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Tintus Kharia and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 192 of 1951
Judge
Reported inAIR1952Ori258; 18(1952)CLT276
ActsForest Act, 1927 - Sections 76; Orissa States Order, 1948; Extra-Provincial Jurisdiction Act, 1947
AppellantTintus Kharia and anr.
RespondentState
Appellant AdvocateS.K. Ray, Adv.
Respondent AdvocateG.B. Mohanty, Adv. for ;Govt. Adv.
DispositionConviction set aside
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........revision is against the conviction of the petitioners for certain forest offences committed in bamra state sometime in july 1949, and the sentence of fine passed by the sub-divisional magistrate of kuchinda. their appeal against the conviction and sentence was dismissed by the sessions judge of sambalpur.2. village lepaikani, babejore and laidaguna in bamra state form part of sadharan forest of the state. it is alleged that the petitioners felled some green trees of the reserved species from these villages and thereby committed an offence under rule 43 (a), (b), (f), & (g) of the rules for the preservation and management of the bamra state forests, including zamindari areas. it was further alleged that they prepared the land for cultivation within the protected forest area of village.....
Judgment:
ORDER

Narasimham, J.

1. This revision is against the conviction of the petitioners for certain forest offences committed in Bamra State sometime in July 1949, and the sentence of fine passed by the Sub-Divisional Magistrate of Kuchinda. Their appeal against the conviction and sentence was dismissed by the Sessions Judge of Sambalpur.

2. Village Lepaikani, Babejore and Laidaguna in Bamra State form part of Sadharan forest of the State. It is alleged that the petitioners felled some green trees of the reserved species from these villages and thereby committed an offence under Rule 43 (a), (b), (f), & (g) of the Rules for the Preservation and management of the Bamra State forests, including Zamindari Areas. It was further alleged that they prepared the land for cultivation within the protected forest area of village Laidaguna and thereby committed an offence under Rule 8 (I) (i) of the said Rules.

3. The main, point of law Urged by Mr. Ray on behalf of the petitioners, is that with the merger of Bamra State with the old province of Orissa on 1.1.48, the Forest Rules made by the former Ruler of Bamra State ceased to be in force and that consequently the conviction and sentence, passed on the petitioners for contravention of any of the provisions of the said Rules, was invalid.

4. On 1-1-48, the State of Bamra merged with the Province of Orissa, and the then Provincial Government, in exercise of the powers, conferred on them by Section 4 of the Extra-Provincial Jurisdiction Act, 1947, made an Order, known as, Administration of Orissa States Order, 1948, applying several laws in force in British India to the State of Bamra and other merged States. The second schedule to that order contains a list of the various Acts applied to those States and the Forest Act, 1927, is one of the Acts mentioned in that Schedule. Paragraph. (4) (a) of that Order says :

'The enactments specified in the first column of the Second Schedule hereto annexed shall, so far as circumstances admit and subject to any amendments to which the enactments are for the time being generally subject, in the territories to which they extend apply to all Orissa States and any provision of any law in force whether substantive or procedural and whether based on custom and usage or statutes, in any of the Orissa States, which is repugnant to any provision of the said enactment shall to the extent of the repugnancy, cease to have effect from the date of commencement of this Order.' Sub-para (b) of paragraph 4 may also be quoted: 'As respects to those matters which are not covered by the enactments applied to the Orissa States under Sub-paragraph (a), all laws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra-Provincial Jurisdiction Act, 1947 (XLVII of 1947)'.

5. It was urged on behalf of the Government that the Rules, made by the Government under the Forest Act, had not been formally applied to Bamra State by the Administration of Orissa States Order and consequently though the Forest Act might have come into force on 1.1.48, the Rules made under that Act have not yet come into force. On the basis of this argument, it was further urged that the Rules made by the Ruler (mentioned above) would continue to exist. This argument overlooks an important principle regarding the coming into force of any statutory Rules in any area on the very date on which the Act is brought into force in that area. This principle has been reiterated in the case of 'MAHABIR SAHU v. EMPEROR', 25 Pat 98, where it was pointed out :

'Once an Act has been extended to an excluded area, or partially excluded area, it necessarily follows that any rule or order made in the exercise of powers conferred by the Act also comes into operation in such area.'

The same principle would apply as regards the coming into force of the statutory Rules made under the Acts which are applied to Orissa States in exercise of powers conferred by Extra Provincial Jurisdiction Act. It must, therefore, be held that the Rules made under the Indian Forest Act also came into force in Bamra State on 1-1-48. The Forest Act and the Rules framed thereunder contain elaborate and self-contained provisions dealing with preservation, administration and management of forests, and the State law, dealing with the subject, must be held to have ceased to be effective from 1-1-48. Sub-para (b) of paragraph 4 of the Administration of Orissa States Order saves only those laws which deal with matters not covered by the enactment applied to Orissa States under sub-para (a). The Bamra State Forest Rules cannot, therefore, be held to have continued to exist after 1-1-48 and the conviction of the petitioners for contravention of the Rules must be held to be invalid.

6. It was urged that the acts committed by the petitioners may also amount to contravention of some of the provisions of the Forest Act. It is however, unnecessary to discuss this question ab this stage, because the petitioners were not called upon to meet such a charge. I express no opinion as to whether there has been any contravention of the provisions of the Forest Act. It is of course left to discretion of the authorities concerned to initiate fresh prosecution, subject to that provision of that Act, if they are so advised.

7. For the aforesaid reasons, I would set aside the conviction and sentence of the petitioners. Fines, if paid, should be refunded.


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