalsa Tappas. In fur Jagir Tappas, land revenue to the extent of Rs. 10,000 was assigned to his fore-fathers by way ofJagir. In addition to these four Tappas, about twenty thousand acres of land belonged to Bartan-dars (right-holders). It was not used for agriculture purposes. The forefathers of the petitioner had grown large number of trees over it from period before 1868 A. D. They protected and maintained these trees while Bartandars were granted certain rights—right to get timber on concessional rates for their domestic requirements, the right to graze, their cattle etc. Obviously, for planting and managing these trees, substantial investments were made. The fore-fathers of the petitioner were dealing with these trees as proprietors of the forest and it was on account of this background that as early as 1869 during the Settlement operation of civil District of Kangra, Mr. James Lyall, Settlement Officer, made proposal through his letter No. 12, dated February 12, 1868 that the management of the forests in four Tappas, termed as Jagir Tappas, be granted to the Raja of Kutlehar. The Government of Punjab approved this proposal not only in respect of four Jagir Tappas, but also for all the sixteen Tappas —twelve Khalsa Tappas, It is contained in letter No, 49, dated January 11, 1869 and since then the predecessors of the petitioner started managing the forest subject to the conditions contained in the approval.
4. However, the Government started laying claim to the trees grown on this land after about four decades (1915). it was resisted and another round of correspondence took place between the parties. The matter was set at rest by Lt. Governor of Punjab, ft is clear from letter No. 124 (Forest), dated May 25, 1916 by Honble H. D. Craik, officiating Revenue Secretary of Punjab to the Junior Secretary to the Fin
