1. These are two petitions under Article 226 of the Constitution by the zamindars of Hemgir and Sarapgarh in Gangpur State (which is now merged in the State of Orissa) against the following notification issued by the Government of Orissa under Section 80 of the Indian Forest Act, 1927.
The 6th April, 1950.
No. 3991-R.: In exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 80 of the Indian Forest Act, 1927 (XVI of 1927), the Go-verner of Orissa is pleased to direct that the forests of the zamindaris of Gangpur State in the district of Sundargarh mentioned in the schedule annexed hereto shall be managed by the Government of Orissa in the Forest Department with effect from the 15th April, 1950 as the Government is interested jointly with the respective Zamindars in the forest and waste-land and the produce thereof.
1. Nagra Zamindary
2. Hemgir Zamindary
3. Sarguoali Zamindary
4. Sarapgarh Zamindary
5. Hathibari Zamindary
6. Raibogra Zamindary II
Whereas the State Government of Orissa has undertaken the management of the forests of zamindaris in the Gangpur State in the district of Sundargarh in pursuance of Clause (a) of Sub-section (1) of Section 80 of the Indian Forest Act, 1927 (XVI of 1927);
Now, therefore, in exercise of the powers conferred by Sub-section (2) of the said section of the saidAct, the Governor of Orissa is pleased to declarethat provisions of Chapters II and IV of the saidAct shall apply to the said forests, waste-landsand produce thereof with effect from the 15thApril, 1950.
By order of the Governor
Sd/- P. C. Das
Secretary to Government.'
2. Sub-section (1) of Section 80 of the Indian Forest Act runs thus:
Management of forest, the jointproperty of Government and other persons.
(Old Act.8. 79.)
80. (1) If the Government and anyperson be jointly interested in any forest or waste-land, or in the whole orany part of the produce thereof, the Provincial Government may either-
(a) undertake the management' of such forest, waste-land or produce, accounting to such person for his interests in the same; or
(b) issue such regulations for the management of the forest, waste-land or produce by the person so jointly interested as it deems necessary for the management thereof and the interests of all parties therein.
3. Mr. Mohanty on behalf of the petitioners contended that Sub-section (1) of Section 80 had absolutely no application inasmuch as the forests within the zamindaris of Hemgir and Sarapgarh were the exclusive properties of the zamindars and that the Government were not 'jointly interested' in the forests or waste-lands within the said zamindaris or in the whole or any part of the produce thereof. He therefore urged that the said notification was invalid and inoperative and that the further action taken by the Government in taking possession of the said forests on the authority of the said notification was unlawful.
4. Gangpur was one of the Native States of India prior to its merger with the Province of Orissa on 1-1-48 and the Ruler of that State exercised limited sovereign powers subject of course to the general supervision and control of the then Crown Representative. The powers of the Ruler devolved on the Government after the merger and the Indian Forest Act was also in due course applied throughout the State of Gangpur. The learned Advocate General submitted that the Ruler of Gangpur and (after the merger) the Government have always exercised some sort of supervision and control overthe management of the forests within the zamindaris of Gangpur State Including Hemgir and Sarapgarh and that the said control and supervision would amount to 'joint interest' for the purpose of applying Section 80(1) to the forests within the zamindaris of the two petitioners. He therefore contended that the said notification and further action taken on the basis of it were valid.
5. The main question for decision therefore turns on the meaning to be given to the expression 'jointly interested' occurring in Sub-section (1) of Section 80. Do those words mean joint proprietary interest or pecuniary interest in the forests or their produce or else do they also include the right of a Ruler to supervise and control the management of the forests within his State?
