Guru Datta Sharma Vs. State of Bihar
[1961] INSC 177 (24 April 1961)
AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR
P.(CJ) SARKAR, A.K.
GUPTA, K.C. DAS MUDHOLKAR, J.R.
CITATION: 1961 AIR 1684 1962 SCR (2) 292
CITATOR INFO :
F 1962 SC1687 (8) RF 1970 SC 470 (30,31)
ACT:
Forest--Protection--Validity of
enactment--Constitutional validity--Legislative competence--Notification by
State Government--Validity Bihar Private Forests Act, 1946 (Bihar 3 of 1946),
ss.14, 21-Bihar Private Forest Act, 1947 (Bihar 9 of 1948),
ss.14,21--Ch.III--Bihar Private Forests (Validating) Act, 1949 (Bihar 12 of
1949),s. 2--Government of India Act, 1935 (25 & 26 Geo. 5 Ch. 42), s. 299(2)--Constitution
of India, Arts. 19(1)(f), 31 (2).
HEADNOTE:
In 1946 the appellant was granted a right to
cut and remove bamboos and certain other timber to be found in a specific area
of the forest Village of Jun by certain persons known as Manjhis who held under
a mokarari lease granted by the Raja of Ranka and whose names had been entered
in the revenue records. Meanwhile, the Bihar Private Forests Act, 1046, was
enacted and it came into force on February 25, 1946. This Act was repealed and
reenacted by Bihar Act 9 Of 1948. On October 14, 1946, the Governor of Bihar
issued a notification under ss. 14 and 21 of the Bihar Private Forests Act,
1946, declaring the forest of Jun as a protected forest. Though in the Schedule
to the said notification, against the column headed "name of the
proprietor" the name of Raja of Ranka was entered, a copy of the
notification was however served on the Manjhis.
Immediately on the issue of the notification
the officials of the Government of Bihar prevented the appellant from working
the forest any further.
The appellant challenged the validity of the
proceedings under the Act by filing a suit. The trial court held that the Act
was valid but decreed the suit on the ground that the notification issued under
s. 14 was invalid, primarily for the reason that the name of the Manjhis as landlord
had not been mentioned in it. The High Court on appeal reversed the decree and
dismissed the suit, holding that the omission of the name of the Manjhis in the
notification did not render the same invalid and that even otherwise the
proceedings under Ch. III of the Act had been validated by S. 2 of Bihar Act 12
Of 1949.
Held, that the Bihar Private Forests Acts of
1946 and 1948 were validly enacted and were within the Legislative competence
of the Province under the Government of India Act, 1935, and were not otherwise
obnoxious to its provisions.
Bihar Act 3 Of 1946 was an Act supplementary
to, or rather a complement of the Indian Forests Act of 1927 and was clearly
293 covered by the Entry 'Forests' in item 22 of Provincial Legislative List
under which the Province could enact legislation not merely generally in
relation to "Forests" but also to enable the Government to assume
management and control of forests belonging to private proprietors. Such legislation
involved no violation of the guarantee against "acquisition by the State
without compensation" contained in s. 299(2) of the Government of India
Act, 1935. Property, as a legal concept, was the sum of a bundle of rights and
the imposition of a compulsory Governmental agency for the purpose of managing
the forest with a liability imposed to account to the proprietor for the income
derived as laid down by the statute was not an "acquisition" of the
property itself within S. 299(2) of the Government of India Act, 1935. Nor does
S. 299(5) affect the matter. The rights referred to in it are derivative
rights, like interests carved by an owner-a lessee, mortgagee etc. and not an
incident of a property right.
Held, further, that the correct specification
of the name of the landlord was not a legal pre-requisite of a valid
notification under s. 14 Of the Bihar Act 3 Of 1946 but the emphasis was on
specification of the land and not so much on the owner or the person interested
in it. The proceedings taken under Ch. III of the Act including the notification
issued under s. 14 Of the Act were valid and in accordance with the law and the
validity of the service of notices required by s. 14 or other provisions of the
Act could not be challenged in view of the provisions of S. 2 Of the Bihar
Private Forests (Validating) Act, 1949.
