STATE OF BIHAR v. LT. COL. K. S. R, SWAMI

DA.s GUPTA, J.~This appeal by the Sta.to of Bihar challenges the correctness of an order madti by the High Court at Patna in an application by the respondent under Art. 226 of the con; titution. The respondent was inducted as a tenant on a tract of land measuring :!45.69 acres in village Singpur by tho then proprietor in ~ovcmber, 1945, and con tinned to remain in possession after the Zemindari interest of the proprietor bccamo vel!tcd in the State of Bihar in consequence of a notifica tion under the Bihar Land Reforms Act (Bihar Act In XXX of 1952) on the 30th December, 1952. 1945 this area was forest land. On Septcmb~r 15, 1946, a notification was published under section 14 of thll Biha.r Pri\•ate Forest Act, 1946 declaring tho Government's intention of constituting the forest a private protected forest. By the same notification the Governor further ordered that until the publication of a notification under s. 30 of the Act all the rights to cut, collect and remove trees or any class of troos in or from the forest shall cease to exist subject to conditions .and speci· fications specified in the Second Schedule. The result of tm~ notilka.tion was that immediately on the Government Gazotto the its publication in respondent's right to cut, collect and remove trees __ .,._ -~· 11141 Statt of Bihar v. Lt. Col. K. S. R. Swami Das Gupta J. 3 S.C.R. SUPREME COURT REPORTS 729 ceased so long as this forest continued to be a private forest. On the 6th April, 1948, a noti· fi~ation under the proviso to s. 30 of the Bihar Private Forest Act, was published. After the forest fond became vested in the State on the 30th December, 1952, there was a notification on January 22, 1953, which both parties agree, was in substance under the proviso to s. 29 of the Indian Forest Act, 1927. It is the common case of both the parties that in consequence of this notification the · forests in Singpur Village became a protected fore st. On May 29, 1953, a further notifivation under section 30 of the Indian Forest Act was made prohibiting the breaking up or clearing the land of this and certain other "protected forests" for cultivation. As local employees of the Forest Department acting under the Divisional Forest Officer, Gaya, started interfering with the agricul tural operations carried on on behalf of the petition er apparently on the strength of this notification of May 29, 1953, the respondent sought the per mission of the Collector of Gaya to start reclama tion and cultivation of lands. On April 22, 1954 the Collector ·Of Gaya gave the petitioner permis sion "to go ahead with the work of reclamation and cultivation in this area." The Forest Officer how ever disregarded the Collector's orders and made reclamation. On being the petitioner to stop approached by the appellant the Collector called upon the !forest Officer to furnish an. explanation as to why he had flouted deliberately the Collector's <?rders. Ultimately, the Bihar Government sent a telegram to the Collector, Gaya, on June 10, 1954 . desiring that the order issued by the Collector on April 2:.!, permitting the respondent "to go ahead with the reclamation should be withdrawn pending the decision of the Government in the matter" . . The Collector forwarded a copy of this telegram to the respondent for information and necessary action . on June 11, 1954; IS~l S1at4 of BiMr v. LJ, Col. K. S. R. Srvanri D., Gupta ]• ' 730 SUPREME COURT REPORTS (1962] It does not appear that any further order has been made by Go\·ernment in the matter. On August 2~ 1954 the respon.dent made 11is application to the High Court of Judioature at Patna praying that au appropriate writ be issued for cancellation by the Government of Bihar of the directions given on June IO, 1954 to the Collector and for restraining the Government of Bihar and the Forest Officer from interfering with the petitioner's possos sion over this land in village Singpur. The petitioner's case was that the forest having becume a protected forest under Chapter IV of the Indian Forest Act the Collector was proper and competent authority to give permission to clear or break up for cultivation, land in tliis forost under Rule 8 of the rulos made by the Govern ment of Bih&r in exercise of the power conferred by sectiun 32 of the Indian Forest Act, 1927 and that neither tho Forest Officer nor the Government of Bihar itself could in law interfere with what he was doing on the strength of that permission. In opposing the petition tho Stat{) of Bihar contended that the Collector's order was of no avail in the face of rule 4 of tho rules made