Skip to content


Midnapore Zemindary Co. Ltd. Vs. the Regional Forest Officer, Midnapore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Nos. 1379 to 1381 of 1951
Judge
Reported inAIR1954Cal580,58CWN963
ActsConstitution of India - Article 227; ;West Bengal Private Forests Act, 1948 - Sections 2(13), 3, 3(1), 6(1) and 57; ;West Bengal Private Forests Rules - Rule 11
AppellantMidnapore Zemindary Co. Ltd.
RespondentThe Regional Forest Officer, Midnapore
Appellant AdvocateAtul Chandra Gupta, ;Jitendra Kumar Sen Gupta and ;Jnanendra Nath Mukherjee, Advs.
Respondent AdvocateSitaram Banerjee and ;Smriti Kumar Roy Chowdhury, Advs.
Excerpt:
- .....should be carefully recorded of any areas which are waste lands and which may re-quire re-afforestation). in spite of this explanatory note which makes it the duty of the owner to record in the working plan particulars of areas which are waste lands and which may require re-afforestation, there is, it is worth noticing, no provision in the form for any plan of afforestation or re-afforestation. 2. the petitioner, the midnapore zemindary company limited, prepared and submitted three working plans exactly in the form in appendix a for three private forests. these plans were not, however, approved by the regional forest officer, who, however, persuaded the petitioner to prepare and submit fresh working plans in a form containing two additional paragraphs--one of which was numbered.....
Judgment:

K.C. Das Gupta, J.

1. By Notification published in the Calcutta Gazette on 15-9-1949 the Government of West Bengal directed that every owner of a private forest, which was not a vested forest, situated in the Garbetta police station--excluding certain moujas with which we are not concerned-

'shall in the manner provided in the rules published under Notification No. 938--Forest--dated 16-11-1946 in the Calcutta Gazette of 21-11-1946 prepare a working plan for the conservation of such forest and shall submit such plan to the Regional Forest Officer on or before 15-12-1949.'

The direction was given in exercise of the powers vested in the Government of West Bengal by Section 3(1) of the West Bengal Forest Act which is in these words:

'The Provincial Government may, by notification, direct that every owner of a private forest which is not a vested forest, but which is situated within such area as may be specified in the notification, shall prepare in the prescribed manner and submit within the period mentioned in the notification to the Regional Forest Officer a working plan for the conservation of such private forest.'

For finding out what was prescribed we have to ascertain what Rules had been framed by the Government of West Bengal under the rule-making power conferred by Section 57 of the Act. It appears that Rule 11 of these Rules provides that a working plan shall be prepared in accordance with the instructions in Appendix A to the Rules. Appendix A sets out the form in which the working plan in to be prepared thus:

'APPENDIX.

Part I.

1. Area and legal position.

2. General description of forests.

3. Rights of user.

4. The details of past working.

5. Markets and disposal of forest produce.

Part II.

6. General object of management.

7. The period covered by the working plain.

8. System of management.

9. Rotation.

10. Calculation of maximum felling per year.

11. Felling plan.

12. Method of felling.

13. Protection and tending of young crop,

14. Regulation and limitation of rights of user.

15. Control of the prescriptions of the plan.

16. Annual record of work done in the forest.

17. Maps.'

Explanatory notes as regards the different paragraphs as set out in the form are also given in the Appendix. As regards paragraph 2--for the general description of forests--the following explanatory note is given:

'A brief note on the type of forest, its condition or the principal species of trees growing therein should be gives.' (For the purpose of describing the condition of the forest it will normally be sufficient to class as goods, medium or poor in respect of the growing stock thereof).

(Particulars should be carefully recorded of any areas which are waste lands and which may re-quire re-afforestation).

In spite of this explanatory note which makes it the duty of the owner to record in the working plan particulars of areas which are waste lands and which may require re-afforestation, there is, it is worth noticing, no provision in the form for any plan of afforestation or re-afforestation.

