Appeal No 41 of 1960
38 294 Appeal from the judgment and decree dated April 281958 of the Patna High Court in appeal from Original Decree No 70 of 1953
L K Jha A K Jha section section Shukla E Udayarathnam and K K Sinha for the appellant
Lal Narayan Sinha Bajrang Sahay and section P Varma for the respondent No 1 1961
April 24
The Judgment of the Court was delivered by AYYANGAR J
This appeal comes before us on a certificate granted by High Court of Patna under article 1331 of the Constitution
The appellant had filed a suit against the State of Bihar before the Subordinate Judge Daltonganj and had succeeded in obtaining a decree in his favour the details of which we shall presently narrate
The State preferred an appeal to the High Court and by the judgment now under appeal the learned Judges of the High Court had allowed the appeal and dismissed the suit with costs and the plaintiff has come upon appeal to this court
The facts giving rise to the suit and the appeal may now be briefly stated
The village of Jun in the district of Palamau in the State of Bihar was within the estate of the Raja of Ranka
This proprietor had granted a mokarari lease of the village which consisted mostly of forest lands in favour of certain persons who have been referred to in these proceedings as the Manjhis
The Manjhis in their turn entered into a registered agreement on February 23 1946 with Gurudutt Sharma the appellant before us whereby the latter was in consideration of the payment of a sum of Rs 6000 granted the right to cut and remove bamboos and certain other timber to be found in a specified area of this forest village
This right the appellant was to have for a period of 8 years ending on March 1 1954
By a further deed executed on March 15 1946 which was however unregistered the Manjhis granted to the appellant the right to pluck or collect and carry away bidi leaves in the same forest area for 295 a period of 9 years ending March 1 1955 for a con sideration of Rs 200
It is the case of the appellant that immediately after these deeds were executed he started cutting the trees and otherwise exercising the rights granted to him under them
Meanwhile the Governor of Bihar who had by proclamation issued by him under section 93 of the Government of India Act 1935 assumed to himself the powers vested in the Provincial Legislature enacted in exercise of the powers so assumed the Bihar Private Forests Act 1946 Bihar 3 of 1946
It is the validity of this enactment and the interpretation of its provisions and
of the similar provisions in the Bihar Private Forests Act 1947 Bihar 9 of 1948 by which it was repealed and reenacted that form the main subject of controversy in this appeal
It is therefore necessary to set out certain of the relevant provisions and also the action taken under them in order to appreciate the contentions raised by learned Counsel for the appellant
The Governor s Act of 1946 extended to the whole of the Province of Bihar and came into force on February 25 1946 when having received the assent of the Governor General it was first published in the Bihar Gazette
There were certain forests which were excepted from the operation of this Act by its second section but the forests in the village of Jun with which this appeal is concerned were not among them
The Act contained the definition of a landlord as meaning the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forests 
It is obvious that the Manjhis would be landlords within this definition
Section 4 of this Act enacted The rights of the landlord and the rights of any other person to cut collect or remove trees timber or other forest produce in or from in any forest shall not be exercised in contravention of the provisions made in or under this Act
 There were other restrictions oil the rights of landlords or persons claiming through them but these are not very material for the point required to be decided in this appeal
Chapter III of this enactment which 296 comprised sections 13 to 30 dealt with private protected forests which were defined in section 310 as a forest specified in a notification issued under sub section
1 of section 29 
Section 13 with which this Chapter opens made provision for the Provincial Government if satisfied that it was necessary in the public interest to apply the provisions of this Chapter to any private forest to constitute such forest a private protected forest
 Section 14 required the Government when proposing to constitute a private forest as a private protected forest to issue a notification a copy of which shall be served on the landlord in the prescribed manner a declaring its proposal b specifying the situation and limits of the forests and stating that landlords whose interests are likely to be affected by the constitution of the private protected forests to state their objections in writing against the proposal Section 15 prescribed the procedure for hearing the objections which might be presented under section 14 and after the disposal of the objections a notification might issue declaring that it has been decided to constitute a demarcated area as a private protected forest and for other consequential matters including the determination of the existence and nature of rights other than those of the landlords in or over such forests
After the issue of the notification under section 15 the Forest Settlement Officer was required by section 16 to publish a proclamation in the village in the neighborhood of the forest requiring persons claiming rights other than those of a landlord to appear before him and state the particulars thereof and the compensation which they claimed for the infringement of their rights
Sections 17 and 18 dealt with the enquiry by the Forest Settlement Officer in respect of these objections and his powers in doing so
Section 19 made provision for the extinction of the rights and claims which had not been preferred in response to a notification under section 16 unless the officer was satisfied that the same was not made for sufficient cause
Section 29 enacted 29
1 When the following events have occurred namely a the period fixed under section 16 for preferring 297 claims has elapsed and all claims if any made under sections 16 and 22 have been disposed of by the Forest Settlement Officer and b if any such claims have been made the period limited by section 26 for appealing from the orders passed on such claims has elapsed and all appeals if any presented within such period have been disposed of by the appellate officer the Provincial Government shall publish a notification in the official Gazette specifying definitely according to boundary marks erected or otherwise the limits of the forest which is to be constituted a private protected forest and declaring the same to be a private protected forest from a date fixed by the notification and from the date so fixed such forest shall be deemed to be a private protected forest Provided that if in the case of any forest in respect of which a notification under section 14 has issued the Provincial Government considers that the enquiries procedure and appeals referred to in this Chapter will occupy such length of time as in the meantime to endanger the conservation of the forest the Provincial Government may pending the completion of the said enquiries procedures and appeals declare such forest to be a private protected forest but not except as provided in sections 20 and 21 so as to abridge or affect any existing rights
2 Any declaration made in respect of any forest by the Provincial Government under the proviso to sub section 1 shall cease to have effect from the date of any final order passed under section 15 directing that the proposal to constitute such forest a private protected forest shall be dropped or of any order passed under sub section 1