6. At the outset I must point out that in the counter-affidavit filed on behalf of the Government it was not claimed that either the Ruler of Gangpur or his successor, namely, the present Government had any proprietary or pecuniary interest in the forests situate in Hemgir and Sarapgarh or in the produce thereof. Apart from this total absence of any such claim there is unchallenged documentary evidence on record to conclusively establish the petitioners' exclusive claim to the proprietary rights in the forests within their zamindaris. It is true that in the last century there were frequent disputes between the then Ruler of Gangpur and the zamindars within his State as regards their respective proprietary rights over the forests situate within their zamindaris. This question came for decision before the Commissioner of Chhotanagpur in C. F. No. 277 on the 29th of June, 1891 when rival claims were put forward by the zamindars and the Ruler of Gangpur for the compensation payable during the construction of the Bengal Nagpur Railway. The railway line runs through the zamindaris and some materials from the forests within the zamindaris were utilised for the construction of the railway line. The Raja of Gangpur claimed exclusive Jungle rights not only in his own Khalsa lands but also within the zamindaris of his State. The then Commissioner Mr. W.H. Grimley in his judgment, after giving the history of the origin of the zamindars, came to the following conclusion:
'The above extracts and remarks show that the Zamindars of Nagra and Hemgir and other zamindars of Gangpur were regarded by a former Commissioner not only as possessing permanent rights in their zamindaris, but as having full and exclusive rights over the jungles in their Estates. They seem to be the original settlers of the soil and their position appears to be analogous to that of the Mankis in Lohardaga and Manbhum, who as aboriginal chiefs, or heads of clans holding groups of twelve or more villages exercise jungle rights and are independent of the superior Raja or Zamindar, a creature of subsequent growth.'
He therefore directed that the compensation in respect of materials supplied from the forests of the zamindaris should be paid to the zamindars and not to the Ruler. In subsequent settlement operations of Gangpur State this decision was taken as an authority to support the exclusive proprietary rights of the zamindars in the forests within their zamindaris. In the recent report on Land Tenures and the Revenue System of the Orissa and Chhatisgarh, States by Mr. R.K. Ramadhyani published in 1949 the following passage is found while referring to the zamindaris in Gangpur State :
'There are four zamindaris, viz, Nagra, Sargipalli, Sarapgarh and Hemgir........The question offorest rights arose acutely in connection with the agreement entered into by the Raja with the Bengal Nagpur Railway Co. in 1891. It was ruled that the zamindars of Hemgir and Nagra had permanent rights in their zamindaris and the Ruler had no right to the forests or to levy a royalty onforest produce. In respect of forests as well as minerals which are the two important matters apart from land, disputes between the State and the zamindars have resulted in the decision that they are entitled to all rights over forests in their zamindaris and have rights over minerals also in the proportion of 6 annas: 10 annas (the latter amount goes to the State. A certain amount of control is exercised by the State over the management of the zamindari forest and though they have the full rights, they are expected to manage the forest in accordance with the existing rules.'
Thus it is well-established that neither the Ruler of Gangpur, before merger nor the Government of Orissa after merger has any proprietary or pecuniary interest in the forests of the petitioners, nor did they ever put forward such a claim after the decision of the Commissioner of Chhotanagpur in 1891.
7. I may now discuss the nature of the control and supervision which the Ruler of Gangpur was exercising over the forests of the petitioners. On the 4th of February, 1937 the then political Agent of Sambalpur in his letter no. F. 50-WS/37 addressed to the Forest Advisor, Eastern States, Sambalpur pointed out that the zamindar of Hemgir had full powers over the management of his zamindari, subject to his referring the cases of important leases of forest produce for the advice of the Forest Advisor as regards the advisability of giving such leases and their terms. He further pointed out that the zamindar's power over forest matters was not restricted and that it was not necessary for him to obtain sanction for sale of forest produce. In 1942, however, there was some correspondence between the Ruler of Gangpur and the Political Department of the Government of India regarding the management of zamindari forest and after obtaining the approval of the Crown Representative, the Ruler issued a circular dated 16-9-1942.
'Circular': With the approval of His Excellency the Crown Representative, the Darbar lay down the following policy for the management of zamindari forests in this State:
(a) It is recognised that in all matters of forest policy the Zamindar must be subject to control by the Darbar. This control will be technical and will not interfere with the existing rights of zamindars to derive certain revenues from their forest and to conduct their management under supervision.
