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Mohd. Karrar Ali and ors. Vs. the State of U.P. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. (O.J.) No. 11 of 1953
Judge
Reported inAIR1954All753
ActsConstitution of India - Articles 19(1), 19(5), 31(2) and 226; Uttar Pradesh Private Forests Protection Act, 1949 - Sections 3(3), 12 and 13
AppellantMohd. Karrar Ali and ors.
RespondentThe State of U.P.
Appellant AdvocateS.D. Misra, Adv.
Respondent AdvocateB.K. Dhaon and ;B.N. Roy, Advs.
DispositionPetition allowed
Cases ReferredChintamanrao v. State of Madhva Pradesh
Excerpt:
.....a national asset of great value. which are well known as such so that anybody reading the notification would, know that the notification refers to those forest lands......area, a 'forest' has been denned in the u. p. private forests act as meaning any land which the state government by notification declares to be a forest for the purposes of this act. the notification issued by the state government to which our attention has been drawn is in these terms:'the governor is pleased to declare all foresfc lands in utter pradesh other than those mentioned in section 2 of the said act to be foreste for the purposes of the said act.' this presupposes that there are certain forest lands in the u. p. which are well known as such so that anybody reading the notification would, know that the notification refers to those forest lands. the definition of the word forest on the other hand is that 'forest' means any land which the state government has declared to be a.....
Judgment:

Malik C.J.

1. This is an application on behalf of three minors that they have been cultivating portions of two plots Nos. 4458 and 4471 in village Ailra, tahsil Utraula, district Gonda, since 1948, and a patta was executed in their favour in August 1951, that in March, 1952, when certain labourers and servants of the applicants were felling certain mahua trees, the District Forest Officer took exception under the provisions of the U. P. Private Forests Protection Act, 1948 (6 of 1949) and prevented them from cutting down trees or from cultivating the portion of the land which had been under cultivation since 1948.

2. It is urged that the Act is ultra vires as it offends against the provisions of Article 31, Clause (2) and Article 19, Clause (1)(f) of the Constitution. In the affidavit it was said that this land was banjar land and the notification No. 1927/XIV-134-47 dated 3-1-1949, by which the U. P. Government declared all forest lands in Uttar Pradesh to be forest for the purposes of the said Act, was an invalid notification inasmuch as it did not specify the area which was to be treated as forest land, A counter-affidavit was filed in which it was denied that this was banjar land and it was said that these two plots along with several other plots were situated in a forest area to which the U. P. Private Forests Act applied. It was also urged that these plots had a large number of trees on them and they were forest land and were not brought under cultivation in 1948 as was stated in the affidavit in support of the application.

In paragraph 5 of the counter-affidavit it was mentioned that 7.07 acres of land was brought under cultivation by the aforesaid minors in 1359F., that is, after 3-6-1949, when the U. P. Private Forests Act, 1948. had come into force and this was done without obtaining the previous permission of the Forest Officer as required by Section 7 of the Act. That the applicants, therefore, had no right to cultivate the said plots.

In the rejoinder affidavit, it was mentioned that the applicants had been paying rent for the portions brought under cultivation and had paid rent as late as 20-6-1953. It was again asserted that they had been in cultivation since 1948 and that Tribeni Prasad qanungo, who had inspected the plots and had made his report on 26-2-1952. had found on the spot that 5 acres of rabi crops were standing, that the rest of the land had been ploughed and that he had been informed by some villagers that the land was under cultivation for about four years. An additional counter-affidavit has also been filed on behalf of the opposite party in which it is said that the trees standing on the two plots in dispute are about 33.000 in number. (3) The two points urged before us were that the applicants were entitled to cut the trees and the ..Forest Officer had no right to prevent them from cutting the same. This argument was advanced on two grounds, firstly, that the whole Act was bad under Article 31(2) of the Constitution and secondly that even if there was no question of appropriation of the rights of the applicants or of taking possession of the property and the Act merely imposed restrictions then the restric-tions were unreasonable and under Article 19(1)(f) of he Constitution the restrictions must be deemed to be bad. The second point raised was that the applicants were entitled to cultivate the land already under cultivation and the Forest Officer had no right to prevent their doing so. Both these points can be easily disposed of.

4. As regards the second point, the real dispute relates to a question of lact, the applicants' contention being that the land was under cultivation since 1948, that is, before the notification, to which Section 7 of the Act did not apply while the contention of the opposite party is that the land was brought under cultivation after 3-6-1949, and the action, therefore, was illegal in view of Section 7 of the Act. The applicants claim that they were tenants of the two plots and their tenancy rights have been recognized by Government and the Government have been realizing rent from them.