by the Government of Bihar under section 32 which provi· des that "no person shall cut, eonvort, or remove from the said forest or otherwise deal in trees etc., of the forest" oxcopt in accordance with Rules I, II and III. At the hearing of tho petition it was further argued on beh<1lf on the State that the right of the petitioner to the land in dispute had been extin· guished under section 19 of the Bihar Act IX of 1948, on the p'Rblication of a notification by the Government of Bihar under the proviso to section 30 of that Act. The High Court rejected this argu· mcnt, being of tho opinion that extinction could take place only when the final notification under section 30 was published and as this final notifica tion was not pulilished section 19 had no application - - 1961 State of Bihar V, . LI. Col. K. S. R. Swami Das Gupta J, -· - .... 3 S.C.R. SUPREME COURT REPORTS 731 ... to the .case. The High Court also held that in a oase where a Collector grants permission under Rule 8 of the Bihar Protected Forest Rules the Divisional Forest Officer had no power to interfere by virtue of Rules 1 to 4 of the· same Rules. Accord· ingly the High Court allowed the petition and made an order quashing the State Government's order conveyed in their telegram of the 10th June and the order of the Forest Officer dated the lst May, by which. this Officer had prohibited reclama tion of the disputed land by the petitioner. In this Court, Mr. Jha raised both the points on which the petition was resisted before the High Court, viz., (1) that the petitioner's right to the land had ceased under s. 19 of the Bihe.r Private Forests Act and (2) that the order passed by the Forest Officer on the basis of Rule 4 of the Bihar Protected Forests Rules should prevail over the permission granted by the Collector under r. 8. Mr. Jha's first contention on the first point was that when a notification is made under the proviso to·section 30, no further notification under section 30 need be made at all. In our opinion, there is no force in this contention. The provisions of the Bihar Private Forests Act, 194 7 in respect of private Protected Forests are contained in Chapter III of tho Act. The scheme of these provisions is· that the State Government on being satisfied that it is necessary in the public interest to apply the provisions of the chapter to any private forest, may constitute such forest a protected forest in the manner laid down; the first step that has to be taken is the issue of a notification under section 14 declaring that it is proposed to constitute a forest a private protected forest and calling for objections of all laudlords whose interests are 'likely to be affected. Tho hearing of objections is provided for in section 15, sub-section 3 of which section further provides that if no. objection is presented or when objection is so presented and ' 1961 S1ct1 of Bi.har v. Lt C./, K. S. R. SrlfOnri Das Gupi• J. -.. i32 SUPREME COURT REPORTS [1962] finally disposed of the Government may issue a. notifica.tion deela.ring its <leciaion to constitute the area. a private forest and appointing an officer "to enquire into 11.nd determine the existence, nature and extent of any rights other than landlord's rights, alle~d to exist in favo11r of any person in or over any fond in the foreet". Section 16 pro- vides that on the i86ue of such a notification undec sub-s. 3 of s.15 the Forest Settlement Officer shall publish a procla.ma.tion fixing a. period of not les1 than three months from the date of such proclama- tion for claims to be made by all peraoos as rega.rd1 landlord's rights. Section 17 rights othor than empowers the Forest Settlement Officer to enquire into a.II claims preferred in response to the notifica- tion and alto into tho existence of any rights men tioned in sub·s.3 of s. 15 and not claimed under s. 16. Sect.ion 22 of this Cha.ptor deals with tho procedures for <lea.ling with claims of forest contra.- ctors and grantees. Section 23 provides that in the case of claim to a right in or over a.ny land other tha.n a right of way or right of pasture or a right to forest produce or water course the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part subject to the provisions of scctiollB 25 and 26. Section 27 givos a right of appeal to any person who has ma.do a cla.im under section 16 or section 22 against the 01der passed by tho Forest Settlement Officer under BB. 22, 23, 24 or 26. Section 30 provides for the fina.l a.ction to be taken by the Government in the matter of constituting a private protected forest. The main portion of the section is in these words:- "Whero the following events have occurred, namely, (a.) the period fixed under section Hi for preferring claims has elapsed and all claims, if any, made under sections 16 and 22 ha.ve been disposed of by the forest settlement officer, and __ _.,... 