(b) The management of all zamindari forests and the control of the entire forest staff should normally be in the hands of the Darbar; the forest should be inspected as part of the State forest by the Forest Advisor and a share of the cost of management; (sic) his inspection note on the forest should be given to the Darbar and not to the zamindar although the latter would have a right to obtain a copy from the Darbar.
(c) Since sales and leases form an integral part of forest management the control of these matters should rest with the Darbar. All leases whether for timber, bamboos or minor produce should be subject to the sanction of the Darbar if the term exceeds two years. Sales exceeding a value of Rs. 500/- should be similarly subject to the Darbar's sanction. Where individual zamindars have shown their competence to manage their forests efficiently these restrictions may be relaxed in accordance with the merits of the case. It is, however, of paramount importance that no contract of lease for large timber or bamboos should be granted without the previous sanction of the Darbar.
(d) No zamindar should be permitted to reserveany forest or to disforest any area once it has been reserved. This power should rest solely with the Darbar. No clearing of village forests for the extension of cultivation should be permitted without the Darbar's sanction and no considerable clearing should be permitted for any reason until the Darbar has received a report from a responsible state forest officer.
(2) The policy outlined above is therefore communicated to ail the zamindars of the State forcareful guidance. For any infringement of thepolicy the Darbar will have good grounds to proceed against them and initiate any proceedingswhich the Darbar consider desirable to implementthe policy.
Regent Rani Sahiba.
No. 7441-47, dated 16-9-1942.
Copy forwarded to the Zamindar of Hemgir,Nagra, Sarapgarh, Manager, Nagra, Manager Sargipalli and Manager Hatibari and Forest OfficerKhalsa for future guidance.
Regent Rani Sahibs.'
This Circular was issued by the Ruler in his capacity as sovereign of the State and laid down the policy for management of forests in the State. The control was expressly referred to as being 'technical' and that it would not
'interfere with the existing rights of zamindars to derive certain revenues from their forests and to conduct their management under supervision.'
In para 4 of the supplementary counter-affidavit of the Government it is stated that 'technical control' referred to in Clause (a) of the said Circular means 'reservation, preservation and development of the forest.' It is true that the Ruler required that his sanction should be obtained if any lease exceeded the term of two years and any sale of the forest produce exceeded Rs. 500/-. This sanction was however required not because the Ruler had any proprietary or pecuniary interest in the forest but solely with a view to conserve the forest wealth of the State. At that time the Government of India also were exercising powers under the Indian Forest Act in the territories of what was then known as 'British India' for conserving the forest whether they belonged to the Government or to private parties. This Circular appears to have been obeyed by the petitioners and other zamindars. But I am unable to find any evidence in the subsequent conduct of the zamindars or the Ruler challenging the proprietary right of the zamindars over their forests and their produce. With the merger of Gangpur on 1-1-1948 with the then Province of Orissa the powers of the Ruler devolved on the Government and after the application of the Indian Forest Act to Gangpur state the Government could undoubtedly exercise the powers conferred on them by that Act over the forests of the zamindars in Gangpur State.
8. Sub-section (1) of Section 80 of the Forest Act contains the following marginal heading.
'Management of forest, the 'joint property ofGovernment and other persons.'
The sub-section, however, says that if the Government and any other person be 'jointly interested' in any forest or waste-land or in the whole or any part of its produce the Government may take action under that sub-section. The words 'joint property' used in the marginal heading are not however found in the sub-section. It was, therefore, urged that the interest contemplated in Sub-section (1) of Section 80 may be wider than proprietary of pecuniary interest and may also include the control over management which the Ruler of Gangpur was exercising over the forest of the petitioners by virtue of the aforesaid Circular of 1942. I am however unable to accept this contention chiefly because the control exercised by the Ruler as specified in the aforesaid Circular seems to be derived from his position as sovereign of the State and it had nothing to do with his having any interest in the forests or their produce. Ordinarily, the expression 'interest' when used with reference to any property such as forest or its produce refers to the proprietary or pecuniary interest and it cannot refer to the general controlling power of a sovereign of a country over all property situate within his State. The marginal heading makes the position clear by using the words 'joint property.' This marginal heading was originally found in the Indian Forest Act of 1878 (old Section 79) and it has been reproduced in the later Act of 1927. If the other provisions of the Forest Act be carefully scrutinised the general scheme appears to be to divide all forests in a state into the following three classes:
(i) Forests which are the property of the Government or over which the Government have proprietary rights or the whole or any part of the forest produce to which the Government are entitled (See Section 3); (ii) Forests which are not the property of the Government (See Section 35); and (iii) Forests in which the Government and a private party are jointly interested (See Section 80).
As regards the 1st class of forests Government have the right to reserve under Chapter II of the Forest Act or the right to set apart village forests under Chapter III or to constitute protected forests under Chapter IV. As regards the 2nd class of forests the provisions of Chapter V confer on the Government the power of control and as regards the last class, the power of the Government is described in Section 80. The power of a sovereign to control the utilisation of the forests and other national assets of his state, by laws or orders issued by the competent authority, is not disputed. If such control by the Ruler be sufficient to hold that he is Jointly interested in the forests within the meaning of Section 80(1) the provisions of Chapter V becomes mostly redundant, it cannot be assumed that the Legislature would have made so many elaborate provisions in Chapter IV for controlling forests in which the Government have no property right at all if such forests also come within the scope of Section 80(1).
9. Though there is no direct authority on the construction of Section 80 of the Forest Act there is an old decision of the Madras High Court reported in 'Ashtamurthi v. Secretary of State', 13 Mad 322, while construing a similar provision occurring in Section 33 of the Madras Forest Act, 1882 which seems somewhat helpful. Section 33 of the Madras Act is as follows:
Management of forests, 33. If the Government andthe joint property of Government any persons are jointly interestedand other persons. in any forest or wasteland, or in thewhole or any part of the producethereof, the Government mayeither -- (a) undertake the management of such forest, waste-land or produce, accounting to such persons for his interest in the same; or
(b) issue such regulations for the management of the forest, waste-land or produce by the persons so jointly interested, as it deems necessary for the management thereof and the interests of all parties therein.
When the Govt. undertakes, under Clause (a) of this section, the management of any forest, waste-land or produce, it may, by notification in the official Gazette and in Official Gazette of the district, declare that one of the provisions contained in Chapters II and III of this Act shall apply to such forest, waste-land or produce, and thereupon such provisions shall apply accordingly.'
The marginal heading and Sub-section (1) of Section 80 of the Indian Forest Act are identical with the first part of Section 33 of the Madras Act. In the Madras case referred to above, the question for decision was whether the Government as mortgagee of the forests which belonged to a private party (mortgagor) could have claimed Joint interest in the forests with the mortgagor for the purpose of exercising the powers under Section 33. The High Court answered this question in the affirmative and said:
'We see no reason to differ from the construction put by both the lower (sic) on the term 'jointly interested' occurring in Section 33 of the Madras Act V of 1882. The words used may not be (as a term of art) altogether appropriate, but the section appears to us clearly to refer to cases in which Government have a partial or limited interest in a forest along with a private individual, and this is precisely the state of affairs which on the terms of the lease put before us exists in this case.'
10. For the aforesaid reasons I am satisfied that Section 80 of the Indian Forest Act is wholly inapplicable to the forests of the petitioners and the notification of the Government of Orissa (No. 3991-R. dated the 6th April 1950), issued under that section is invalid and inoperative and further action taken on the basis of the said notification cannot be supported. In this case it is unnecessary for us to point out the appropriate section of the Forest Act or of any other law under which Government may have power to take action for the management of the petitioners' forests. This is a matter for the Government to decide in consultation with their law officers.
11. The Government should however give up possession of the forests to the petitioners forthwith and pay costs. Hearing fee is assessed at a consolidated fee of five gold mohurs.
12. I agree.