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Ram Chandra Tripathi Vs. Divisional Forest Officer, Dudhi Mirzapur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 446 of 1961
Judge
Reported inAIR1963All480
ActsForest Act, 1927 - Sections 38B; Uttar Pradesh Forest (Amendment) Act, 1956; Constitution of India - Article 19(1)
AppellantRam Chandra Tripathi
RespondentDivisional Forest Officer, Dudhi Mirzapur and ors.
Appellant AdvocateC.S.P. Singh, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
.....already dense, we fail to see what principles of forestry would require that there should be no operations of the nature mentioned in clauses (a) to (e) in those areas, and that it should be necessary to prohibit such operations without any time limit. clearly, therefore, in respect of such areas, the notification issued by the state government would not be justified by the provisions of section 38-b of the act, as it would be impossible to hold that total prohibition of all these operations mentioned in clauses (a) to (e) must be necessary without any time limit. in the circumstances of this case we direct the parties to bear their own costs of this appeal as well as of the writ petition......be held to be unreasonable in view of the procedure laid down for publication of notice that the state government proposes to issue a notification wider section 38-b. we have found that, even if it be held that section 38-b is valid and a notification published in accordance with section 38-d does serve the purpose of conveying information to all persons concerned, this particular notification dated the 11th of march, 1961 has to be held in valid on the ground that it is beyond the scope of section 38-b of the act. 2. under section 38-b of the act the state government is empowered by notification in official gazette to regulate or prohibit in any forest: (a) the breaking up or clearing of the land for cultivation or any other purpose; (b) the firing or clearing of the vegetation; (c).....
Judgment:

V. Bhargava, J.

1. This special appeal has been filed by a petitioner who moved this Court under Article 226 of the Constitution praying for an order quashing a notification dated the 11th of March, 1961 issued by the State of U. P. under Section 38-B of the Indian Forest Act (hereinafter referred to as the Act) as amended by the Indian Forest (U. P. Amendment) Act, 1956, and for a writ of mandamus directing the respondents, the State of Uttar Pradesh and the Divisional Forest Officer and the Range Officer, to refrain from interfering with the appellant's right of felling and carrying away trees in the forest of which the appellant claimed to be a lessee. The relief was claimed principally on two grounds. The first ground was that Section 38-B of the Act was void as contravening the fundamental right guaranteed under Article 19(1)(f) of the Constitution inasmuch as it laid down an unreasonable restriction on the right of the appellant to enjoy and hold his rights as lessee in the forest in question. The second ground was that no notice was served personally on the appellant prior to the issue of the notification under Section 38-B in order to enable him to make his representation against the proposed issue of the notification.

This ground was coupled with the submission that publication of the proposed action to be taken under Section 33-B in the official gazette, in accordance with Section 38-D, did not give sufficient notice to the appellant and other persons affected by the notification, and as such it should be held that the procedure laid down in the Act itself made the restriction under Section 38-B unreasonable. It has appeared to us that in this case it is not at all necessary to go into the validity of Section 38-B of the Act or into the question whether the restriction imposed by that section should be held to be unreasonable in view of the procedure laid down for publication of notice that the State Government proposes to issue a Notification wider Section 38-B. We have found that, even if it be held that Section 38-B is valid and a notification published in accordance with Section 38-D does serve the purpose of conveying information to all persons concerned, this particular notification dated the 11th of March, 1961 has to be held in valid on the ground that it is beyond the scope of Section 38-B of the Act.

2. Under Section 38-B of the Act the State Government is empowered by notification in official gazette to regulate or prohibit in any forest:

(a) the breaking up or clearing of the land for cultivation or any other purpose;

(b) the firing or clearing of the vegetation;

(c) the girdling or tapping or burning of any tree or the stripping off of the bark from any tree;

(d) the lopping and pollarding of trees;

(e) the cutting, sawing, conversion or the removal oftrees.

Such a notification can be issued by the State Government where such regulation or prohibition appears necessary (i) forthe conservation of trees and forests; or (ii) for the improvement of grazing; or (iii) for the maintenance, increase and distribution of supply of fodder, timber or fuel or (iv) for the protection of land against erosion; or (v) for subserving the interests of the general public. The question that we have to consider is whether this particular notification dated the 11th of March, 1961 impugned in this appeal satisfies the requirements of Section 38-B.

3. Cases are well known where the law, when giving power to a Government, lays down the conditions which must be satisfied before the Government can exercise the power conferred on it, but the power has been exercised in breach of those conditions or beyond the scope of those conditions. It appears to us that the present is a case of this nature. As mentioned above, the Government under Section 38-B of the Act is given the power either to regulate or prohibit the doing of acts, mentioned in Clauses (a) to (e) above in any forest. Such regulation or prohibition is to be enforced by the State Government by the issue of a notification only when it appears to be necessary for one or more of the purposes mentioned in Clauses (i) to (v) mentioned above. Clause (a) permits the State Government to regulate or prohibit the breaking up or clearing of the land for cultivation or any other purpose. A notification containing a perpetual prohibition to persons concerned from the act of breaking up or clearing up the land for cultivation or any other purpose can be necessary for conservation of trees and forests or for other purposes mentioned in Clauses (i) to (v), but we find it very difficult to hold that a total prohibition, and that also a perpetual one, directing persons concerned to refrain from all kinds of acts mentioned above in Clauses (b) to (e) can be necessary for any of the purposes mentioned in Clauses (i) to (v). For example, if there is a total prohibition to remain effective without any time limit directing persons not to lop or pollard trees or to cut, saw, convert or remove, trees, whatever the nature of the age of the trees may be, can hardly be ever held necessary for conservation of trees or forests or for any of the other purposes mentioned in Clauses (i) to (v).