3 S.C.R. SUPREME COURT REPORTS 733 (b) if any such claim has been made, the period limited by section 27 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer, 1961 Slat• ofB;har v. Lt. Col. K.S.R. Swami Das Gupta J, the State Government shall publish a notification in the Official Gazette specifying, definitely according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest, from the date fixed by the notification and from the date so fixed such forest shall be deemed to be a private protected forest". following It is followed by a proviso in words:- "Provided that, if in the case of any forest in respect of which a notification under section 14 has issued, the State Government consider that the inquiries, procedure and appeals referred to in this Chapter will occupy such length of time as to cause undue delay in the forest being declared a private protected forest, in the opinion of the State Government being prejudicial to the public interest, the State Government may, pending the completion of the said enquiries, procedure and appeals, declare by a notifica tion containing the particulars Bpecified in forest to be a private this section, such forest". such delay, It is abundantly clear that the notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries procedure and appeals". Quite clearly, bh<'>se enquiries, procedure and appeals are not stopped ty the declaration under the proviso. They have to - -- I 19111 Stat• of RiMr v. L;. Col. K. S. R, Suawi Das 011/>t" ]. 1 734' SUPREME COURT REPORTS [1962J be completed a.nd it is only after their completion that a notiJica.tion can bo made by the Government under tho main part of the section. On a reason able reading of tho section it is therefore abundantly clear that O'fllll where the Government thinks fit to make 11. declaration under the proviso, this will have effect only so long as tho period fixed under section 16 for preferring claims (i) has not expired; (ii) claims under ss.l{) and 22 ha;e not, been disposed of; (iii) the periods limited by section 27 for appea ling from tho orders passed in respect of claims have not elapsed; and (iv) all appeals prefer red against such orders have been disposed of. Turning now to section 19 of this Chapter we find it laying down that "rights (other than land lord's rights) in respect of which no claim has boen urefcrred under s. 16 and of the oxist{Jnce of which no knowledge has been acquired by enquiry under s. 17, aha.II be extinguished, unless before tho noti ficaticn under 8. 30 is published, the person claim ing tht>m satisfies tho Forest S cttlemcnt OJiicer that he had sufficient cause for not preferring such claim within the period fixed under s. 16." The appellant's argumont is that the words "notification under s. ~O is published" includes a notification made under the proviso to that section and that consequently when a notification under the proviso to s. 30 has been published all rights other than landlord's rights, in respect of which no claim has been preferred and of the existence of which no knowledge has been acquired by an en· quiry undllr s. 17, shall be extinguished. This argument is in our opinion wholly un· acceptl1 ble. Considered in the background 0f the provisions in the Act for claims to be mado under these by . tho Forest s. W, for enquiry Officer and thereFLftcr for ap'peels from the decision of tl1e Forest Officer, after the completion of all of which only the final notification constituting the private forest a private protected forest can be • - - 1961 State of Bihar v. Lt. Col. K. S, R. SWtJmi Das Gupta J. ... -i - .,,... 3 S.C.R. SUPREME COURT REPORTS 735 made, it is clear that rights "other than landlord's rights" in respect of which no claim has been pre ferred under s. 16 or which have not been disclosed by enquiry under s. 17 were intended by the legislature to be extinguished only o.fter the final notification is made. It is to he noticed that three months' time from the date of the proclama tion under s. 16 is to be allowed for making claims. The enquiry under s. 17 can start only after these claims have been made and some more time must elapse before an enquiry can .be completed in to the existence of rights which have not been claimed under s. 16. A notification under the proviso of s. 30 can however be made at any time after the notification under s. 14 has issued. It is meaningless