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State of Assam Vs. Dilbahadur Basar Chetri - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantState of Assam
RespondentDilbahadur Basar Chetri
Excerpt:
.....of boundary after creation of the reserved' forest. duke of rutland (1893) 1 qb 142. 13. in england trespass to land was a criminal offence punishable by fine and imprisonment as well as redressable by an action for damages, until 1694. but now-a-days trespass is never criminal except under special statutes which make it punishable. when a statute defines trespass, the ingredients thereof shall have to be satisfied and notice may be included. 381): it is clear from a perusal of the section that a notification under this section is essential for the purpose of declaring a forest a reserved forest and that such notification must specify precisely the limits of the forest and the date from which the forest is constituted. this clearly indicates that he had the knowledge that the area..........or abuses his right to pass and re-pass. (harrison v. duke of rutland (1893) 1 qb 142.13. in england trespass to land was a criminal offence punishable by fine and imprisonment as well as redressable by an action for damages, until 1694. but now-a-days trespass is never criminal except under special statutes which make it punishable. in india criminal trespass has been defined in section 441 i.p.c. and some special statutes also make it punishable. the regulation is one such statute prescribing penalty for trespass. the quantum of damage caused is relevant only for enhanced penalty.14. a trespasser is liable whether he knows or does not know that he has no right to be there. the contention that no one can be liable for trespass unless he has notice that he is trespassing is not.....
Judgment:

K.N. Saikia, J.

1. The Government appeals from the judgment acquitting the respondent of charges under Sections 24/25,of the Assam Forest Regulation, 1891 (shortly, 'the Regulation').

2. P. W. 1-Shri Haren Barua, a Forester, accompanied by P. W. 2-Abdul Kuddus, Forest Beat Officer; P. W. 3-Frofulla Chandra Bora, Game Watcher, P. W. 4-Hemendra Phukan, Game Watcher; and Sri Ghana Kanta Gayan, Range Officer (not examined), visited Roumari area of Panpur Reserved Forest and found the respondent growing mustard over ten bighas of reserved forest land. The Range Officer arrested the respondent on his failure to produce any document on demand, seized the mustard seeds; and, after investigation of the case by P. W. 1, offence report was submitted through the Divisional Forest Officer of Darrang District, on receipt whereof charges under Sections 24/25 of the Assam Forest Regulation were explained to the respondent who pleaded not guilty.

3. The prosecution examined four, while defence examined one, witness at the trial. The prosecution contended that the respondent trespassed, cleared, broke up, cultivated and grew mustard seeds upon 10 bighas of Panpur Reserved Forest land and thereby committed offences under Sections 24/25 of the Regulation, The defence plea was that the Roumari was 'chapari' land and the respondent had been living there since a pretty long time; that his father died upon that land and he inherited it; that he had no notice that the land was included in forest reserve.

4. The Panpur Forest was constituted into a reserved forest in the year 1971 by Gazette Notification dated 9th Dec, 1971 (Ext. 3). Prior to that the Roumari area, now included in the Reserved Forest', was inhabited by people but they were evicted after creation of the reserved forest. P. W. 1 did not know whether any demarcation was made after creation of that reserved forest. P. W. 3 saw the accused-respondent within the reserved forest on 8-2-74 and reported the matter to his officers, From P. W. 2 it may be taken that the area was 'chapari' land before creation of the reserved forest and that the accused-respondent was upon that land. P. W. 2, however, says that the respondent was previously evicted from the same land after constitution of the Panpur Reserved Forest. Ext. 3 shows, that the Government issued the Notification constituting the Panpur Reserved Forest under Section 17 of the Regulation, after expiry of the period of enquiry arid, disposal of the claims and all rights and titles of the persons interested were extinguished by Ext. 3. D. W. 1 did not know whether, the Panpur area fell with in the forest, reserve, but he admitted that the Forest Department, demolished their houses. Respondent's house was also demolished.