Held, also, that the legislation under which
the appellant's rights were extinguished, subject to his claim for
compensation, was a valid law which took effect in 1946, long before the
Constitution came into force and the appellant had therefore no rights which
could survive the Constitution so as to enable him to invoke the protection of
Part III thereof.
M.D. Sir Kameshway Singh v. State of Bihar,
[1950] I.L.R. 29 Pat. 790 and Dwarkadas Shrinivas of Bombay v. Sholapur
Spinning & Weaving Co., Ltd. [1954] S.C.R. 674, distinguished.
Sm. Khemi Mahatani v. Charan Napit, A.I.R.
1953 Pat. 365, K.B.N. Singh v. State, (1956) I.L.R. 36 Pat. 69, Administrator,
Lahore Municipality v. Daulat Ram Kapur, [1942] F.C.R. 31, State of West Bengal
v. Subodh Gopal Bose, [1954] S.C.R. 587, Bhikaji Narain Dhakras v. State of
Madhya Pradesh, [1955] 2 S.C.R. 589, Slattery v. Naylor, (1888) 13 App. Cas.
446 and Shanti Sarup v. Union of India, A.I.R.
1955 S.C. 624, referred to.
Belfast Corporation v. O. D. Cars Ltd.,
[1960] A.C. 490, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 41 of 1960.
38 294 Appeal from the judgment and decree
dated April 28,1958, of the Patna High Court in appeal from Original Decree No.
70 of 1953.
L. K. Jha, A. K. Jha, S. S. Shukla, E.
Udayarathnam and K. K. Sinha, for the appellant.
Lal Narayan Sinha, Bajrang Sahay and S. P.
Varma, for the respondent No. 1.
1961. April 24. The Judgment of the Court was
delivered by AYYANGAR, J.-This appeal comes before us on a certificate granted
by High Court of Patna under Art. 133(1) of the Constitution.
The appellant had filed a suit against the
State of Bihar before the Subordinate Judge, Daltonganj and had succeeded in
obtaining a decree in his favour the details of which we shall presently
narrate. The State preferred an appeal to the High Court and by the judgment
now under appeal the learned Judges of the High Court had allowed the appeal
and dismissed the suit with costs, and the plaintiff has come upon appeal to
this court.
The facts giving rise to the suit and the
appeal may now be briefly stated. The village of Jun in the district of Palamau
in the State of Bihar was within the estate of the Raja of Ranka. This
proprietor had granted a mokarari lease of the village which consisted mostly
of forest lands, in favour of certain persons who have been referred to in
these proceedings as the Manjhis. The Manjhis in their turn entered into a
registered agreement on February 23, 1946, with Gurudutt Sharma-the appellant
before us, whereby the latter was, in consideration of the payment of a sum of
Rs.
6,000, granted the right to cut and remove
bamboos and certain other timber to be found in a specified area of this
forest-village. This right the appellant was to have for a period of 8 years
ending on March 1, 1954. By a further deed executed on March 15, 1946, which
was however unregistered, the Manjhis granted to the appellant the right to
pluck, or collect and carry away bidi leaves in the same forest area for 295 a
period of 9 years ending March 1, 1955, for a consideration of Rs. 200. It is
the case of the appellant that immediately after these deeds were executed, he
started cutting the trees and otherwise exercising the rights granted to him
under them.
Meanwhile the Governor of Bihar who had, by
proclamation issued by him under s. 93 of the Government of India Act, 1935,
assumed to himself the powers vested in the Provincial Legislature, enacted in
exercise of the powers so assumed, the Bihar Private Forests Act, 1946 (Bihar 3
of 1946). It is the validity of this enactment and the interpretation of its
provisions and. of the similar provisions in the Bihar Private Forests Act,
1947 (Bihar 9 of 1948), by which it was repealed and reenacted, that form the
main subject of controversy in this appeal. It is therefore necessary to set
out certain of the relevant provisions and also the action taken under them in
order to appreciate the contentions raised by learned Counsel for the
appellant.