2. The petitioner, the Midnapore Zemindary Company Limited, prepared and submitted three working plans exactly in the form in Appendix A for three private forests. These plans were not, however, approved by the Regional Forest Officer, who, however, persuaded the petitioner to prepare and submit fresh working plans in a form containing two additional paragraphs--one of which was numbered 11(b) for showing 'the planting programme' and the other being numbered 12(a) for showing 'method of afforestation'. Under ll(b) was shown the total area of blanks and waste lands and the annual area to be planted up. Paragraph 12(a) was filled in the following manner:

'The afforestation work shall be done on the following lines but an afforestation plan shall be submitted well ahead of the planting time to the Regional Forest Officer, Midnapore, for approval;

(i) The area to be afforested annually may be protected from cattle either by digging a cattle-proof trench all round or by fencing or partly by both.

(ii) Lines of plants may not be wider than 6 it apart in case of sowing by seed and not more than 6' x 6' in case of planting of transplants. Lines for sowing should be hoed up at least 9' deep before sowing seed. Soil in the places of transplants should be dug to a depth of one foot.

(iii)The following species may be used:Sal, Peasal, Mohua, Karam, Simul, Gamar,Sisoo, Siris and Cassia Siamen. Any of the above species or a mixture of them may be used. Ailanthus Excelsa, Chatiwan, Bamboo and Sabai may also be used in boundaries and contour trenches but will be limited to 10 per cent, of the total regeneration area when grown pure.

(iv) Areas in which the plantation has failed are to be infilled in the subsequent years.'

3. These plans were accepted by the Regional Forest Officer. Shortly after that the petitioner applied to the Regional Forest Officer for sanction of deviation from the plans by deletion of the plan of afforestation as mentioned in paragraphs 11(b) and 12(a) on the ground 'inter alia' that these paragraphs were not authorised by the Forest Act and the Rules thereunder. The applications were refused and the appeals preferred by the petitioner to the Appellate Committee constituted under the Act were also dismissed, the Appellate Committee being of opinion that

'conservation includes such measures as are necessary to stop erosion of soil; afforestation is one of such measures and is certainly included in the term 'conservation', accordingly prescription 11(b) and 12(a) are quite in keeping with the law and very reasonable; prescription 11(b) and 12(a) are not practically any new direction but were issued in elucidation of the main clauses of the rules.'

4. The petitioner now prays to this Court that we should allow the applications for deviation, in the exercise of our powers of superintendence under Article 227 of the Constitution.

5. This Article provides:

'Every High Court shall have superintendence of all courts and tribunals throughout the territory in relation to which it exercises jurisdiction.'

It is well settled now that this superintendence includes superintendence of the judicial functions of courts and tribunals. This Article thus gives the High Court the power and also imposes on it the duty of superintending all courts and tribunals. This power and this duty are given in order that the High Court may do whatever may be necessary to ensure that courts and tribunals achieve the object for which they exist, namely, that justice is done. The framers of the Constitution put no limitations on this power and this duty of the High Court.

The different High Courts have had often to consider the question in what circumstances they would interfere with the decisions of courts and tribunals in the exercise of this power of superintendence. They all agree that the function of the High Courts in the exercise of the power and in the performance of the duty under Article 227 of the Constitution is not of the same scope as their function as appellate or revisional Court under the Civil or Criminal Procedure Codes or other statutes under which appeal or revision lies to the High Court. Though, therefore, it is part of 'superintendence', as ordinarily understood, to set right whatever has gone wrong, the High Court will refuse to act merely because a court or tribunal has come to a decision which is erroneous because of a wrong decision on a question of fact or a wrong decision on a question of law.

Where, however, a court or a tribunal has refused to do its duty, that is eminently a matter within the scope of superintendence and the High Court will, whenever it finds that other convenient modes of redressing the grievance that has resulted from the Court or tribunal not doing its duty are not readily available to the aggrieved party, direct the court or tribunal concerned to do its duty or in suitable cases itself remedy the injustice that has resulted from such refusal. The fact that such refusal was the consequence of an honest mistake of fact or law will not make it any the less a refusal by the court or tribunal to do its duty and will be no ground for the High Court staying its hand to set matters right.

6. Mr. Gupta contends that there has in these cases been such a refusal by the Appellate Committee to do its duty as calls for this court's exercise of its powers and performance of its duty of superintendence. I have already mentioned, the form as set out in Appendix A to the Rules does not provide for any plan or programme of afforestation.

