STATE OF BIHAR v. LT. COL. K. S. R. SWAMI
Citation: [1962] 3 S.C.R. 727; 1961 INSC 273
Court: Supreme Court of India
Bench: K.N. WANCHOO , K.C. DAS GUPTA, J.C. SHAH
Judgment date:
Case summary
1961 INSC 273. Supreme Court of India judgment dated 1961-09-22. STATE OF BIHAR v. LT. COL. K. S. R. SWAMI. Read the judgment and case details on LawSphereX.
Judgment text
3 S. C. R. SUPREME COURT REPORTS STATE OF BIHAR v. LT. COL. K. S. R, SWAMI (K. N. WANOHOO, K. C. DAS GUPTA and J. c. SHAH, JJ. ) Forest Land-Reclamation-Whether Collector's or Fore&t Officer's order should prwail--Extinction of rights-When takes plaoo-Bihar Private Forest Act, 1947 (Bihar 9 of 1948), •· 30, Prouiso-Bihar Protected Forest Ruka, rr. 1 to 4, 8. The respondent was the tenant of a tract of land which formed part of a forest and continued to remain in possession thereof after the Zemindari interest of the proprietor became vested in the State Government under the Bihar Land Reforms Act, 1952. The Government notified its intention to constitute the forest a private protected forest and by a subsequent notification under s.
30 of the Indian Forest Act prohibited the breaking up or cleaning the land of this and certain other "protected forests" for cultivation whereupon the employees of the Forest Department started interfering with the agricultural operations carried on by the respondent. The respondent then sought the permission of the Collector to start reclamation and cultivation of this area and the Collector gave him permission to "go ahead with the work of reclamation and cultivation of this area. " The forest officer disregarded the Collector's order and made the respondent stop recla~tion. Ultimately the Government interfered insisting on the withdrawal of the Collector's order.
The questions which arose for decision in this case was whether (I) the order passed by the Forest officer on the basis of rule 4 of the Bihar Protected Forest Rules, which prohibited the cutting or removal of trees without the permission of the Forest Officer should prevail over the permission granted by the Collector under r. 8 and (2) whether the respondent's right to the land had ceased under s. 19 of the Bihar Private Forests Act. Held, that rr. 1 to 4 apply to the cutting or removal of trees where inspite of such cutting the forest would remain a forest but those rules did not control the cutting of trees which would be necessary for clearing the land for cultivation or any other purpose which was controlled only by r. 8. In the present case the permission given by the Collector under r. 8 was in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission for the clearing or cultivation of the land.
The extinction of rights under s. 19 of the Act could take place only after the publication of the final notification • 728 SUPREME COURf REPORTS [1002] under s. 30 ancl not by a notification under the proviso thereof pending the completion of enquiries under the provisions of the Act. CIVIL APPELLATE JURISDICTION: Civil Appc&l No. 3ii4 of 1957. Appeal from the judgment and decree dated October 7, 1955, of the Patna High Court in Misc. Judicial Case No. 422 of 1954. L. K. Jlia, D. P. Singh, R. K. Garg, 1lf. K. Ramamurthi and S. C. Agarwala, for the appellant. a. B. K. P. Sinha and A. G. Ratnaparkhi, for respondent. 1961. September 22. The Judgment of tho Court was dolivl'red by DA. s GUPTA, J. ~This appeal by the Sta. to of Bihar challenges the correctness of an order madti by the High Court at Patna in an application by the respondent under Art. 226 of the con;titution. The respondent was inducted as a tenant on a tract of land measuring :! 45.
69 acres in village Singpur by tho then proprietor in ~ovcmber, 1945, and con tinned to remain in possession after the Zemindari interest of the proprietor bccamo vel! tcd in the State of Bihar in consequence of a notification under the Bihar Land Reforms Act (Bihar Act XXX of 1952) on the 30th December, 1952. In 1945 this area was forest land. On Septcmb~r 15, 1946, a notification was published under section 14 of thll Biha. r Pri\•ate Forest Act, 1946 declaring tho 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 troos in or from the forest shall cease to exist subject to conditions . and speci· fications specified in the Second Schedule. The result of tm~ notilka.
tion was that immediately on its publication in the Government Gazotto 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 noti· fi~ation under the proviso to s. 30 of the Bihar Private Forest Act, was published. After the forest fond 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 fore st. On May 29, 1953, a further notifivation under section 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 se enquiries, procedure and appeals are not stopped ty the declaration under the proviso. They have to be completed a. nd it is only after their completion that a notiJica.
