JUDGMENT

Malik, CJ. - This is an application on behalf of three minors that they have been cultivating portions of two plots Nos. 4450 and 4471 in village Allra-tahsil Utraula, district Gonda, since 1948, and a patta was executed in their favour in August 1951, that in March, 1952, when certain labourers and servants of the applicants were falling certain mahua trees, the District Forest Officer took exception under the provisions of the U.P. Private Forest Act, 1948 (No. VI of 1949) and prevented them from cutting down trees or from cultivating the portion of the land which had been under cultivation since 1948.

2. It is urged that the Act is ultra vires as it offends against the provisions of Article 31 Clause (3) and Article 19 Clause (1)(f) of the Constitution. In the affidavit it was said that this land was banjar land and the notification No. 1927/XIV-134-47 dated 3rd January, 1949, by which the U.P. Government declared all forest lands in Uttar Pradesh to be forest for the purposes of the said Act was an invalid notification inasmuch as it did not specify the area which was to be treated as forest land. A counter-affidavit was filed in which it was denied that this was banjar land and it was said that these two plots along with several other plots were situated in a forest area to which the U.P. Private Forests Act applied. It was also urged that these plots had a large number of trees on them and they were forest land and were not brought under cultivation in 1948 as was stated in the affidavit in support of the application. In paragraph 5 of the counter-affidavit it was mentioned that 7.07 acres of land was brought under cultivation by the aforesaid minors in 1359F, that is after 3rd June, 1949, when the U.P. Private Forests Act, 1948, had come into force and this was done without obtaining the previous permission of the Forest Officer as required by Section 7 of the Act. That the applicants, therefore, had no right to cultivate the said plots. In the rejoinder affidavit, it was mentioned that the applicants had been paying rent for the portions brought under cultivation and had paid rent as late as the 20th of June, 1953. It was again asserted that they had been in cultivation since 1948 and that Tribeni Prasad qanungo, who had inspected the plots and had made his report on the 26th February, 1952, had found on the spot that 5 acres of rabi crops were standing, that the rest of the land had been ploughed and that he had been informed by some villagers that the land was under cultivation for about four years. An additional counter-affidavit has also been filed on behalf of the opposite party in, which it is said that the trees standing on the two plots in dispute are about 33,000 in number.

3. The two points urged before us were that the applicants were entitled to cut the trees and the Forest Officer had not right to prevent them from cutting the same. This argument was advanced on two grounds, firstly, that the whole Act was bad under Article 31(2) of the Constitution and secondly that even if there was no question of appropriation of the rights of the applicants or of taking possession of the property and the Act merely imposed restrictions then the restrictions were unreasonable and under Article 19(1)(f) of the Constitution the restrictions must be deemed to be bad. The second point raised was that the applicants were entitled to cultivate the land already under cultivation and the Forest Officer had no right to prevent their doing so. Both these points can be easily disposed of.

4. As regards the second point, the real dispute relates to a question of fact, the applicants contention being that the land was under cultivation since 1948, that is, before the notification, to which Section 7 of the Act did not apply while the contention of the opposite-party is that the land was brought under cultivation after 3rd June, 1949, and the section therefore, was illegal in view of Section 7 of the Act. The applicants claim th