5. The learned trial court, however held that the prosecution failed to prove that Section 19 of the Regulation was complied with; that the prosecution had not produced any specific evidence that the land occupies by the accused (respondent) had been included in the reserved forest; that Ext. 2 (the map) was of little help in this regard; and accordingly acquitted the respondent purportedly under Section 245 Criminal P.C. Hence this appeal. Section 24 of the Regulation reads:

24. Penalties for trespass or damage in reserved forests-Any person who in a reserved forest -

(a) Trespasses or pastures cattle, or permits cattle to trespass, or

(b) causes any damage by negligence in felling any tree or cutting or dragging any timber,

shall be punished with fine which may extend to fifty rupees, or, when the damage resulting from his offence amounts to more than twenty-five rupees, to double the amount of such damage.

This section clearly prohibits trespass upon reserved forest land. Even pasturing cattle or permitting cattle to trespass are prohibited. It is not denied that the accused-respondent grew mustard over ten bighas of land. Cultivation of mustard seeds could not have been possible without trespassing and allowing cattle to trespass upon the said reserved forest land.

6. Under Section 25 of the Regulation, any person who makes any fresh clearing prohibited by Section 7, or clears or breaks up any land for cultivation or any other purpose, shall be punished with imprisonment for a term which may extend to six months (or with fine, which may extend to five hundred rupees, or with both). The word 'clearing' means something in the nature of the removal of trees or shrubs (Emperor v. Venkenna Prabhu (1903) ILR 26 Mad 470. In Nagowarii v. Emperor AIR 1929 Nag 190 : 1930-31 Cri LJ 708, where the accused had been cultivating the land in question for some seven years at least and the probabilities were that his father had done the same, before him, it was observed that the land must be held: to have been occupied land and not to-have been forest or waste land, unless this was properly established; and that in a case under Section 26(1)(h) of the Indian Forest Act; (which is pari materia with Section 25(f) of the Regulation) the onus of proof was on the prosecution. In Deb Ram v. State : AIR1952All33 , it has been observed that the words 'clearing or breaking up of land' do imply, the idea' of clearing'or...breaKmg'up land which have not been cleared Or broken up already. They cannot mean cultivating land which had already been cleared or broken up, In Nagowani's case it 1939 31 Cri LJ 708 (Nag) (supra) it has been held that where the charge against the accused is that he had made an encroachment on the Government forest land the onus is on the prosecution to establish that the land forms part of the Government forest. In Matroo Khan v. State 1961 (1) Cri LJ 593 (All) it has been observed that the dictionary meaning of the word 'clearing' does not confine the operation of its use to clearing for cultivation alone. The first meaning is the ad of making clear and when a piece of land is being denuded of trees, the land is being made clear by removal of the trees. The intention or the purpose of such clearance need not be probed; only the act is to be seen or assessed. Where trees are removed from a piece of land it certainly falls within the meaning of the word 'clearing', and, therefore, it would be doing no violence to the language used in Section 5 or 26 of the Indian Forest Act in holding that the act of cutting away the trees was the act of clearing. Section 5 of the Indian Forest Act corresponds to Section 7 of the Regulation which bars accrual of forest rights after proclamation under Section 6.

7. In the instant case the evidence shows that the respondent had been cultivating the land for some years. He had been evicted earlier in 1973. Even thereafter he claims to have been cultivating the land. Under such circumstances it may not be reasonable to find him guilty of clearing or breaking up any land for cultivation or any other purpose. To clear land means to cut down trees, shrubs, etc. before cultivating; to remove obstruction. A land already under cultivation may not necessitate clearance of trees or obstacles. The learned Public Prosecutor does not dispute this position.

8. Mr. P.C. Gayan, the learned Counsel or the respondent, however, submits that he committed no trespass as he had no notice that the area was included in the reserved forest; and that the prosecution has failed to prove any demarcation of boundary after creation of the reserved' forest. Secondly, he submits, as he had been living there since his boyhood and' had no knowledge about the land being constituted into a reserved forest; he committed no trespass under Section 24 of the Regulation.

9. Under Section 24(a) of the Regulation, any person, who in a reserved forest, trespasses, or pastures cattle, or permits cattle to trespass, shall be punished. The word 'trespasses' in this section has not been used in the sense it is used in Section 441 I.P.C. which defines criminal trespass as 'whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'.

10. From the language of Section 24 of the Regulation it appears that though the words 'fine', 'offence', and 'punished' have been used, the concept of trespass is of the nature of a tort or civil wrong rather than that of a crime. This is also indicated by the expression 'when the damage resulting from his offence amounts to more than twenty-five rupees'. Therefore, the additional ingredients required for a criminal trespass under Section 441 I.P.C. will not be necessary.

11. In the law of tort, as Salmon points out, the term 'trespass' has been used in three senses of varying degrees of generality: (1) 'In its widest and original signification it includes any wrongful act, any infringement or transgression of the rule of rights'; (2) In a narrower signification to mean 'any legal wrong for which the appropriate remedy was a writ of trespass as already defined viz. any direct and forcible injury to person, land, or chattels'; and (3) The narrowest signification of the term, viz., 'the tort of trespass to land (trespass quareclausum fregit)'. In the Regulation it is used in this sense of trespass to land.

12. Trespass to land, according to Winfield, is unjustifiable interference with possession of it. Trespass is actionable per se, i.e., without any proof of special damage. As Blackstone commented (iii), 209-210), 'Every invasion of property, be it ever so minute, is a trespass'. Though trespass 'quare clausum fregit', i.e.; alleges that the plaintiff's 'close' has been broken; there was never any need to prove that any physical thing had been broken 'For every man's land is in the eye of the law enclosed and set apart from his 'neighbour's and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary existing only in the contemplation of the law, as when one man's land adjoins to another in the same field'. One who goes on land without invitation of any sort and whose transgression is either unknown to the proprietor, or if known, is practically objected to, is a trespasser, as was held by Lord Dunedin in Addie v. Dumbreck 1929 AC 358. A person crossing the land of another by reason of a right of way may nevertheless be a trespasser if he exceeds or abuses his right to pass and re-pass. (Harrison v. Duke of Rutland (1893) 1 QB 142.

13. In England trespass to land was a criminal offence punishable by fine and imprisonment as well as redressable by an action for damages, until 1694. But now-a-days trespass is never criminal except under special statutes which make it punishable. In India criminal trespass has been defined in Section 441 I.P.C. and some special statutes also make it punishable. The Regulation is one such statute prescribing penalty for trespass. The quantum of damage caused is relevant only for enhanced penalty.

14. A trespasser is liable whether he knows or does not know that he has no right to be there. The contention that no one can be liable for trespass unless he has notice that he is trespassing is not tenable. When a statute defines trespass, the ingredients thereof shall have to be satisfied and notice may be included. In the absence of such a statutory definition no notice would be necessary.

15. It is, however, for the prosecution to prove the boundary of the land. Ext. 3 is a copy of the Gazette Notification No. FOR/SETT/671/66/PU/22 dated 9th Dec, 1971 issued in exercise of the powers conferred by Section 17 of the Regulation, by which the Governor of Assam was pleased to declare the land described in the schedule thereto to be Reserved Forest with effect from the date of its publication. The schedule shows the approximate area as 4530.00 Hectares, and the name of the reserved forest as 'Panpur Reserved Forest' in Chilabandha Mouza, Naduar Circle, Tezpur Sub-Division of Darrang District. The boundaries described are; (a) North-Dyke (E. and D) Embankment, (by East, A demarcated line from the (E. and D.) Dyke to Brahmaputra river, (c) South-Northern bank of Brahmaputra river, (d) West-Ghiladhari river.

16. The details of the boundary line are also given in the notification, with reference to pillars and other landmarks.

17. Ext. 2 is the map of the Panpur Reserved Forest countersigned by the Divisional Forest Officer, Darrang Division, which not only shows the boundary but also the encroached area. The respondent has not denied the location of the encroached area. In face of the above evidence the learned trial court has not been justified in holding that the prosecution has not produced any specific evidence that the land occupied by the accused and the other people in Roumari area has been included in the Reserved Forest, and that Ext. 2 is little helpful to the prosecution as it reveals nothing.

18. The trial court, appears 'I have refused efficacy to the Notification under Section 17 on the ground of non-compliance of Section 19 of the Regulation. Section 17 of the Regulation is to the following effect:

17. Notification declaring forest reserve-

(1) When the following events have occurred, namely-

(a) the period fixed under Section 6 for preferring claims has elapsed, and all claims, if any, made within such period have been disposed of by the Forest Settlement Officer, and

(b) if such claims have been made, the period fixed by Section 15 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, and.

(c) all lands, if any, to be included in the proposed reserved forest which the Forest Settlement Officer has under Section 11, elected to acquire under the Land Acquisition Act, 1870 (Act X of 1870), have become vested in the Government under that Act,

the State Government may publish a notification in the official Gazette, specifying the limits of the forest which it is intended to reserve, and declaring the same to be reserved from a date fixed by such notification.

(2) From the date so fixed such forest shall be deemed to be a reserved forest.

19. Section 19 of the Regulation provides for publication of translation of such notification in neighbourhood of forest, and under it, 'The Deputy Commissioner of the district in which the forest is situate shall, before the date fixed by such notification, cause a translation thereof in the language of the country to be published in the manner prescribed for the proclamation under Section 6. Section 17 of the Regulation corresponds to, and is almost the same as, Section 20 of the Indian Forest Act. Section 19 of the Regulation is similar to Section 21 of the Indian Forest Act prior compliance of Sections 19 and 21 is not necessary for issue of notifications under Sections 17 and 20 of the Regulation and the Indian Forest Act, respectively. Once the notification under Section 17 of the Regulation, which corresponds to Section 20 of the Indian Forest Act, is issued it takes effect immediately, and the area becomes a reserved forest from the fixed date. As was observed in Bhagwan Sahai v. Divisional Forest Officer, Hazaribagh AIR 1947 Pat 264 : 1946-47 Cri LJ 992. It is only on the issue of a notification under Section 20 of the Forest Act (Section 17 of the Regulation) that a particular forest becomes a reserved forest as contemplated by the Forest Act, On the issue of a notification under Section 4, Forest Act (which corresponds to Section 5 of the Regulation), new rights cease to accrue and Government no doubt acquires certain rights over the forest in question. The forest, however, does not become a reserved forest until a notification under Section 20 of the Act is issued.

20. It has been held in Gola Ho v. Emperor AIR 1946 Pat 51 : 1947-48 Cri LJ 148, by Meredith and Imam JJ. that until the conditions mentioned in Section 20, Forest Act, have been fulfilled, a forest cannot be deemed to be a reserved forest and it is only from the date fixed by the notification mentioned in Sub-section (1) of that Section that a forest is deemed to be a reserved forest.

21. In Mansid Oraon v. King : AIR1951Pat380 , where the prosecution had not produced the notification, if any, issued under Section 20 of the Indian Forest Act, 1927, it was observed (at p. 381):

It is clear from a perusal of the section that a notification under this section is essential for the purpose of declaring a forest a reserved forest and that such notification must specify precisely the limits of the forest and the date from which the forest is constituted. The prosecution has, by oral evidence, endeavoured to prove that the land in question falls within certain boundary pillars. Presumably it was intended to imply that these were the boundary marks referred to in Sub-section (1) of Section 20, It may be that they are so; but for the purpose of proving the guilt of the petitioners it is necessary to show not only that they did the acts mentioned in Clauses (f) and (h) of Section 26(1) but also that they were not entitled to do those acts because there had been a notification issued under Section 20(1) specifying the limits of the forest and that the land in question fell within those limits.

22. In the instant case the notification was produced and proved which specified the boundaries; and the map showed the area to have been within those boundaries. What the defence wanted to show was that the respondent had been in occupation of the encroached area for a pretty long time. It has not, however, been denied that the accused-respondent was evicted from that land previously also after it was constituted into a reserved forest. This clearly indicates that he had the knowledge that the area was included within the reserved forest; and in face of the notification, (Ext. 3), he could not have acquired any right over that land. Besides, he was once evicted. The trial court was not justified in insisting on the proof of compliance of Section 19 which need not have preceded the issue of notification under Section 17; and the efficacy of the notification would not be affected by the failure on the part of the prosecution to prove the compliance of Section 19.

23. For the reasons discussed above it cannot be said that the learned trial court took a reasonable view in holding that the prosecution had failed to prove its case beyond all reasonable doubts. The impugned judgment of acquittal is accordingly set aside and the respondent is convicted under Section 24 of the Regulation and he is punished with a fine of Rs. 50/- (Rupees fifty only) in the absence of any proof that the damage resulting from the offence amounted to more than twenty-five rupees.

The appeal is allowed.

T.C. Das, J.

24. I agree.


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