The Governor's Act of 1946 extended to the
whole of the Province of Bihar and came into force on February 25, 1946, when
having received the assent of the Governor-General it was first published in
the Bihar Gazette. There were certain forests which were excepted from the
operation of this Act by its second section, but the forests in the village of
Jun with which this appeal is concerned were not among them. The Act contained
the definition of a "landlord" as meaning 'the owner of the estate or
tenure in which a forest is comprised who is entitled to exercise any rights in
the forests'. It is obvious that the Manjhis would be "landlords"
within this definition. Section 4 of this Act enacted:
"The rights of the landlord and......
the rights of any other person to cut, collect or remove trees, timber or other
forest produce in or from...... in any forest shall not be exercised in
contravention of the provisions made in or under this Act." There were
other restrictions oil the rights of landlords or persons claiming through them
but these are not very material for the point required to be decided in this
appeal. Chapter III of this enactment which 296 comprised ss. 13 to 30 dealt
with "private protected forests" which were defined in s. 3(10) as 'a
forest specified in a notification issued under sub-s. (1) of s.
29'. Section 13 with which this Chapter opens
made provision for the Provincial Government, "if satisfied that it was
necessary in the public interest to apply the provisions of this Chapter to any
private forest" to constitute such forest "a private protected
forest." Section 14 required the Government, when proposing to constitute
a private forest as a "private protected forest" "to issue a
notification (a copy of which shall be served on the landlord in the prescribed
manner) (a) declaring its proposal, (b) specifying the situation and limits of
the forests and stating that landlords whose interests are likely to be
affected by the constitution of the private protected forests to state their
objections in writing against the proposal." Section 15 prescribed the
procedure for hearing the objections which might be presented under s.
14 and after the disposal of the objections a
notification might issue declaring "that it has been decided to
constitute" a demarcated area as "a private protected forest"
and for other consequential matters including the determination of the
existence and nature of rights other than those of the landlords in or over
such forests. After the issue of the notification under s. 15, the Forest
Settlement Officer was required by s. 16 to publish a proclamation in the
village in the neighborhood of the forest requiring persons claiming rights
other than those of a landlord, to appear before him and state the particulars
thereof and the compensation which they claimed for the infringement of their
rights. Sections 17 and 18 dealt with the enquiry by the Forest Settlement
Officer in respect of these objections and his powers in doing so. Section 19
made provision for the extinction of the rights and claims which had not been
preferred in response to a notification under s. 16 unless the officer was
satisfied that the same was not made for sufficient cause. Section 29 enacted:
"29. (1) When the following events have
occurred, namely:(a) the period fixed under section 16 for preferring 297
claims has elapsed, and all claims, if any, made under sections 16 and 22 have
been disposed of by the Forest Settlement Officer;
and (b) if any such claims have been made,
the period limited by section 26 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, the Provincial 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 a date fixed by the notification, and from the date so
fixed such forest shall be deemed to be a private protected forest:
Provided that, if in the case of any forest
in respect of which a notification under section 14 has issued, the Provincial
Government considers that the enquiries, procedure and appeals referred to in
this Chapter will occupy such length of time as in the meantime to endanger the
conservation of the forest, the Provincial Government may, pending the
completion of the said enquiries, procedures and appeals, declare such forest
to be a private protected forest, but not, except as provided in sections 20
and 21, so as to abridge or affect any existing rights.
(2) Any declaration made in respect of any
forest by the Provincial Government under the proviso to sub-section (1) shall
cease to have effect from the date of any final order passed under section 15
directing that the proposal to constitute such forest a private protected
forest shall be dropped, or of any order passed under sub-section (1)."
But pending this notification by which "a private protected forest"
was constituted there were provisions for keeping things in status-quo and for
the extinguishment of rights by payment of compensation of the interests of
persons who were not landlords. Section 20 imposed a ban on landlords entering
into 298 contracts with any other person conferring on the latter the right to
cut, collect or remove trees, timber or other forest produce after the issue of
a notification under s.
14. Having thus dealt with the landlord, s.
21 proceeded to enact a similar ban to have effect between the date of the
notification under s. 14 and the formal constitution of "a private
protected forest" by a notification under s. 29 against the cutting,
collection or removal of trees by every person including the landlord as well
as any person claiming rights under him. Section 22 laid down the procedure for
dealing with claims of persons who had entered into contracts with landlords
whereby they had obtained the right to cut, collect and remove trees, timber or
other forest produce etc. It also made provision for the payment of
compensation to such contractors. Sections 23 to 28 made provision for
miscellaneous matters to which it is not necessary to refer.
There are other provisions which are material
for the points raised in this appeal but to these we shall advert later.
To resume the narration of facts, there was
issued on October 14, 1946 a notification under ss. 14 and 21 under Bihar Act
III of 1946 of which the operative words were:
"In exercise of the powers conferred by
s. 14 of the said Act the Governor is pleased to declare his intention of
constituting the said forest (described in the 1st Schedule hereto annexed) a
private protected forest and direct that any landlord whose interests are
likely to be affected by the said declaration may, within 3 months from the
date of this notification, present to the Deputy Collector of Palamau an
application in writing stating his objection to the said forest being
constituted a private protected forest." The notification contained a
further paragraph containing a direction purporting to be by virtue of the
power contained in s. 21 "to prohibit every person from cutting,
collecting or removing any tree or class of trees from the forests until the
publication of the notification under s. 29 of the Act." In the Schedule
299 annexed, village Jun was included with details of its location. Against the
column headed "Name of the proprietor" was entered the Raja of Ranka
though, as stated already, the rights over the forest had passed to the Manjhis
whose name had been entered in the revenue records.
It is stated that until October 21, 1946 no
rules had been framed under the Act prescribing the form and contents of the
notification and of the procedure to be followed in the issue of the
notification as well as for the conduct of the subsequent proceedings.
Immediately on the issue of this notification
the officials of the respondent-State prevented the appellant from working the
forest any further.
The appellant at first took proceedings on
the basis of his rights under the Act. Meanwhile as the life of the Bihar Act
III of 1946 was limited by the terms of s. 93 of the Government of India Act,
1935, the Legislature of the Province of Bihar enacted the Bihar Private
Forests Act, 1948 (Act IX of 1948), repealing and reenacting the Governor's
Act. This enactment came into force on March 3, 1948 and its terms, subject to
immaterial variations, were identical with those contained in the Governor's
Act which it replaced. The proceedings taken by the appellant continued even
after Act IX of 1948 came into force. But it is not necessary to refer to the
steps taken by the appellant to assert certain rights and prefer certain claims
under this enactment, because they either failed or were withdrawn at a later
stage and nothing turns on them.
Having failed in these proceedings under the
Act, the appellant filed the suit which has given rise to the present appeal T.
S. 1 of 1952 in the Court of the Subordinate Judge of Daltonganj impleading the
State of Bihar and one A. R. Chaudhuri to whom the right to cut and collect
bamboo and timber in a portion of the area covered by the appellant's contract
was granted by the Government, as the second defendant. The plaint set out the
various proceedings which the plaintiff had taken under the Act, but the
grounds on which he sought the reliefs claimed were 300 rested on: (1) The
Forest Acts of 1946 and 1948 were unconstitutional and void as being in
contravention of the provisions of the Government of India Act, 1935. (2) That
even if valid when originally enacted, their provisions violated the
fundamental rights guaranteed by Part III of the Constitution and could not
therefore be operative or be enforced after January 26, 1950. (3) The
proceedings by which the suit-forest was declared "a private protected
forest" were illegal and invalid principally for the reasons that (a) the
notification under s. 14 did not conform to the requirements of the statute,
(b) the notices required to be served on the landlord under the Act were not served,
and (c) the notifications were not properly published in the village as
required by the Act.
Based on these grounds, the reliefs sought in
the plaint were set out in para. 17 and of these the material ones were: (1) a
declaration that the plaintiff had a right to work the forests by cutting and
carrying away the trees, timber etc. and the bidi leaves which he was entitled
to do under the deeds dated February 23, 1946 and March 15, 1946, executed by
the Manjhis in his favour unaffected by the Bihar Private Forests Act, the
validity of the proceedings under which was impugned, (2) a decree for Rs.
55,000 being the estimated damages suffered by the plaintiff by reason of the
wrongful acts of the Government, (3) restoration to possession of the forest lands
included in the two deeds, and (4) for mesne profits.