In making the statements in paragraphs 11(b) and 12(a) of the plans about a scheme of afforestation by planting in the waste lands of the forest, the owner of the forest was undertaking to do something which he was not required to do under the provisions of Section 3(1) of the Act or the terms of the Notification, for Section 3 provides for direction to prepare a plan in the prescribed manner--that is in the manner prescribed by the Rules framed under the Act-- and, the Notification itself very rightly directed preparation of a plan in accordance with the Rule of 1946 which Rules having been framed under the Act of 1945 were the Rules for the purpose of deciding what has been prescribed. These Rules, as I have pointed out more than once, do not provide for any scheme of afforestation of waste land to be included in the working plan.

7. Mr. Gupta has argued that the scheme of the Act, even if the Rules that were actually framed under Section 57 of the Act and the form in Appendix A for the working plan be left out of consideration, clearly is that the plan for conservation of forests for which Section 3 provides could not include any plan of afforestation and he has for this purpose drawn our attention to the fact that the matter of afforestation has been separately provided for in Sections 10 and 11 of the Act.

It is not necessary for our present purpose to consider the correctness of this argument or, assuming that this argument is refected, the consequence will only be that it will be within the competence of the State Government to prescribe by Rules the work of afforestation to be included in the working plan under Section 3. As yet no Rules prescribing this have been framed, so that the legal position is that the inclusion by the owner of any scheme of afforestation in a working plan submitted under Section 3 is wholly unauthorised by the Act.

8. Having undertaken thus to do certain things which were neither required nor authorised by the Act the petitioner wanted to get out of the undertaking for the very good reason that this would entail heavy expenditure. In my opinion, the prayer was not only reasonable, but the Regional ForestOfficer had no right in law in view of the Rules torefuse to sanction the deletion of the undertakings. It was certainly the duty of the Regional Forest Officer to insist on the exact terms of the statute being carried out; not only was it wrong for him to ask for something which was not authorised by the Act to be included in the working plan, it was his duty to ask the owner of the forest to exclude from the working plan anything not authorised by the Act even without being asked by the owner to do so. The fact that he as an expert considered the work included in the plan, though not authorised by the Act, necessary or proper for the conservation of the forest would be entirely irrelevant.

The Appellate Committee may be quite correct in thinking that conservation includes such measures as are necessary to stop erosion of soil and that afforestation is one of such measures. I find it impossible to agree, however, that merely because afforestation may be necessary for the purpose of conservation paragraphs 11(b) and 12(a) are in keeping with the law. The Appellate Committee has used the word 'prescription before 11(b) and 12(a). The word 'prescribed' is defined in the Act itself as 'prescribed by the rules' made by the Government. Anything which is not prescribed by the rules, but prescribed by the Regional Forest Officer, does not fall within the definition of 'prescribed' in the Act. It is well to remember that the Regional Forest Officer acquires all his powers under the Forest Act. He has no right to place himself above the law.

9. When, therefore, the owner of the forest prayed that the afforestation plan should be deleted from the working plan, the Regional Forest Officer was bound in law to sanction this deviation. In refusing the prayer he clearly refused to do his duty. The Appellate Committee was equally bound when the owner appealed from the order of the Regional Forest Officer refusing to sanction the deviation and by not doing this they refused to do their duty. This refusal on their part has resulted in the position that either the owner must incur heavy expenditure for carrying out the undertaking in paragraphs 11(b) and 12(a) of the working plan or he must face prosecution under Section 6(1) of the Act. This is manifestly gross injustice and against this there is no convenient remedy available to the owner. I think it right and proper, therefore, that in the performance of our function of superintendence over the tribunals we should remove this injustice by ourselves ordering that the prayer for deviation be allowed.

10. I would accordingly make these Rules absolute and set aside the orders of refusal to sanction deviation by the Regional Forest Officer and the Appellate Committee and order that the applications of the petitioner for sanctioning deviation from the working plan by deleting the clauses for afforestation as contained in paragraphs 11(b) and 12(a) of the working plans be allowed.

11. The petitioner will get the costs of these Rules from the opposite party. There will be one set of hearing fee for these three Rules.

Debarrata Mookerjee, J.

12. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //