Case: Guru Datta Sharma Vs. State of Bihar &amp; Another

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. 6,000, 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 a period of 9 years ending March 1, 1955 for a consideration 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.4. Meanwhile the Governor of Bihar who had, by proclamation issued by him under S. 93 ofthe 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 Act III 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provisions and of the similar provisions in the Bihar Private Forests Act, 1947 (Bihar Act IX of 1948), by which it was repealed and re-enacted, that form the main subject of controversy in this appeal.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 Governors 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 Actrights 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 thiswere other restrictions on 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 comprised Ss. 13 to 30 dealt with "private protected forests" which were defined in S. 3(10) as a forest specified in a notification issued under sub-s. (1) of S. 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 S. 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 S. 15, the Forest Settlement Officer was required by S. 16 to publish a proclamation in the village in the neighbourhood 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 S. 16 unless the officer was satisfied that the same was not made for sufficient cause. Section 29(1) When the following events have occurred, namely : -(a) the period fixed under Section 16 for preferring 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 case 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 subsectionpending 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 contracts with any other person conferring on the latter the right to out, collect or remove trees, timber or other forest produce after the issue of a notification under S. 14. Having thus dealt with the landlord, S. 21 proceeded to enact a similar ban to have effect between the date of the notification under S. 14 and the formal constitution of "a private protected forest" by a notification under S. 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.5. There are other provisions which are material for the points raised in this appeal but to these we shall advert later.6. To resume the narration of facts, there was issued on October 14, 1946 a notification under Ss. 14 and 21 under Bihar Act III of 1946 of which the operative wordsexercise of the powers conferred by S. 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 notification, present to the Deputy Collector of Palamau an application in writing stating his objection to the said forest being constituted a private protectednotification contained a further paragraph containing a direction purporting to be by virtue of the power contained in S. 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 S. 29 of the Act." In the Schedule 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.7. Immediately on the issue of this notification the officials of the respondent-State prevented the appellant, from working the forest any further.8. 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 S. 93 ofthe 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 re-enacting the Governors Act. This enactment came into force on March 3, 1948 and its terms, subject to immaterial variations, were identical with those contained in the Governors 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 appellant 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.9. Having failed in these proceedings under the Act, the appellant filed the suit which has given rise to the present appeal T. S. 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 appellants contract was granted by the Government, as the second defendant. 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 rested on: (1) The Forest Acts of 1946 and 1948 were constitutional and void as being in contravention of the provisions ofthe 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 S. 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.10. Based on these grounds, the reliefs sought in the plaint were set out in para. 17 and of these 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. 55,000/- being the estimated damages suffered by the plaintiff by reason of the wrongful acts of the Government, (3) restoration of possession of the forest lands included in the two deeds, and (4) for mesne profits.11. The learned Subordinate Judge who tried the suit, though he held the Act valid, accepted the plaintiffs contention that the notifications issued under S. 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 S. 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 1/2 months for which he had worked the jungle before his enjoyment was interfered in October 1946. In this view the claim for damages for Rs. 55,000/- and for mesne profits was disallowed.12. 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 S. 2 of Act XII of 1949 to whose terms we shall refer in the 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 Art. 133(1) (a) 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. 3(2) of the Supreme Court Rules for permission to urge additional grounds in support of the appeal which we granted.

Court's reasoning:
15. 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 as the notification is concerned the name of the landlord is not a legal requirement. For instance, reference may be made to S. 21 where provision is made for the issue of an order prohibiting, until the date of the publication of a notification under S. 29, the cutting, collecting or removal of any trees in any forest. Such an order might be issued simultaneously with a notification under S. 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 S. 14 did not contravene thelearned 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 S. 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 S. 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 S. 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 therefore properly directed to berents 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 20(5) of the Act made provision for the disposal of the 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 anyis not necessary for the purpose 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 tothe 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 thisconsider 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 Lahore Municipality v. Daulat Ram Kapur, 1942 FCR 31: (AIR 1942 FC 14) which dealt with the scope of the entry Salt in the Central Legislative List in Sch. VII.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 S. 299(2) ofthe Government of India Act,contention urged by learned Counsel for the appellant that the deprivation of the landholder 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 S. 299(2) ofthe Government of India Act,1935 must be rejected. 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 test, 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 S. 299(2) ofthe Government of India Act,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 S. 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 appellants 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. In this point also we must hold against the appellant.