 But pending this notification by which a private protected forest was constituted there were provisions for keeping things in status quo and for the extinguishment of rights by payment of compensation of the interests of persons who were not landlords
Section 20 imposed a ban on landlords entering into 298 contracts with any other person conferring on the latter the right to cut collect or remove trees timber or other forest produce after the issue of a notification under section 14
Having thus dealt with the landlord section 21 proceeded to enact a similar ban to have effect between the date of the notification under section 14 and the formal constitution of a private protected forest by a notification under section 29 against the cutting collection or removal of trees by every person including the landlord as well as any person claiming rights under him
Section 22 laid down the procedure for dealing with claims of persons who had entered into contracts with landlords whereby they had obtained the right to cut collect and remove trees timber or other forest produce etc
It also made provision for the payment of compensation to such contractors
Sections 23 to 28 made provision for miscellaneous matters to which it is not necessary to refer
There are other provisions which are material for the points raised in this appeal but to these we shall advert later
To resume the narration of facts there was issued on October 14 1946 a notification under sections 14 and 21 under Bihar Act III of 1946 of which the operative words were In exercise of the powers conferred by section 14 of the said Act the Governor is pleased to declare his intention of constituting the said forest described in the 1st Schedule hereto annexed a private protected forest and direct that any landlord whose interests are likely to be affected by the said declaration may within 3 months from the date of this notifi cation present to the Deputy Collector of Palamau an application in writing stating his objection to the said forest being constituted a private protected forest
 The notification contained a further paragraph containing a direction purporting to be by virtue of the power contained in section 21 to prohibit every person from cutting collecting or removing any tree or class of trees from the forests until the publication of the notification under section 29 of the Act In the Schedule 299 annexed village Jun was included with details of its location
Against the column headed Name of the proprietor was entered the Raja of Ranka though as stated already the rights over the forest had passed to the Manjhis whose name had been entered in the revenue records
It is stated that until October 21 1946 no rules had been framed under the Act prescribing the form and contents of the notification and of the procedure to be followed in the issue of the notification as well as for the conduct of the subsequent proceedings
Immediately on the issue of this notification the officials of the respondent State prevented the appellant from working the forest any further
The appellant at first took proceedings on the basis of his rights under the Act
Meanwhile as the life of the Bihar Act III of 1946 was limited by the terms of section 93 of the Government of India Act 1935 the Legislature of the Province of Bihar enacted the Bihar Private Forests Act 1948 Act IX of 1948 repealing and reenacting the Governor s Act
This enactment came into force on March 3 1948 and its terms subject to immaterial variations were identical with those contained in the Governor s Act which it replaced
The proceedings taken by the appellant continued even after Act IX of 1948 came into force
But it is not necessary to refer to the steps taken by the appel lant to assert certain rights and prefer certain claims under this enactment because they either failed or were withdrawn at a later stage and nothing turns on them
Having failed in these proceedings under the Act the appellant filed the suit which has given rise to the present appeal T section 1 of 1952 in the Court of the Subordinate Judge of Daltonganj impleading the State of Bihar and one A R Chaudhuri to whom the right to cut and collect bamboo and timber in a portion of the area covered by the appellant s contract was granted by the Government as the second defen dant
The plaint set out the various proceedings which the plaintiff had taken under the Act but the grounds on which he sought the reliefs claimed were 300 rested on 1 The Forest Acts of 1946 and 1948 were unconstitutional and void as being in contravention of the provisions of the Government of India Act 1935
2 That even if valid when originally enacted their provisions violated the fundamental rights guaranteed by Part III of the Constitution and could not therefore be operative or be enforced after January 26 1950
3 The proceedings by which the suit forest was declared a private protected forest were illegal and invalid principally for the reasons that a the notification under section 14 did not conform to the requirements of the statute b the notices required to be served on the landlord under the Act were not served and c the notifications were not properly published in the village as required by the Act
Based on these grounds the reliefs sought in the plaint were set out in para
17 and of these the material ones were 1 a declaration that the plaintiff had a right to work the forests by cutting and carrying away the trees timber etc
and the bidi leaves which he was entitled to do under the deeds dated February 23 1946 and March 15 1946 executed by the Manjhis in his favour unaffected by the Bihar Private Forests Act the validity of the proceedings under which was impugned 2 a decree for Rs 55000 being the estimated damages suffered by the plaintiff by reason of the wrongful acts of the Government 3 restoration to possession of the forest lands included in the two deeds and 4 for mesne profits
The learned Subordinate Judge who tried the suit though he held the Act valid accepted the plaintiff s contention that the notifications issued under section 14 and the other provisions of Chapter III of the Act were invalid primarily for the reason that the name of the Manjhis as the landlord had not been mentioned in the notification issued under section 14 and on this ground he passed a decree directing the State to restore possession of the forest to the plaintiff so as to enable him to enjoy the same for a substituted period making allowance for the 7 12 months for which he had worked the jungle before his enjoyment was interfered in October 1946
In this view the claim for 301 damages for Rs 55000 and for mesne profits was disallowed
The State filed an appeal to the High Court of Patna from this judgment and decree
The learned Judges reversed the decree of the Subordinate Judge and dismissed the suit with costs holding that the omission of the name of the Manjhis in the notification issued on October 14 1946 did not render the same invalid and that even otherwise the proceedings under Ch
III of the Act had been validated by section 2 of Act XII of 1949 to whose terms we shall refer in due course
In view of the previous decisions of the High Court which upheld the constitutional validity of the Bihar Private Forests Act that point was not pressed in the High Court
The plaintiff thereafter applied to the High Court for a certificate under article 1331a of the Constitution and having obtained it has preferred the present appeal
In the petition of appeal as originally filed the constitutional points regarding the validity of the Private Forests Act were not raised but subsequently the appellant filed an application under O XVIII r 32 of the Supreme Court Rules for permission to urge additional grounds in support of the appeal which we granted
The principal ground urged in this application was that the main operative provisions of the Bihar Private Forests Act both as originally enacted in 1946 as well as when reenacted in 1948 were unconstitutional as contravening the requirements of section 2992 of the Government of India Act 1935
We consider that it will be convenient to deal first with the point as to whether assuming that the Bihar Private Forests Act 1946 and 1948 were valid the proceedings under Chapter III of the Act for declaring the village of Jun as a private protected forest were legal before considering the question as to the constitutionality of the Act raised by the additional grounds urged before us
As would have been noticed even from the narration of the facts the principal point urged for impugning the validity of the proceedings under Ch
III of the Act was that the Manjhis 39 302 whose name had been entered in the record of rights as the land holders of the suit village of Jun had not been set out in the notification published under section 14 of the Act and this was the ground upon which the learned Subordinate Judge decided the suit in favour of the appellant
The provisions of section 14 are in these terms 14
Whenever it is proposed by the Provincial Government to constitute any private forest a private protected forest the Provincial Government shall issue a notification a copy of which shall be served on the landlord in the prescribed mannera declaring that it is proposed to constitute such forest a private protected forest b specifying as nearly as possible the situation and limits of such forest and c stating that any landlord whose interests are likely to be affected if such forest is constituted a private protected forest may within such period not being less than three months from the date of the notification as shall be stated in the notification present to the Collector in writing any objection to such forest being constituted a private protected forest
Explanation For the purpose of clause b it shall be sufficient to describe the limits of the forest by roads rivers ridges or other well known or readily intelligible boundaries
 It would be seen that section 14 contemplates two stages 1 the issue of a notification and 2 the service of the notification as issued on the landlord which has to be in the prescribed manner
The expression Landlord  is defined in section 36 as the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forest
 So far as the notification itself is concerned which provision is made for the specification of the three matters which are set out in sub cls
a b and c there is no requirement in terms that the name of the landlord should be set out
It will further be observed that the notification enables any person claiming 303 interest as a landlord and who considers that his interests are likely to be affected by the proceedings taken to prefer his objections to the declaration as a private protected forest
In other words the notification is a general notice and its aim is to specify the land in respect of which the declaration is proposed to be made so that the emphasis is more upon the identity of the land than about the person who owns the land or has rights over it
Besides the section in terms specifies what the legal and essential requirements as regards the contents of the notification are and the ordinary rule of construction would point to those requirements being exhaustive of what the law demands
If therefore the specification or mention of the name of the landlord is not an express requirement of the section is such a specification or mention a requirement by any necessary intendment We have already set out the text of the impugned notification dated October 14 1946 and it would be seen that it did mention the name of the landlord but this was incorrect in the sense that the Raja of Ranka who was the proprietor of the estate but who had parted with his rights over the forests by a mokrari lease in favour of the Manjhis was shown as the landlord instead of the Manjhis
It was never the case of the appellant that the mention of the proprietor s name in the notification misled him or anyone as regards the identity of the land
We might also mention that Mr Jha learned Counsel for the appellant admitted that he could not impugn the validity of the notification if notwithstanding that the name of the landlord specified was incorrect the notification was served upon the proper landlord It is also common ground that the appellants took part in the proceedings under Ch
III so that he knew the identity of the property which was intended to be dealt with by the notification
The succeeding provisions of the enactment far from supporting the case that the correct specification of the name of the landlord is a legal pre requisite of a valid notification points to the conclusion that so far 304 as the notification is concerned the name of the landlord is not a legal requirement
For instance reference may be made to section 21 where provision is made for the issue of an order prohibiting until the date of the publication of a notification under section 29 the cutting collecting or removal of any trees in any forest
Such an order might be issued simultaneously with a notification under section 14 and the order is to be published in the neighbourhood of the forest
Provisions of this sort indicate what we have already mentioned that the emphasis in the notification is on specification of the land and not so much on who the owner or the person interested in it was
We are therefore clearly of the opinion that the learned Judges of the High Court were right in holding that the notification under section 14 did not contravene the statute
The next question that arises is whether the notification which was legal under section 14 had been properly served on the interested persons as required by the provisions of Ch
The principal point that was urged to call in question the validity of the service of the notifications was based on the fact that the notices had to be served under the terms of section 14 in the prescribed manner and that the rules which prescribed the manner of service were framed and issued only on October 21 1946 with the result that any service of notice effected before that date could not be deemed to be a proper service or a service in accordance with the rules and therefore of the statute
We might however state that it was admitted that no notices were in fact served
Any enquiry however of the validity of the service of notices required by section 14 or other provisions of the Act or the effect of the failure to serve them has been rendered superfluous by the provisions of section 2 of the Bihar Private Forests Validating Act Act XII of 1949 which enacted No proceeding or action taken under section 15 21 and 29 of the Bihar Private Forests Act 1946 or under section 15 21 or 30 of the Bihar Private Forests Act 1948 or under any other section of any of the said Acts from the respective dates of commencement of the said Acts to the date of 305 commencement of this Act shall be deemed to be invalid or shall be called in question in any Court or proceeding whatsoever merely on the ground that a copy of the notification under section 14 of any of the said Acts was not served on the landlord or that there was any defect or irregularity in the service of such notification nor shall any suit prosecution or other legal proceeding whatsoever lie in any Court of law against any servant of the crown for or on account of or in respect of any such proceeding or action taken by him The learned Subordinate Judge by a process of reasoning which we are unable to follow held that the terms of this enactment were insufficient to validate the non service of the notice on the landlord as required by section 14 and the other provisions of Ch
III of the Bihar Private Forests Act