tion can bo made by the Government under tho main part of the section. On a reasonable reading of tho section it is therefore abundantly clear that O'fllll where the Government thinks fit to make 11. declaration under the proviso, this will have effect only so long as tho period fixed under section 16 for preferring claims (i) has not expired; (ii) claims under ss. l{) and 22 ha;e not, been disposed of; (iii) the periods limited by section 27 for appealing from tho orders passed in respect of those claims have not elapsed; and (iv) all appeals preferred against such orders have been disposed of. Turning now to section 19 of this Chapter we find it laying down that "rights (other than landlord's rights) in respect of which no claim has boen urefcrred under s. 16 and of the oxist{Jnce of which no knowledge has been acquired by enquiry under s. 17, aha. II be extinguished, unless before tho noti-ficaticn under 8.
30 is published, the person claiming tht>m satisfies tho Forest S cttlemcnt OJiicer that he had sufficient cause for not preferring such claim within the period fixed under s. 16. " The appellant's argumont is that the words "notification under s. ~O is published" includes a notification made under the proviso to that section and that consequently when a notification under the proviso to s. 30 has been published all rights other than landlord's rights, in respect of which no claim has been preferred and of the existence of which no knowledge has been acquired by an en· quiry undllr s. 17, shall be extinguished. This argument is in our opinion wholly un· acceptl1 ble. Considered in the background 0f the provisions in the Act for claims to be mado under s. W, for enquiry into these by .
tho Forest Officer and thereFLftcr for ap'peels from the decision of tl1e Forest Officer, after the completion of all of which only the final notification constituting the private forest a private protected forest can be made, it is clear that rights "other than landlord's rights" in respect of which no claim has been preferred under s. 16 or which have not been disclosed by enquiry under s. 17 were intended by the legislature to be extinguished only o. fter the final notification is made. It is to he noticed that three months' time from the date of the proclama-tion under s. 16 is to be allowed for making claims. The enquiry under s. 17 can start only after these claims have been made and some more time must elapse before an enquiry can . be completed into the existence of rights which have not been claimed under s. 16. A notification under the proviso of s. 30 can however be made at any time after the notification under s. 14 has issued.
It is meaningless to speak of rights in respect of which no claim has been preferred under s. 16 and of the existence of which no knowledge has been acquired by an enquiry under s. 17, before the period for the enquiry under s. 17 has expired. Again, there will be no extinction of rights, under s. 19, if the person claiming the rights satisfies the Forest Settlement Officer that he had sufficient oause for not preferring the claim within the period fixed under s. 16. The question of thus satisfying the Forest Settelment Officer can clearly not arise before the period fixed under s. 16 has expired. All this clearly shows that the extinction of rights under s. 19 can take place only after the final notification under s. 30 has been published. It is necessary to consider next the apparent conflict between the powers of the Officers of the Forest Department under rr. 1 to 4 and the powers of the Collector under r. 8 of the Protected Forest Rules. Under r.
1 persons who are bona fide residents of Khasmahal lands may eut, convert and remove to their homes for their own domestic use certain trees but the Forest Officer can in his discretion withdraw this privilege. Certain other trees as specified in the Rule may [1962) be cut by suoh bona fide residents with the pre vi om permission of the Forest Officer. Under r. 2 the Forest Officer may by an order in writing aut-horise in certain circumstances villagers of adjacent villages alRo to cut and remove trees mentioned in r. I. Rulo 3 providoa th"t the Divisional Forest Officer may grant license to' any inhabitant of 'l. town or vilIR-ge in the vicinity of a forest to take treos, timber, or other produce for his own use to any person whatsoever authorising him to fell or remove trees for the purpose of trade on pay-ment of fees at current rates as may be sanction-ed by the Chief Conservator of Fore8ts.
Rule 4 on which special reliance is placed on behalf of the Stato is in these words :-"No person shall cut, convert or remove from the said forest or otherwi~e deal with any trees, timber or other forest p1·oduce of the said forest ............ except as providecl in Ruloa I, TI and III. Rulo Sunder which the Collector gave permission rm1s thus : "No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of. the Collector". There is an apparent conflict here between the provisions of r. 4 and r. 8 ; for, while under r. 4 no cutting, conver-sion or removal of trees can be made except under license issued under r. 3 or permisAion granted bv the Forest Officer under r. 2 or under tho p~ovisions of r. 1, all this can be set at naught if a written permission is granted by the Collector for clearing or breaking up the land for cultivation or any other purpose necessarily involving the cutting and removal of trees.