to speak of rights in res pect of which no claim has been preferred under s.16 and of the existence of which no knowledge has been acquired by s. 17, before the period for the enquiry under s. 17 has expired. Again, there will be no extinction of rights, under s. 19, if the person claiming the rights satisfies the Forest Settlement Officer that he had sufficient oause for not preferring the claim within the period fixed under s. 16. The question of thus satisfying the Forest Settelment Officer can clearly not arise before the period fixed under s. 16 has expired. All this clearly shows that the extinc tion of rights under s. 19 can take place only after the final notification under s. 30 has been publis hed. an enquiry under It is necessary to consider next the apparent conflict between the powers of the Officers of the Forest Department under rr. 1 powers of the Collector under r. 8 of the Pro tected Forest Rules. Under r. 1 persons who are bona fide residents of Khasmahal lands may eut, convert and remove to their homes for their own domestic use certain trees but the Forest Officer can in his discretion withdraw this privilege. Certain other trees as specified in the Rule may to 4 and l~l Stale of Bihar v. Lt. Col. IC S. R. Swan1i Das G11Pta J, . r .. - 736 SUPREME COURT REPORTS [1962) the Chief Conservator be cut by suoh bona fide residents with the pre vi om permission of the Forest Officer. Under r. 2 the Forest Officer may by an order in writing aut horise in certain circumstances villagers of adjacent villages alRo to cut and remove trees mentioned in r. I. Rulo 3 providoa th"t the Divisional Forest Officer may grant license to' any inhabitant of 'l. town or vilIR-ge in the vicinity of a forest to take treos, timber, or other produce for his own use to any person whatsoever authorising him to fell or remove trees for the purpose of trade on pay ment of fees at current rates as may be sanction of Fore8ts. ed by Rule 4 on which special reliance is placed on behalf of the Stato is in these words :-"No person shall cut, convert or remove from the said forest or otherwi~e deal with any trees, timber or other forest p1·oduce of the said forest ............ except as providecl in Ruloa I, TI and III. Rulo Sunder which the Collector gave permission rm1s thus : "No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of.the Collector". There is an apparent conflict here between the provisions of r. 4 and r. 8 ; for, while under r. 4 no cutting, conver sion or removal of trees can be made except under license issued under r. 3 or permisAion granted bv the Forest Officer under r. 2 or under tho p~ovisions of r. 1, all this can be set at naught if a written permission is granted by the Collector for clearing or breaking up the land for cultivation or any other purpose necessarily involving the cutting and removal of trees. On b<>half of tho appellant-Stiite Mr. Jha argued that r. 8 has no operation so long as trees are standing and it is only if trees have been cut or removed under the provisions of rr. 1, 2 and 3 and only stumps of thoso trees aro standing that the Collector can give permission for clearing tho forest land or breaking it up for cultivation. We are unable to persuade oul'!!elves that in ma.king 1961 State of Bihar v. Lt. Col. K. S R. Swami Das Gupta J. 3 S.C.R. SUPREME COURT REPORTS 737 these rules the Government intended to give such limited authority only to the Collector. It is obvious that while Rules 1, 2, 3 and 4 were made under clauses a, b, c and d of section 32, Rule 8 has been made under clause g of section 32 which is for the definite matter of "clearing and breaking up of land for cultivation or any other purpose" in a protected forest. The reasonable way of reading Rules 1 to 4 and Rule 8 appears to us to be that Rules 1 to 4 apply to the cutting or removal of trees where in spite of such cutting the forest would continue to be a forest; but cutting of trees which is necessary for clearing the land for cultiva tion or any other purpose is not controlled by Rules 1, 2, 3 or 4 but only by Rule 8. That seems to us to be the only way of harmonious construction of Rules 4 and 8 and that must, in our opinion, have been intended by the rule making authority. In the present case therefore when the tenant on the land asked for permission to clear the land for cultivation and it was this clearing which involved the cutting and removal of trees Rules 1 to 4 had no application and Rule 8 under which the Collector acted applied. It may be mentioned here that though Rule 8 is in the negative form, it is what has been called a pregnant