The learned Judges of the High Court on the other hand held and in our opinion correctly that the effect of the failure to serve notices or any informality in the service of the notices required by section 14 and succeeding sections of the Act was rectified and validated by the Act
In agreement with the learned Judges of the High Court we hold that the proceedings taken under Ch
III of the Act including the notification issued under section 14 were valid and in accordance with the law and that if the Bihar Private Forests Act were valid the plaintiff could have no legal ground of complaint which he could agitate in the suit and that the suit was therfore properly directed to be dismissed
This leaves the question of the constitutional validity of the Act for consideration
It is necessary to state at the outset that under the deeds dated February 23 1946 and March 15 1946 the status of the appellant quod the Manjhis is only that of a licensee or contractor having the right to cut and remove the trees etc
and not that of a lessee
This was the conclusion reached by the Subordinate Judge on the relevant terms of the two deeds and this was apparently not even challenged in the High Court
On this basis the only provisions of the Act which could be said to directly invade the rights of the appellant are those 306 contained in Ch
III the material sections of which we have already set out
As provision is made in section 22 of the Act for the ascertainment and payment of compensation to forest contractors whose rights were either modified or extinguished the plea that there was a violation of the guarantee against acquisition by the State without compensation contained in section 2992 of the Government of India  Act 1935 would be seen to have no factual foundation
But learned Counsel for the appellant urged that the extinction of the rights of contractors under the provisions of Ch
III was really in the nature of an ancillary provision complementary to and designed to render effective the taking over of the management of private protected forests under Ch
IV to which we shall im mediately advert and that if the taking over of the management was constitutionally impermissible the provisions of Ch
III must also be struck down as un constitutional
We see force in this contention and will therefore consider the constitutional validity not so much of Ch
III as of Ch
When a private forest is declared a private protected forest under the provisions of Ch
III the provisions of Ch
IV come into operation
Section 31 with which this Chapter opens enacts 31
The control and management of every pri vate protected forest shall vest in the Provincial Government
 The management and control thus vested is to be exercised through forest officers and section 32 provides 32
The Provincial Government shall by notification appoint a Forest Officer for the purposes of each private protected forest or of a specified portion of each private protected forest
 His powers are defined by the succeeding sections and next we have section 35 which defines the limits subject to which the landlord is permitted to remove timber and other produce from private protected forests whose control vests in the Provincial Government under section 31 and section 36 enables the Collector to grant permission to the landlord to erect embankments at suitable places within the forest for the purpose of irrigating 307 the land beyond the boundaries of the said forest
The section that follows is important and so we shall set it out in full 37
The Provincial Government shall receive all revenues accruing from the working and management of a private protected forest and shall pay the whole expenditure incurred in the working and management of such forest and the landlord of such forest or any other person shall not be entitled to make any objection to any expenditure that the Provincial Government may consider it necessary to incur on such working and manage ment
 Section 38 requires the Provincial Government to maintain the revenue and expenditure account with an obligation to supply an extract of the yearly account to the landlord of such forests
The disbursement of the revenues which it receives or the income which it collects under section 37 is provided for by section 39 which runs 39
1 The Provincial Government shall during the period of its control and management of any private protected forest pay at prescribed intervals to the landlord of the forest a an allowance calculated on the total area of the forest as determined by the Conservator of Forests at the rate of one anna per acre per annum or such higher rate not exceeding one anna and six pies per acre per annum as the Provincial Government may from time to time by general or special order determine and b the net profits if any accruing from the working and management of the forest 2 For the purpose of calculating the net profits the total expenditure incurred on the working and management of the forest shall be adjusted against the total income from the working and management up to the date of account and the amount of any deficit shall be carried forward with interest at the prescribed rate from year to year till such amount is made up and surplus is effected
    308 and section 40 which might be termed a residuary provision reads 40
The rights of right holders in a private protected forest shall be exercised in accordance with the rules
 It is only necessary to add that the provisions contained in the re enacted Act IX of 1948 are substantially identical except as to variation in the numbering of the sections and it is therefore unnecessary to cumber this judgment with a reference to the corresponding provisions of that enactment
In the main the argument of Mr Jha learned Counsel for the appellant on this point was based on the reasoning contained in the judgment of a Special Bench of the Patna High Court in M D Kameshwar Singh vs State of Bihar 1 where the learned Judges held the Bihar State Management of Estates and Tenures Act 1949 to be ultra vires of the powers of the Provincial Legislature as contained in the Government of India Act 1935
The Act there impugned was one which was described as an Act to provide for the State Management of estates and tenures in the Province of Bihar
Provision was made for Government notifying any estates or tenures in the Province and on such notification the management of the estate or tenure was to vest in an officer designated by the Act
On such management being taken over the power of the proprietor or tenure holder to manage the estate was to cease and he was rendered incompetent to deal with or have any right to create interests in the property by way of mortgage or lease
The rents and profits accruing from the estate were to be payable to and to be collected by the Manager who alone was under the statute competent to grant valid receipts therefor
There were special provisions empowering the Manager to order the removal of mortgagees or lessees in possession by virtue of agreements with the proprietor or tenure holder
Special provisions were also made for dealing with the claims of creditors both secured and unsecured
Section 205 of the Act made provision for the disposal of the 1 Patna 790
309 income rents and profits received by the manager
They were to be applied first for the payment of revenue to Government then to municipal rents next to costs of management and supervision then for an allowance to the proprietor to be fixed by rules made by Government and any surplus remaining thereafter was to be paid to the proprietor at the end of each financial year with power however to the manager to retain such portion of the surplus which he might consider necessary as a working balance for the ensuing year
The manager was to have power to contract loans on the security of the estate or tenure
The jurisdiction of the civil courts was barred in respect of matters for which provision was made by the Act
Though there was a direction that the manager should have his accounts audited with a right to the proprietor or tenure holder to inspect these accounts in cases however where these accounts were not audited the right of the proprietor was merely to draw the attention of the Government to the lapse with however a bar on enforcing such rights by resort to the courts even in the event of the Provincial Government not taking any action
The validity of the enactment was challenged principally on two grounds 1 that an Act of this sort which deprived the proprietors and tenure holders of possession of their property for no default on their part and for no justifiable reason grounded on public interest was beyond the legislative competence of the Province 2 that even if competent it amounted to an acquisition of property without compensation and for a purpose which was not a public purpose so as to be repugnant to the provisions of section 2992 of the Government of India Act 1935
Justice Shearer and Justice Sinha as he then was were of the opinion that the Act in question was beyond the legislative competence of the Province under item 21 of the Provincial Legislative List
Justice Das as he then was being the other learned Judge constituting the Special Bench however took the view that the variety of matters set out in Entry 21 of the Provincial Legislative List was wide enough to include legislation of 40 310 the type then before the Court
Both Sinha and Shearer JJ
were of the opinion that the Act violated the requirements of section 2992
Learned Counsel Mr
Jha submitted that there was under the Bihar Private Forests Act 1946 and 1948 the same type of deprivation of possession and management of the proprietor or tenure holder the same restrictions placed upon enjoyment and a similar vesting of powers and duties on the officers of the State Government as the manager of the estate under the Bihar Act of 1949 and on these premises he contended that on the same line of reasoning the Act now impugned should be held to be both beyond the competence of the Provincial Legislature as well as unconstitutional as violating the requirements of section 2992 of the Government of India Act 1935
Before entering on a discussion of the points urged we should add that the constitutional validity of the Acts now impugned has been the subject of decision of the Patna High Court on two occasions and these judgments are reported in Sm
Khemi Mahatani vs Charan Napit 1 and KBN Singh vs State 2
In both of them the learned Judges of the High Court have distinguished the decision in Kameshwar Singh vs State of Bihar 3 and have upheld the validity of the Acts now impugned
Learned Counsel for the appellant formulated three points in support of his plea regarding the invalidity of the impugned enactment and its application to the petitioner 1 that the Bihar Private Forests Acts of 1946 and 1948 were beyond the competence of the Provincial Government not being within the legislative entries in the Provincial Legislative List in Sch
VII of the Government of India Act 1935 2 that even if tile legislation was competent in the sense of being covered by the entries in the List the same was unconstitutional as being in contravention of the constitutional requirements of section 2992 of the same Act 3 that even if the legislation were competent and also constitutionally valid under the Government of India Act 1935 its provisions could not be enforced 1 AIR 1953 Patna 365
2 Patna 69
3 Patna 790
311 against the petitioner after the Constitution came into force on January 26 1950 as the provisions of the enactment contravened articles 191f and 312 of the Constitution
We shall now proceed to deal with these points in that order 1 Legislative incompetence under the Government of India Act 1935
The argument of learned Counsel on this head was half hearted and was based on reliance on passages in the judgment of the Special Bench of the Patna High Court in Kameshwar Singh vs State of Bihar1
It is not necessary for the purposes of this case to canvass the question as to whether the taking over for better management of an estate in the manner as was done by the Bihar Act of 1949 is or is not within item 21 of the Provincial Legislative List in Sch
VII to the Government of India Act 1935
The enactments now impugned are certainly in relation to forests and fall within item 22 of the Provincial Legislative List which reads 22
Forests
It is not necessary to decide whether entry 21 dealing with Land etc
 would cover legislation on forests because of the special provision in Entry 22 in relation to forests an entry which has come down from the Devolution Rules under the Government of India Act 1919
In our opinion the item Forests would permit all and every legislation which in pith and substance to use a phrase familiar in this branch of the law was on the subject of forests
It is not possible to argue that the two Acts here impugned do not satisfy this test
Learned Counsel faintly suggested that item 22 Forests  would not cover legislation regarding management of forests
We consider this submission wholly without substance
The considerations arising from the width or amplitude to be attached to the meaning of expressions dealing with the conferment of legislative power occurring in a constitutional document should suffice to reject this submission
In this connection we might refer to the decision of the Federal Court in Administrator Lahore Municipality vs Daulat Ram Kapur 2 which dealt with the scope 1 1950 1 L R 29 Patna 790
2 312 of the entry Salt  in the Central Legislative List in Sch
Besides reference may be made also to the legislative practice which preceded the Government of India Act 1935 as having relevance to the understanding of the scope and ambit of the entry
The Indian Forests Act of 1878 which repealed the earlier enactments and consolidated the law in relation to the control over forests primarily dealt with forests which were the property of the Government or in which Government had proprietary rights
But it had also a chapter Ch
VI dealing with control on forests or land not being the property of the Government
Section 35 of the Act enabled the local Government by a notification in the local official gazette to regulate the maintenance of forests for particular purposes and pass orders in that behalf and section 36 enacted that in case of neglect of or wilful disobedience to such regulations and what is more important if the purposes of any work to be constructed under section 35 so require the local Government may after notice in writing to the owner of such forest or land and after considering his objections if any place the same under the control of a Forest officer and may declare that all or any of the provisions of the Act relating to reserved forests shall apply to such forest or land
The net profits if any arising from the management of such forest or land shall be paid to the said owner
 Statutes with similar provisions were also enacted by various local Legislatures vide for example Madras Forests Act 1882
This Central enactment of 1878 was repealed and re enacted in a consolidated form by the Indian Forests Act 1927
Chapter V of the later statute sections 35 and 36 thereof reproduce in practically the same terms the provisions of the Act of 1878 in relation to the taking over the management of private forests
As we are now dealing with the legislative power in this regard we are not so much concerned with the grounds upon which the Government could take over and manage forests belonging to 313 private proprietors as with the practice of the Government taking over the management of the forests if public interests so require
This interest might vary from time to time but the above legislation would show that if public interest did require the Act authorized Government to take over the management of private forests on terms of making over the income received to the proprietor
It is unnecessary to dilate upon the role of forests in a country whose economy is predominantly agricultural and it has been this aspect that has prompted the legislation to which we have just now adverted
Apart from being an important source of fuel and of raw materials necessary for domestic industrial and agricultural purposes their preservation is essential for the development of cattle wealth by providing grazing grounds
Their function in the conservation of soil fertility and in the maintenance of waterregime by improving the filth and the water holding capacity of the soil cannot be exaggerated
They protect the land against excessive soil erosion caused either by rainfall or against a desiccation and erosion by winds
Their beneficial influence on the growth of crops and on the maintenance of an equitable climate cannot be over stressed vide First Five Year Plan p 285
Thanks to the inroads made on forestwealth owing to the necessities created by the war we had the spectacle of large forest areas denuded of their timber afforestation making either a slow progress or not attempted at all
So long as the war continued the sacrifice of the forests was one of the incidents which the country had to bear as part of the war effort but owing to the high prices of fuel and timber the practice of denudation of forests which started during the wartime continued and landholders owning private forests sought to make quick gains by leasing out their forests for large scale cutting
In these circumstances public interest and national economy required that this process should be stopped and the ravages caused by wartime destruction should be made good by scientific management and regulation of forests and by a process of afforestation
It was 314 in these circumstances that in several Provinces of India during the year 1946 when these Provinces were under the rule of Governors under section 93 of the Government of India Act 1935 enactments were passed vesting in Government power to take over and manage for the purposes abovementioned areas of forest lands belonging to private persons
The situation therefore demanded that there should be a large extension of the grounds upon which such private forests would be taken over for better management by the State officials as compared with Ch
V of the Indian Forests Act 1927
The correlation between Bihar Act III of 1946 now impugned and the Indian Forests Act 1927 is brought out in the long title of the former the operative words of which are repeated in the preamble An Act to provide for the conservation of forests which are not vested in the Crown or in respect of which notifications and orders issued under the Indian Forests Act 1927 are not in force
 The impugned Act was therefore an Act supplementary to or rather a complement of the Indian Forests Act of 1927 and is clearly covered by the Entry Forests  in item 22 of State Legislative List
The argument therefore that Entry 22 enabled a legislation to be passed in relation to forests but did not include therein the power to assume management and control of forests belonging to private proprietors is entirely without foundation
In view of what we have just now stated it would follow that the argument concerning the legislative competence to enact the Bihar Acts of 1946 and 1948 must be rejected
The next submission to be considered is whether the impugned enactments violate section 2992 of the Government of India Act 1935
Section 2992 runs in these terms 2992
Neither the Federal nor a provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking 315 unless the law provides for the payment of compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which it is to be determined
 The main if not the entire argument of learned Counsel for the appellant on this point was vested on certain passages found in the decision of this Court in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning  Weaving Co Ltd 1
The validity of the law that was there considered was a post Constitution enactment Act XXVIII of 1950 dated April 10 1950 which replaced an Ordinance issued in January 1950
The rights of the appellant before this court had to be considered in the light of the guarantees contained in Part III of the Constitution
Under the provisions of the enactment there impugned the management of the Sholapur Spinning  Weaving Co Ltd was taken over by the Government and the question that was debated was whether this taking over amounted to an acquisition such as is referred to in article 312 of the Constitution in these terms 312
No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compensation provided by that law is not ade quate
 Mahajan J as he then was who delivered the majority decision of the Court in dealing with this point expressed himself in these terms The next contention of the learned counsel that the word acquisition  in article 312 means the acquisition of title by the State and that unless the State becomes vested with the property there can be no acquisition within the meaning of the clause 1 316 and that the expression taking possession  connoted the idea of requisition cannot be sustained and does not to my mind affect the decision of the case For the proposition that the expression acquisition  has the concept of vesting of title in the State reliance was placed on the opinion of Latham C J in Minister of State for the Army vs Dalziel     
Latham C J made the following observations The Commonwealth cannot be held to have acquired land unless it has become the owner of land or of some interest in land
If the Commonwealth becomes only a possessor but does not become an owner of land then though the Commonwealth may have rights in respect to land which land may be called property the Commonwealth has not in such a case acquired property 
The majority of the Court held otherwise and expressed the opinion that the taking by the Common wealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within the meaning of section 51 xxxi of the Constitution
This is what Rich J said representing the majority opinion It would in my opinion be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorizing the acquisition of a citizen s full title except upon just terms it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely on any terms it chooses or upon no terms at all  the expression acquisition  in our Constitution as well as in the Government of India Act is the one enunciated by Rich J and the majority of the Court in Dalziel s case
With great respect I am unable to accept the narrow view that acquisition  necessarily means acquisition of title in whole or part of the property
 Learned Counsel naturally relied on the reference to 317 the provisions of the Government of India Act contained in the above passage
Before we deal with this argument however we consider it proper to refer to the judgment of this Court in State of West Bengal vs Subodh Gopal Bose 1 which was composed of four of the Judges who formed the bench in the case of Dwarkadas Shrinivas etc
supra and in which judgment was delivered almost at the same time December 17 and December 18
In the West Bengal case the leading judgment was delivered by Patanjali Sastri C J Mahajan J merely expressing his concurrence stating that the principles enunciated by the learned Chief Justice were the same as those which he had formulated in the Sholapur case
It is because of this context that the manner in which this point was dealt with by Patanjali Sastri C J assumes more importance