The learned Subordinate Judge who tried the
suit, though he held the Act valid, accepted the plaintiff's contention that
the notifications issued under s. 14 and the other provisions of Chapter III of
the Act were invalid, primarily for the reason that the name of the Manjhis as
the landlord had not been mentioned in the notification issued under s. 14 and
on this ground he passed a decree directing the State to restore possession of
the forest to the plaintiff so as to enable him to enjoy the same for a
substituted period making allowance for the 7-1/2 months for which he had
worked the jungle before his enjoyment was interfered in October 1946. In this
view the claim for 301 damages for Rs. 55,000 and for mesne profits was
disallowed.
The State filed an appeal to the High Court
of Patna from this judgment and decree. The learned Judges reversed the decree
of the Subordinate Judge and dismissed the suit with costs, holding that the
omission of the name of the Manjhis in the notification issued on October 14,
1946, did not render the same invalid and that even otherwise the proceedings
under Ch. III of the Act had been validated by s. 2 of Act XII of 1949 to whose
terms we shall refer in due course. In view of the previous decisions of the
High Court which upheld the constitutional validity of the Bihar Private
Forests Act, that point was not pressed in the High Court. The plaintiff
thereafter applied to the High Court for a certificate under Art. 133(1)(a) of
the Constitution and having obtained it has preferred the present appeal. In
the petition of appeal as originally filed, the constitutional points regarding
the validity of the Private Forests Act were not raised, but subsequently the
appellant filed an application under O. XVIII, r. 3(2) of the Supreme Court
Rules for permission to urge additional grounds in support of the appeal which
we granted. The principal ground urged in this application was that the main
operative provisions of the Bihar Private Forests Act, both as originally
enacted in 1946 as well as when reenacted in 1948, were unconstitutional as
contravening the requirements of s. 299(2) of the Government of India Act,
1935.
We consider that it will be convenient to
deal first with the point as to whether, assuming that the Bihar Private
Forests Act, 1946 and 1948 were valid, the proceedings under Chapter III of the
Act for declaring the village of Jun as "a private protected forest"
were legal before considering the question as to the constitutionality of the
Act raised by the additional grounds urged before us. As would have been
noticed even from the narration of the facts, the principal point urged for
impugning the validity of the proceedings under Ch. III of the Act was that the
Manjhis, 39 302 whose name had been entered in the record of rights as the
land-holders of the suit-village of Jun had not been set out in the
notification published under s. 14 of the Act and this was the ground upon
which the learned Subordinate Judge decided the suit in favour of the
appellant. The provisions of s. 14 are in these terms:
"14. Whenever it is proposed by the
Provincial Government to constitute any private forest a private protected
forest, the Provincial Government shall issue a notification (a copy of which
shall be served on the landlord in the prescribed manner)(a) declaring that it
is proposed to constitute such forest a private protected forest;
(b) specifying as nearly as possible, the
situation and limits of such forest; and (c) stating that any landlord whose
interests are likely to be affected if such forest is constituted a private
protected forest may, within such period, not being less than three months from
the date of the notification, as shall be stated in the notification, present
to the Collector in writing any objection to such forest being constituted a
private protected forest.
Explanation-For the purpose of clause (b), it
shall be sufficient to describe the limits of the forest by roads, rivers,
ridges or other well-known or readily intelligible boundaries." It would
be seen that s. 14 contemplates two stages: (1) the issue of a notification,
and (2) the service of the notification, as issued, on the landlord which has
to be in the prescribed manner. The expression 'Landlord' is defined in s. 3(6)
as:
"the owner of the estate or tenure in
which a forest is comprised who is entitled to exercise any rights in the
forest." So far as the notification itself is concerned, which provision
is made for the specification of the three matters which are set out in
sub-cls. (a), (b) and (c), there is no requirement in terms, that the name of
the landlord should be set out. It will further be observed that the
notification enables any person claiming 303 interest as a landlord and who
considers that his interests are likely to be affected by the proceedings taken
to prefer his objections to the declaration as a "private protected
forest". In other words, the notification is a general notice and its aim
is to specify the land in respect of which the declaration is proposed to be
made, so that the emphasis is more upon the identity of the land than about the
person who owns the land or has rights over it.
Besides, the section in terms specifies what
the legal and essential requirements as regards the contents of the
notification are and the ordinary rule of construction would point to those
requirements being exhaustive of what the law demands. If therefore the
specification or mention of the name of the landlord is not an express requirement
of the section, is such a specification or mention a requirement by any
necessary intendment? We have already set out the text of the impugned
notification dated October 14, 1946, and it would be seen that it did mention
the name of the landlord, but this was incorrect in the sense that the Raja of
Ranka who was the proprietor of the estate but who had parted with his rights
over the forests by a mokrari lease in favour of the Manjhis was shown as the
landlord instead of the Manjhis. It was never the case of the appellant that
the mention of the proprietor's name in the notification misled him or anyone
as regards the identity of the land. We might also mention that Mr. Jha,
learned Counsel for the appellant admitted that he could not impugn the validity
of the notification if notwithstanding that the name of the landlord specified
was incorrect, the notification was served upon the proper landlord, It is also
common ground that the appellants took part in the proceedings under Ch. III,
so that he knew the identity of the property which was intended to be dealt
with by the notification.
The succeeding provisions of the enactment
far from supporting the case that the correct specification of the name of the
landlord is a legal pre-requisite of a valid notification, points to the
conclusion that so far 304 as the notification is concerned the name of the
landlord is not a legal requirement. For instance, reference may be made to s.
21 where provision is made for the issue of an order prohibiting, until the
date of the publication of a notification under s. 29, the cutting, collecting
or removal of any trees in any forest. Such an order might be issued
simultaneously with a notification under s. 14 and the order is "to be
published in the neighbourhood of the forest".
Provisions of this sort indicate what we have
already mentioned, that the emphasis in the notification is on specification of
the land and not so much on who the owner or the person interested in it was.
We are therefore clearly of the opinion that the learned Judges of the High
Court were right in holding that the notification under s. 14 did not
contravene the statute.
The next question that arises is whether the
notification which was legal under s. 14, had been properly served on the
interested persons as required by the provisions of Ch. III. The principal
point that was urged to call in question the validity of the service of the
notifications was based on the fact that the notices had to be served under the
terms of s. 14 "in the prescribed manner" and that the rules which
prescribed the manner of service were framed and issued only on October 21,
1946, with the result that any service of notice effected before that date
could not be deemed to be a proper service or a service in accordance with the
rules and therefore of the statute. We might however state that it was admitted
that no notices were, in fact, served. Any enquiry, however, of the validity of
the service of notices required by s. 14 or other provisions of the Act or the
effect of the failure to serve them has been rendered superfluous by the
provisions of s. 2 of the Bihar Private Forests (Validating) Act (Act XII of
1949) which enacted:
"No proceeding or action taken under
section 15, 21 and 29 of the Bihar Private Forests Act, 1946 or under section
15, 21 or 30 of the Bihar Private Forests Act, 1948, or under any other section
of any of the said Acts from the respective dates of commencement of the said
Acts, to the date of 305 commencement of this Act shall be deemed to be invalid
or shall be called in question in any Court, or proceeding whatsoever merely on
the ground that a copy of the notification under section 14 of any of the said
Acts was not served on the landlord, or that there was any defect or
irregularity in the service of such notification, nor shall any suit,
prosecution or other legal proceeding whatsoever, lie in any Court of law
against any servant of the crown for or on account of or in respect of any such
proceeding or action taken by him." The learned Subordinate Judge, by a
process of reasoning which we are unable to follow, held that the terms of this
enactment were insufficient to validate the non-service of the notice on the
landlord as required by s. 14 and the other provisions of Ch. III of the Bihar
Private Forests Act. The learned Judges of the High Court, on the other hand,
held and, in our opinion, correctly, that the effect of the failure to serve
notices or any informality in the service of the notices required by s. 14 and
succeeding sections of the Act was rectified and validated by the Act.