Learned counsel for the applicants does not deny that if his clients are tenants of these plots they have a right under the general law to go to the appropriate Court for relief. That Court would be in a better position to decide the question of fact in dispute as to whether the land was brought under cultivation before 3-6-1949 or afterwards. As the applicants have another suitable and effective remedy, it is not necessary for us in this writ petition to decide whether they have the right to cultivate the portion of the land which had already been under their cultivation.

5. The other point raised by learned counsel was that the Act is in contravention of the provisions of Article 31(2) and is, therefore, invalid. Reliance is placed on a decision of the Supreme Court in -- 'Charanjit Lal Chowdhury v. Union of India'. AIR 1951 SC 41 (A), wherein Mr. Justice Mukherjea discussing the meaning of the word 'property' as used in Article 31 of the Constitution expressed the opinion that it does not necessarily mean a totality of the rights which the owner-ship of the object connotes and the question whether a person has been dispossessed from the property depends upon the answer to the question whether he has been dispossessed substantially from the rights held by him or the loss is only in regard to some minor ingredient of the pro-prietarv right.

Reliance was placed on a decision of the High Court of Australia in -- 'Minister of State for the Army V. Dalziel'. 68 CLR 261 (B). The case before the Australian High Court was entirely distinguishable. There the exclusive possession of property for an indefinite period had been taken by the Commonwealth of Australia under regulation 54 of the National Security Regulations and the question was whether this amounted to acquisition of property. The case before the Supreme Court is also distinguishable from the case before us. In that case bv an Ordinance the Central Government had notified that they could appoint as many persons as they thought fit. as directors of a company and in case thev appointed certain directors, the powers of the directors elected by the share-holders, the functions of the managing agents and the rights of the share-holders men- tioned in detail in para 36 would cease. It was pointed out bv the learned Judge that the shareholders still had the right to transfer their rights and to get the dividends nn their shares. It was, therefore, held that the Ordinance did not amount to dispossession of the share-holders of their rights in the company.

We have looked into the provisions of the U. P. Private Forests Act and we cannot say that the provisions of this Act can be said to be bad be-because of Article 31(2) of the Constitution. Article 31(2) of the Constitution provides that

'No property, movable or immovable, includin'g any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired 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.'

6. There is no question in this case of either possession or acquisition of the rights of the applicants. The U. P. Private Forests Act was passed, as its preamble shows, for the conservation of forests and groves and for afforestation of waste lands, which were not vested in the Government. It cannot be denied that the denuding of the country-side of trees and extensive overfelling causes great national loss as forests are not only a national asset but they prevent erosion of soil and also help in the increase of rainfall. With that object in view, the State Legislature passed an Act which is in line to some extent with the Central Act, the Indian Forests Act (16 of 1927). Private owners have not been divested of any of their rights in forests, groves or trees. All that the Act provides is that they cannot cut, collect or remove timber without the permission of the Forest Officer. The restrictions imposed are all subject to permits being given by the Forest Officer. The property remains the property of the owner. His right to transfer the same is left intact. Certain restrictions have, however, been imposed on the exercise of ownership in the larger public interest. It cannot be said that the provisions of the Act amount either to a dispossession of the owners or to the acquisition of property of private owners by the State. Article 31(2), therefore, has no application at all.

7. Learned counsel has urged in the alternative that the provisions of the Act are bad being in contravention of the provisions of Art, 19(1)(f) of the Constitution. Article 19(1)(f) provides that all citizens shall have the right to acquire, hold and dispose of property. It is subject, however, to Clause (5) that the State can impose reasonable restrictions on the exercise of any of the rights conferred bv the sub-clause in the interest of the general public. It is urged by learned counsel that some of the restrictions imposed by the section cannot be said to be reasonable restrictions. He has relied on the case of -- 'Chintamanrao v. State of Madhva Pradesh', AIR 1951 SC 118 (C), for the definition of the words 'reasonable restrictions'. The only restriction with which we are concerned in this case is the restriction against the felling of trees. It is not possible to hold that the State was not entitled to impose restrictions against the indiscriminate felling of trees in forests and groves when it is now well-known that such forests are a national asset of great value. In our view the. State was entitled to see that there is no indiscriminate cutting down of trees in order to sell the wood and tret money before the landlords lost their zemindari rights and the trees or the forests vested in the State. Section 12 of the Private Forests Act lays down that:

'A' Forest Officer may on the application of the landlord grant a felling licence for the felling of trees for such purpose and with such conditions as he may deem proper and thereupon it shall be lawful for the landlord to carry out felling in accordance with the terms of the fell-ling licence.'

Section 13 of the Act provides that

'The Forest Officer may direct any owner of a notified forest to prepare within a specified period a working plan in the prescribed manner for the management of the forest.'

A study of these provisions makes it clear that the only object behind the restriction was to see that the forest wealth of the country is not denuded by the shortsighted policy of some of the owners. We are not called upon in the case to express any opinion whether any harm would be done to the national wealth if restrictions are not imposed on the gathering of forest produce. That question has not been raised.

8. We are, therefore, of opinion that the provision of the Act restricting the right of an owner, or a transferee from him. to fell a tree is not unreasonable especially as there is no absolute restriction and he has been given a right to obtain a permit from the Forest Officer.

9. After we had heard learned counsel on the first two points, a point was raised on which it may be necessary to have a little more information. In para 9 of the affidavit, it is mentioned that notification No. 1927/XIV-134-47 dated 3-1-1949 is invalid and ineffective as no forests have been specified therein. This paragraph has not been specifically answered in the counter-affidavit. In the counter-affidavit the paragraphs of the affidavit have not been answered paragraph by paragraph. It is, however, said in the counter-affidavit that these two plots including a number of other plots are a forest area, A 'forest' has been denned in the U. P. Private Forests Act as meaning any land which the State Government by notification declares to be a forest for the purposes of this Act. The notification issued by the State Government to which our attention has been drawn is in these terms:

'The Governor is pleased to declare all foresfc lands in utter Pradesh other than those mentioned in Section 2 of the said Act to be foreste for the purposes of the said Act.'

This presupposes that there are certain forest lands in the U. P. which are well known as such so that anybody reading the notification would, know that the notification refers to those forest lands. The definition of the word forest on the other hand is that 'forest' means any land which the State Government has declared to be a forest. From this general notification it is impossible to say what particular piece or pieces of land have been declared by the State Government to be forest for the purposes of the Act. We find in the Central Act that the form of the notification is given in S, 4 and it is as follows:

'Whenever it has been decided to constitute any land a reserved forest, the Provincial Government shall issue a notification in the official gazette

(a) declaring that it has been decided to constitute such land a reserved forest;

(b) specifying as nearly as possible the situation and limits of such land, and

(c) appointing an officer (hereinafter called 'the forest settlement officer') to enquire into and determine the existence, nature and extent of anv rights alleged to exist in favour of any person in or over any land comprised within such limits, or in or over any forest produce, and to deal with the same as provided in this Chapter.'

10. It is not possible to say what is the land to which the notiiLcation No. 1927/XIV-134-47 dated 3-1-1049 referred to above applies. Learned counsel for the State has referred, to certain directions contained in the 'Revenue Manual and to certain other orders passed by the Forest Department but we think it would be more satisfactory if he were asked to file a complete and full affidavit to indicate how ths notification applies to these particular plots that are in question in this case. It may be shown whether this notification applies to this land and if there are other notifications, a reference to those notifications should also be given. We allow learned counsel three weeks' time to file an affidavit and to supply a copy of it to the learned counsel for the other side who may file an affidavit in reply within a week of the receipt of the affidavit.

SUBSEQUENT ORDER

Malik, C.J.

11. On 30-9-1953, we dictated a long order and dealt with the various points' raised in this writ petition. Towards the end of the hearing, learned counsel had raised a new point that the plots in question were not 'forest' land as there was no notification issued by the Government declaring them to ba 'forest'' land.' We then pointed out that in the U. P. Private Forests Act, 1948, 'forest' has been defined as meaning 'any land which the State Government may, by notification, declare to be a forest for the purposes of this Act'. We gave the counsel for the State time to file a further affidavit giving reference to the notification by which the laud in question had been declared to be 'forest'. A counter-affidavit was filed on behalf of the State on 13-10-1953, and reference is made in paragraph 5 of this affidavit to a Government Notification No. 517/XIV, dated 11-10-1952, bv which the area of 274.3 acres of land existing in Ailra has been notified as a private forest.

This notification which was published in the U. P. Gazette, Part I, page 1179, and is dated 11-10-1952, was in the exercise of the powers con-ferred by Section 117, U. P. Zemindari Abolition and Land Reforms Act, 1950 (U. P. Act I of 1951). Section 3. Sub-section (3) of the U. P. Private Forests Act, 1943, with which we are concerned defines 'forest' as meaning any land which the State Government may bv notification declare to be a 'forest for purposes of this Act'. So unless the notification makes it out that the land is declared to be a forest for the purposes of the U. P. Private Forests Act, 1948, the land cannot be treated as 'forest' and the provisions of the Act cannot be made applicable to it. We are, therefore, of the opinion that the District Forest Officer, Gonda, had no jurisdiction to act under the U. P. Private Forests Act. 1948, and prevent either the cutting of the trees or taking forcible possession of the timber that had been cut.

12. We, therefore, issue a direction under Art, 228 of the Constitution that the opposite party is not entitled to act under the U. P. Private Forests Act, 1948, as the provisions of that Act are not applicable to the two plots Nos. 4458 and 4471, with regard to which no notification has yet been issued by the State Government declaring them to be forest land for purposes of the U. P. Private Forests Act, 1948.

13. We make no order as to costs.


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