Case: State Of Bihar Vs. Lt. Col. K. S. R. Swami

or other forest produce of the said forest...... except as provided in Rr. I, II and III. Rule 8 under which the Collector gave permission runs 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 Rule 4 and Rule 8; for, while under Rule 4 no cutting, conversion or removal of trees can be made except under license issued under Rule 3 or permission granted by the Forest Officer under Rule 2 or under the provisions of Rule 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.14. On behalf of the appellant-State Mr. Jha argued that Rule 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 Rules 1, 2 and 3 and only stumps of those trees are standing that the Collector can give permission for clearing the forest land or breaking it up for cultivation. We are unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to the Collector.15. It is obvious that while Rules 1, 2, 3 and 4 were made under Clauses a, b, c and d of S. 32, Rule 8 has been made under Cl. g of S. 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 Rr. 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 Rr. 1, 2, 3 or 4 but only by R. 8.That seems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. 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 Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 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 the 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.17. 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 Indian Forest Act, 1927, must prevail over the permission given by the Collector. It is to be noticed that whereas S. 30 empowers the State Government inter alia to prohibit such breaking up or clearing for cultivation of any land in a protected forest, S. 32 empowers the State Government to make rules to regulate inter alia "the clearing and breaking of land for cultivation or any other purpose" in a protected forest. Even if the legislature had 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 S. 34 of the Act 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 under S. 32, or except as regards any portion of a forest closed under S. 30, or as regards any rights the exercise of which has been suspended under S. 33, in the exercise of any right recorded under S. 29."18. It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in 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 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, there is no force in this contention.It is abundantly clear that the notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries, procedure and appeals". Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. They have to be completed and it is only after their completion that a notification can be made by the Government under the main part of the section. On a reasonable reading of the section it is therefore abundantly clear that even where the Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under S. 16 for preferring claims (i) has not expired; (ii) claims under Ss. 16 and 22 have not been disposed of; (iii) the periods limited by S. 27 for appealing from the orders passed in respect of those claims have not elapsed and (iv) all appeals preferred against such orders have not been disposed of.10. Turning now to S. 19 of this Chapter we find it laying down that "rights (other than landlords 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 enquiry under S. 17, shall be extinguished, unless, before the notification under S. 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under S. 16.This argument is in our opinion wholly unacceptable. Considered in the background of the provisions in the Act for claims to be made under S. 16, for enquiry into these by the Forest Officer and thereafter for appeals from the decision of the 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 landlords 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 after the final notification is made. It is to be noticed that three months time from the date of the proclamation 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 cause for not preferring the claim within the period fixed under S. 16.The question of thus satisfying the Forest Settlement 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 beenare unable to persuade ourselves that in making these rules the Government intended to give such limited authority only to theseems to us to be the only way of harmonious construction of Rr. 4 and 8 and that must, in our opinion, have been intended by the rule-making authority.16. 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 Rr 1 to 4 had no application and R. 8 under which the Collector acted applied. It may be mentioned here that though R. 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 the 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.It follows clearly and necessarily from S. 34 that the prohibition by notification of the clearing of land would be ineffective where such clearing is being made in accordance with R. 8 of the Rules made under S. 32.19. All the contentions raised in the appeal therefore fail. We are of opinion that there is no legal authority for the State Government to interfere with the clearing or cultivation of land by the respondent which is proposed to be done in accordance with the written permission granted by the Collector under R. 8 of the Protected Forest Rules, 1953.20. It appears that through some oversight the High Court ordered the issue of a writ of certiorari, though a writ in the nature of mandamus was prayed for. It is clear that the appropriate writ in the circumstances of the present case is a writ in 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 10, 1954 and restraining the Government and the Forest Officer from interfering with the petitioners possession over 245.69 acres of land in village Singpur which he possesses as tenant.