It was urged before the Court that the meaning of the word acquired in the phrase taken possession of or acquired  in article 312 as it then stood connoted nothing more than and was intended to confer the identical guarantee as was contained in section 2992 of the Government of India Act 1935 which had used the expression acquired  the words taken possession of  being added merely to overcome the decisions which had held that requisitioning of property was not within the constitutional protection
It was therefore urged that the words acquired  or taken possession of  implied that the legal title in the property passed to the State and could not be taken to signify or include forms of deprivation of private property which did not involve the element of the passing of title to the State
Repelling this argument the learned Chief Justice said I see no sufficient reason to construe the words acquired or taken possession  used in clause 2 of article 31 in a narrow technical sense
The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters particularly those relating to fundamental rights and it cannot be assumed that the ordinary 1  41 318 word acquisition  was used in the Constitution in the same narrow sense in which it may have been used in pre Constitution legislation relating to acquisition of land
These enactments it should be noted related to land whereas article 312 refers to moveable property as well as to which no formal transfer or vesting of title is necessary
Nor is there any warrant for the assumption that taking possession of property  was intended to mean the same thing as  requisitioning property  referred to in the entries of the Seventh Schedule I am of opinion that the word acquisition  and its grammatical variations should in the context of article 31 and the entries in the Lists referred to above be understood in their ordinary sense and the additional words taking possession of  or requisitioning  are used in article 312 and in the entries respectively not in contradiction of the term acquisition  so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired The expression shall be taken possession of or acquired  in clause 2 implies such an appropriation of the property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner
 It would be seen from the extracted passages in the two judgments that the reference to the meaning of acquired in section 2992 of the Government of India Act 1935 made by Mahajan J as he then was in Dwarkadas Shrinivas 1 was but an incidental remark
by way of orbiter and was not and was not intended to be a decision regarding the scope or content of that section
If support were needed for this position reference may be made to the observations of Das Acting C J in Bhikaji Narain Dhakras vs The State of Madhya Pradesh 2
The learned Chief Justice said Prior to the Constitution when there were no fundamental rights section 2992 of the Government of India Act 1935 which corresponds to article 31 had 1  2  319 been construed by the Federal Court in Kunwar Lal Singh vs The Central Provinces and in the other cases referred to in Rajah of Bobbili vs The State of Madras and it was held by the Federal Court that the word acquisition  occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose s case  to that word acquisition appearing in article 312 in the light of the other provisions of the Constitution During the years when the Government of India Act 1935 was in operation the Privy Council had no occasion to pronounce upon the meaning of section 2992 but we might however usefully refer to the recent decision of the House of Lords in Belfast Corporation vs O D Cars Ltd 1 where the I louse had to consider the import of the expression take any property  occurring in a similar context in the Government of Ireland Act 1920 X  XI George V Ch 67 section 51 where the relevant words were In the exercise of their power to make laws neither  the Parliament of Northern Ireland shall make a law so as to either directly or indirectly   take any property without compensation
 The facts in the case before the House of Lords were that the respondent who carried on business as garage proprietors and general motor engineers made an application to the appellant for the grant of permission to erect certain factories and shops on its land
This was refused on the ground that the height and character of the proposed buildings would not be in accordance with the requirements of the zone in which the site was situate
The respondent thereupon claimed compensation for injurious affection on the ground that its property had been taken
The Court of Appeal of Northern Ireland upheld the respondent s claim and the appellant Corporation brought the matter in appeal to the House of Lords
The 1 320 argument pressed before the House and which found favour with the Court below in Ireland was based on the extended meaning of the word acquired  attributed to it in the decisions of the Supreme Court of the United States which have been referred to and adopted this Court in Dwarkadas Shrinivas etc
1 and in Subodh Gopal Bose s cases 2
Viscount Simonds delivering the leading judgment observed I come then to the substantial questions what is the meaning of the word take  what is the meaning of the word Property  what is the scope of the phrase take any property without compensation   
I hope that I do not over simplify the problem if I ask whether anyone using the English language in its ordinary signification would say of a local authority which imposed some restriction upon the user of property by its owner that authority had taken  that owner s property 
He would not make any fine distinction between take  take over  or take away 
He would agree that property  is a word of very wide import including intangible and tangible property
But he would surely deny that any one of those rights which in the aggregate constituted ownership of property could itself and by itself aptly be called property  and to come to the instant case he would deny that the right to use property in a particular way was itself property and that the restriction or denial of that right by a local authority was a taking  taking away  or taking over  of property Fully recognizing the distinction that may exist between measures that are regulatory and measures that are confiscatory and that a measure which is ex facie regulatory may in substance be confiscatory  Lord Radcliffe followed on the same lines and referred in this context to Slattery vs Naylor 3 where the validity of a municipal bye law which prevented an owner from using the property which he had purchased ground for the only purpose for which it could 1  2  3 321 be used was upheld by the Judicial Committee as not amounting to depriving an owner of his property without compensation
We consider the principles laid down in the Belfast case supra apt as an aid to the construction of the content of the expression acquired in section 2992 of the Government of India Act 1935
The contention urged by learned Counsel for the appellant that the deprivation of the land holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within section 2992 of the Government of India Act 1935 must be reject ed
The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision
Property as a legal concept is the sum of a bundle of rights and in the case of tangible property would include the right of possession the right to enjoy the right to destroy the right to retain the right to alienate and so on
All these of course would be subject to the relevant law procedural or substantive bearing upon each of these incidents but the strands that make up the total are not individually to be identified as those constituting property
So understood there is no scope for the contention that the imposition so to speak of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an acquisition of the property itself within section 2992 of the Government of India Act 1935