On b<>half of tho appellant-Stiite Mr. Jha argued that r. 8 has no operation so long as trees are standing and it is only if trees have been cut or removed under the provisions of rr. 1, 2 and 3 and only stumps of thoso trees aro standing that the Collector can give permission for clearing tho forest land or breaking it up for cultivation. We are unable to persuade oul'!! elves that in ma. king these rules the Government intended to give such State of Bihar limited authority only to the Collector. v. It is obvious that while Rules 1, 2, 3 and 4 Lt. Col. K. S R. Swami were made under clauses a, b, c and d of section 32, Das Gupta J. Rule 8 has been made under clause g of section 32 which is for the definite matter of "clearing and breaking up of land for cultivation or any other purpose" in a protected forest.
The reasonable way of reading Rules 1 to 4 and Rule 8 appears to us to be that Rules 1 to 4 apply to the cutting or removal of trees where in spite of such cutting the forest would continue to be a forest; but cutting of trees which is necessary for clearing the land for cultivation or any other purpose is not controlled by Rules 1, 2, 3 or 4 but only by Rule 8. That seems to us to be the only way of harmonious construction of Rules 4 and 8 and that must, in our opinion, have been intended by the rule making authority. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rules 1 to 4 had no application and Rule 8 under which the Collector acted applied.
It may be mentioned here that though Rule 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with tho written permission of the Collector -and on the other hand that without such permission no such clearing or breaking up for cultivation or -· any other purpose shall take place. The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission. The last argument advanced by Mr. Jha is that the prohibition by the State Government of clearing or breaking up for cultivation or for any other purpose of any land in a protected forest by the notification dated May 29, 1953, under s. 30 of the India Forest Act, 1927, must prevail over the permission given by tho Collector. It is to be noticed that when'.
as ooction 30 empowers the State R. Government int-,r alia to prohibit such breaking 11p or clearing for cultivation of any land in a protected forest, soction 32 empowers tho State Government to make rules to regulate imer alia "tho clearing and breaking of land for eulfrration or any other purpose" in a protected forest. Even if the legislature bad said nothing else in this matter, it would have been plausible to argue that the prohibition under the notification would yield before any permission given under the Rules under s. 32. All doubts are however set at rest by section . 34 of the Aet which runs thus :- "Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest Officer, or in accordance with rules made 11ndcr s. 32, or except as rc~ards any portion of a forest closed under s. 30, or as regards any rights the exercise of which has been suspended under B. 33, in the exercise of any right recorded under section 29".
It follows clearly and necessarily from section 34 that the prohibition by notification of the clearing of land would be ineffective where such clcarin~ is being mado in accordance with Rule 8 of the Rules made under section 32. All the contentions raised in tho appeal therefore fail. We are of opinion that there is no legal authority for tho State Government to interfere with the clearing or cultivation of land by tho respondent which iB proposed to be done in accordance with the written permission granted by the Collector under Ruic 8 of tho Protected :Forest Rules, 1953. It appears that through some O\'ersight the High Court ordered the issue of a writ of certiorari, chough a. writ in the nature of mandamus was 3 s. c. R. prayed for. It is clear that the approp.
riate w:it ~n • - the circumstances of the present oase 1s a writ Ill the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June IO, 1954 and restraining the Government and the Forest Officer from inter- -,. fearing with the petitioner's possession over 245. 69 acres of land in village Singpur which he possesses as tenant. The appeal is dismissed with coat8. Appeal dismissed. IMMANI APPA RAO AND OTHERS v. GOLLAPALLI RAMALINGAMURTHI AND ORS. (B. P. SINHA, C. J. , P. B. GAJllJNDRAGADKAR and RAGHUBAR DAYAL, JJ. ) ,_ ~raud--R•nami Conveyance in fraud of creditor. -Suit by b•n,am•dar for posseS! ion-Plea ~f. fraud in defence-If barred by ••loppel--Proper approach-Public inter'81-lndian Trusts Act 1882 (2 of 1882) s. 84. _.. - The conveyance in mit was tI.
e result of a collusive plan between respondent I and respondent 2 to defraud the latter's creditors. The a. izreement was that respondent I was to act as the benamidar for respl)ndent 2 and hfa sons, the appellants. The fraud succeeded and the creditors of respondent 2 were in _... fact defrauded. Thereafter respondent I brought the present suit for declaration of title and recovery of possession against respondent 2 and the appellants on the basis of the conveyance. The latter resisted the suit on the ground that the conveyance wa. fraudulent, unmpported by consideration and passed no title. The High Court in oecond appeal held that the appellants and respondent 2 were estopped from pleading fraud in the suit and decreed the same. The question was whether the view taken bv the High Court was correct and the ~stensible owner was entitled to a decree. Held, that there could be no question of estoppel in a case where both the parties were gu! ity of fraud
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