negative, saying on the one hand that land in the forest may be cleared or broken for cultivation or any other purpose with tho written permission of the Collector and on the other hand that without such permission no such clearing or breaking up for cultivation or any other purpose shall take place. The permission given in the present case by the Collector was therefore in accordance with law and neither the Forest Officer nor the Government had any autho rity in law to interfere with that permission. The last argument advanced by Mr. Jha is that the prohibition by the State Government of clearing or breaking up for cultivation or for any other purpose of any land in a protected forest by the notification dated May 29, 1953, under s. 30 of - -- -· 1961 Stall of Dit..r v. LI. C.1. K. S. R. Swcmi Du Gupta J, 738 SUPREME COURT REPORTS (111~2] the India Forest Act, 1927, must prevail over the permission given by tho Collector. It is to be noticed that when'.as ooction 30 empowers the State Government int-,r alia to prohibit such breaking 11p or clearing for cultivation of any in a protected forest, soction 32 empowers tho State Government to make rules to regulate imer alia "tho clearing and breaking of land for eulfrration or any other purpose" in a protected forest. Even if the legislature bad said nothing else matter, it would have been plausible to argue that the prohibition under the notification would yield before any permission given under the Rules under s. 32. All doubts are however set at rest by section .34 of the Aet which runs thus :- "Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest Officer, or accordance with rules made 11ndcr s. 32, or except as rc~ards any portion of a forest closed under s. 30, or as regards any rights the exercise of which has been suspended under B. 33, in the exercise of any right recorded under section 29". It follows clearly and necessarily from section 34 that the prohibition by notification of the clearing of land would be ineffective where such clcarin~ is being mado in accordance with Rule 8 of the Rules made under section 32. raised in tho appeal therefore fail. We are of opinion that there is no legal authority interfere with the clearing or cultivation of land by tho respondent which iB proposed to be done in accordance with the written permission granted by the Collector under Ruic 8 of tho Protected :Forest Rules, 1953. for tho State Government All the contentions It appears that through some O\'ersight the High Court ordered the issue of a writ of certiorari, chough a. writ in the nature of mandamus was . ' - , --· • 3 s.c.R. SUPREME COURT REPORTS 73g • - -,. prayed for. It is clear that the approp.riate w:it ~n the circumstances of the present oase 1s a writ Ill the nature of mandamus and we modify the order made by the High Court to this extent that a writ in the nature of mandamus be issued directing the appellant-Government to cancel its order on the Collector made on June IO, 1954 and restraining the Government and the Forest Officer from inter- fearing with the petitioner's possession over 245.69 acres of land in village Singpur which he possesses as tenant. - The appeal is dismissed with coat8. Appeal dismissed. 1961 State of Bihar v. Lt. Col. K. S. R. Swami Das Gupta], IMMANI APPA RAO AND OTHERS v. GOLLAPALLI RAMALINGAMURTHI AND ORS. (B. P. SINHA, C. J., P. B. GAJllJNDRAGADKAR and RAGHUBAR DAYAL, JJ.) 1961 September 22. ,_ ~raud--R•nami Conveyance in fraud of creditor.-Suit by b•n,am•dar for posseS!ion-Plea ~f.fraud in defence-If barred by ••loppel--Proper approach-Public inter'81-lndian Trusts Act 1882 (2 of 1882) s. 84. _..- The conveyance in mit was tI.e result of a collusive plan between respondent I and respondent 2 to defraud the latter's creditors. The a.izreement was that respondent I was to act as for respl)ndent 2 and hfa sons, the appellants. the benamidar The fraud succeeded and the creditors of respondent 2 were in _... fact defrauded. Thereafter respondent I brought the present suit for declaration of title and recovery of possession against respondent 2 and the appellants on the basis of the conveyance. The latter resisted the suit on the ground that the conveyance wa. fraudulent, unmpported by consideration and passed no that the title. The High Court in oecond appeal held appellants and from pleading respondent 2 were estopped fraud in the suit and decreed the same. The question was whether the view taken bv the High Court was correct and the ~stensible owner was entitled to a decree. Held, that there could be no question of estoppel in a case where both the parties were gu!ity of fraud