Cases may arise where it may be reasonable and necessary to prohibit all the acts mentioned in Clauses (a) to (e) for a limited period during which it may be necessary that a forest should grow in case it has already been denuded very considerably. There may also be occasions where it may be necessary to issue orders regulating the acts mentioned in Clauses (a) to (e) so that the persons concerned will only be permitted to lop or pollard trees or cut, saw, convert or remove trees of such a nature that such operations on those trees would in no way affect the proper conservation of the forests and may, in fact, on the other hand, be conducive to the maintenance of a proper forest. In the notification in question, what the Government did was to prohibit ah the acts mentioned in Clauses (a) to (e) and also laid down no time limit during which that prohibition was to remain in force. The notification governed forests situated in as many as 42 villages. No consideration seems to have been given to the fact that the various forest areas in these 42 villages may, be at the time of issue of the notification, in different conditions. In forest where the trees may have been considerably denuded it might have been necessary to prohibit the cutting of any trees in those areas. Then there might have been areas where trees might be growing very close to each other. The growth might have been very thick and the trees might also be fully grown or might have even attained that age when removal of those trees would be advisable so as to permit fresh trees to grow. In this connection we may refer to the allegations in para 14 of the counter-affidavit on behalf of the respondents themselves where it was stated that

'the area affected by the notification contains some hilly patches but the major part is covered with dense forests and contains good soil capable for plantation of forests and growing trees.'

If there are areas where the forests are already dense, we fail to see what principles of forestry would require that there should be no operations of the nature mentioned in clauses (a) to (e) in those areas, and that it should be necessary to prohibit such operations without any time limit. Clearly, therefore, in respect of such areas, the notification issued by the State Government would not be justified by the provisions of Section 38-B of the Act, as it would be impossible to hold that total prohibition of all these operations mentioned in Clauses (a) to (e) must be necessary without any time limit. Even in dense forests, the regulation of lopping and pollarding of trees or cutting, or removal of trees may still be necessary for the purposes mentioned in Clauses (i) to (v) but what the Government did in the notification dated 11th of March, 1951 was not to attempt any regulation but to impose a total perpetual prohibition. It seems that, in issuing the notification, no conscious effort was ever made by any authority on behalf of the respondents to consider what prohibitions were necessary for the purposes mentioned in Clauses (i) to (v) nor was any attention paid to the question whether there should be total prohibition or merely regulation. The notification appears to have been issued merely by copying the language from Section 38-B of the Act without applying the mind to see what type of order was necessary and should be passed. The result has been that the order contained in this notification has become totally unreasonable and cannot possibly be justified as necessary for the purposes mentioned in Clauses (i) to (v) in respect of the lands covered by the notification. In these circumstances this notification is ultra vires the provisions of Section 38-B of the Act and has to be struck down as imposing an unreasonable restriction on the fundamental right under Article 19(1)(f), a position which does hot appear to have been contemplated by the provisions of Section 38-B of the Act.

4. We may also mention that, in the course of this appeal, a point that was raised by the learned counsel for the respondents was that the appellant had no right to come and claim this relief because he had no legal right to any forests which could be recognised by courts, as he was merely claiming rights as a lessee from the previous zamindar and these rights had ceased to vest in the appellant on the enforcement of U. P. Z. A. and L. R. Act. So far as this question is concerned, we do not think that it is now open to the State Government to urge it in this appeal. This point was disputed between these very parties in an earlier writ petition No. 1761 of 1957 where it was held by a single Judge of this Court that, even after the U. P. Zamindari Abolition and Land Reforms Act came into force and governed this area, the rights as of a lessee continued to vest in the appellant. That judgment of the learned single Judge was not taken up in appeal and became final as between the parties to the present petition. That decision has, therefore, to be given effect to, and we have to proceed on the basis that the appellant continues to be a lessee under the lease granted before the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. The lease was executed on the 7th of May, 1953 which was a date prior to the date on which the U. P. Z. A. and L. R. Act was enforced in this area which forms part of land situate to the south of the Kaimur range in Mirzapur district. The period of that lease has not yet expired as it was a lease for ten years and the appellant is, therefore, entitled to claim the protection of this Court against this invalid notification issued under Section 38-B of the Act affecting his fundamental right to work the forest in accordance with the terms of the lease.

5. We consequently allow this appeal and quash the notification of the State Government dated the 11th of March, 1961 which was impugned in the writ petition. We further direct the opposite parties not to interfere with the exercise of his rights by the appellant under colour of this notification. In the circumstances of this case we direct the parties to bear their own costs of this appeal as well as of the writ petition.


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