A very minor point was urged by the learned Counsel based upon the language of sub section
5 of section 299 which reads 299 5
In this section land  includes immovable property of every kind and any rights in or over such property and undertaking  includes part of an undertaking 322 Learned Counsel suggested that the right to possession management and control over the estate was a right in or over such property and that if it was so construed the taking over of such a right would be tantamount to acquisition of land within section 2992
There is no substance in this argument because the rights referred to in section 2995 are derivative rights like interests carved by an owner a lessee mortgagee etc and not an incident of a property right regarding which we have already expressed ourselves
We therefore hold that the impugned enactments were validly enacted and are not obnoxious to the provisions of the Government of India Act 1935
There remains for consideration the third point urged that even if the Bihar Private Forests Acts 1946 and 1948 were valid when enacted the relevant provisions cannot be enforced against the appellant on the ground that the enforcement would violate the fundamental rights granted to the appellant by articles 19 and 31 of the Constitution
The argument was this The lease in favour of the appellant was for terms of 8 or 9 years and would have continued if nothing else had happened till certain dates in 1954 and 1955
He has however been deprived of the benefit of the lease by the operation of the impugned legislation and the appellant s rights which he could have otherwise enjoyed beyond January 26 1950 have been denied to him and this is tantamount to the impugned enactments operating beyond January 26 1950
In support of this submission learned Counsel invited our attention to a passage in the judgment of this Court in Shanti Sarup vs Union of India1
That case was concerned primarily with the constitutionality of an order dated October 21 1952 passed by the Central Government under section 34 of the Essential Supplies Temporary Powers Act 1946 by which the petitioner firm was dispossessed of a textile mill which they owned and managed
There had been an earlier order of the State Government dated July 21 1949 also which was similarly impugned
B K Mukherjea J as he then was who spoke for the 1 AIR 1955 SC 624 628
323 Court after pointing out that the order of the Central Government was not supportable under the terms of the enactment under which it was made and therefore had deprived the petitioner of his property under article 31 of the Constitution proceeded to add But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under article 131 of the Constitution
 We are unable to construe these observations as affording any assistance to the appellant
The lease or licence which the appellant had obtained by contract from the landholder was put an end to once and for all by virtue of the provisions contained in section 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights
That took place long before the Constitution in 1946
We have held that the legislation under which the appellant s rights were extinguished subject to his claim for compensation was a valid law
It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof
On this point also we must hold against the appellant
The result is the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
In 1946 the appellant was granted a right to cut and remove bamboos and certain other timber to be found in a specific area of the forest Village of Jun by certain persons known as Manjhis who held under a mokarari lease granted by the Raja of Ranka and whose names had been entered in the revenue records
Meanwhile the Bihar Private Forests Act 1046 was enacted and it came into force on February 25 1946
This Act was repealed and reenacted by Bihar Act 9 Of 1948
On October 14 1946 the Governor of Bihar issued a notification under sections 14 and 21 of the Bihar Private Forests Act 1946 declaring the forest of Jun as a protected forest
Though in the Schedule to the said notification against the column headed name of the proprietor the name of Raja of Ranka was entered a copy of the notification was however served on the Manjhis
Immediately on the issue of the notification the officials of the Government of Bihar prevented the appellant from working the forest any further
The appellant challenged the validity of the proceedings under the Act by filing a suit
The trial court held that the Act was valid but decreed the suit on the ground that the notification issued under section 14 was invalid primarily for the reason that the name of the Manjhis as landlord had not been mentioned in it
The High Court on appeal reversed the decree and dismissed the suit holding that the omission of the name of the Manjhis in the notification did not render the same invalid and that even otherwise the proceedings under Ch
III of the Act had been validated by section 2 of Bihar Act 12 Of 1949
Held that the Bihar Private Forests Acts of 1946 and 1948 were validly enacted and were within the Legislative compe tence of the Province under the Government of India Act 1935 and were not otherwise obnoxious to its provisions
Bihar Act 3 Of 1946 was an Act supplementary to or rather a complement of the Indian Forests Act of 1927 and was clearly 293 covered by the Entry Forests  in item 22 of Provincial Legislative List under which the Province could enact legislation not merely generally in relation to Forests but also to enable the Government to assume management and control of forests belonging to private proprietors
Such a legislation involved no violation of the guarantee against acquisition by the State without compensation contained in section 2992 of the Government of India Act 1935
Property as a legal concept was the sum of a bundle of rights and the imposition of a compulsory Governmental agency for the purpose of managing the forest with a liability imposed to account to the proprietor for the income derived as laid down by the statute was not an acquisition of the property itself within section 2992 of the Government of India Act 1935
Nor does section 2995 affect the matter
The rights referred to in it are derivative rights like interests carved by an owner a lessee mortgagee etc
and not an incident of a property right
Held further that the correct specification of the name of the landlord was not a legal pre requisite of a valid notification under section 14 Of the Bihar Act 3 Of 1946 but the emphasis was on specification of the land and not so much on the owner or the person interested in it
The proceedings taken under Ch
III of the Act including the notification issued under section 14 Of the Act were valid and in accordance with the law and the validity of the service of notices required by section 14 or other provisions of the Act could not be challenged in view of the provisions of section 2 Of the Bihar Private Forests Validating Act 1949
Held also that the legislation under which the appellant s rights were extinguished subject to his claim for compensation was a valid law which took effect in 1946 long before the Constitution came into force and the appellant had therefore no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof
MD Sir Kameshway Singh vs State of Bihar Pat
790 and Dwarkadas Shrinivas of Bombay vs Sholapur Spinning  Weaving Co Ltd   distinguished
Khemi Mahatani vs Charan Napit AIR 1953 Pat 365 KBN Singh vs State Pat 69 Administrator Lahore Municipality vs Daulat Ram Kapur  State of West Bengal vs Subodh Gopal Bose   Bhikaji Narain Dhakras vs State of Madhya Pradesh   Slattery vs Naylor and Shanti Sarup vs Union of India AIR  referred to
Belfast Corporation vs O D Cars Ltd  applied