In agreement with the learned Judges of the
High Court we hold that the proceedings taken under Ch. III of the Act,
including the notification issued under s. 14 were valid and in accordance with
the law and that if the Bihar Private Forests Act were valid the plaintiff
could have no legal ground of complaint which he could agitate in the suit and
that the suit was therefore properly directed to be dismissed.
This leaves the question of the
constitutional validity of the Act for consideration. It is necessary to state
at the outset, that under the deeds dated February 23, 1946 and March 15, 1946,
the status of the appellant quod the Manjhis is only that of a licensee or
contractor having the right to cut and remove the trees etc. and not that of a
lessee.
This was the conclusion reached by the
Subordinate Judge on the relevant terms of the two deeds and this was
apparently not even challenged in the High Court. On this basis the only
provisions of the Act which could be said to directly invade the rights of the
appellant are those 306 contained in Ch. III the material sections of which we
have already set out. As provision is made in s. 22 of the Act for the
ascertainment and payment of compensation to forest contractors whose rights
were either modified or extinguished, the plea that there was a violation of
the guarantee against acquisition by the State without compensation contained
in s. 299(2) of the Government of India' Act, 1935, would be seen to have no
factual foundation. But learned Counsel for the appellant urged that the
extinction of the rights of contractors under the provisions of Ch. III, was
really in the nature of an ancillary provision complementary to and designed to
render effective, the taking over of the management of "private protected
forests" under Ch. IV (to which we shall immediately advert) and that if
the taking over of the management was constitutionally impermissible, the
provisions of Ch. III must also be struck down as unconstitutional. We see
force in this contention and will therefore consider the constitutional
validity not so much of Ch. III as of Ch. IV.
When a private forest is declared a
"private protected forest" under the provisions of Ch. III the
provisions of Ch. IV come into operation. Section 31 with which this Chapter
opens enacts:
"31. The control and management of every
private protected forest shall vest in the Provincial Government." The
management and control thus vested is to be exercised through forest officers
and s. 32 provides:
"32. The Provincial Government shall, by
notification, appoint a Forest-Officer for the purposes of each private
protected forest or of a specified portion of each private protected
forest." His powers are defined by the succeeding sections and next we
have s. 35 which defines the limits subject to which the landlord is permitted
to remove timber and other produce from private protected forests whose control
vests in the Provincial Government under s. 31, and s. 36 enables the Collector
to grant permission to the landlord to erect embankments at suitable places
within the forest for the purpose of irrigating 307 the land beyond the
boundaries of the said forest. The section that follows is important and so we
shall set it out in full:
"37. The Provincial Government shall
receive all revenues accruing from the working and management of a private
protected forest and shall pay the whole expenditure incurred in the working
and management of such forest, and the landlord of such forest or any other
person shall not be entitled to make any objection to any expenditure that the
Provincial Government may consider it necessary to incur on such working and
management." Section 38 requires the Provincial Government to maintain the
revenue and expenditure account with an obligation to supply an extract of the
yearly account to the landlord of such forests. The disbursement of the
revenues which it receives or the income which it collects under s. 37 is
provided for by s. 39 which runs:
"39. (1) The Provincial Government
shall, during the period of its control and management of any private protected
forest pay, at prescribed intervals, to the landlord of the forest(a) an
allowance calculated on the total area of the forest as determined by the
Conservator of Forests at the rate of one anna per acre per annum or such
higher rate not exceeding one anna and six pies per acre per annum as the
Provincial Government may, from time to time, by general or special order,
determine; and (b) the net profits, if any, accruing from the working and
management of the forest, (2) For the purpose of calculating the net profits,
the total expenditure incurred on the working and management of the forest
shall be adjusted against the total income from the working and management up
to the date of account and the amount of any deficit shall be carried forward
with interest at the prescribed rate from year to year till such amount is made
up and surplus is effected.
(3). . . . . . . . . . . . . . . . . .
." 308 and s. 40 which might be termed a residuary provision reads:
"40. The rights of right-holders in a
private protected forest shall be exercised in accordance with the rules."
It is only necessary to add that the provisions contained in the re-enacted Act
IX of 1948 are substantially identical except as to variation in the numbering
of the sections and it is therefore unnecessary to cumber this judgment with a
reference to the corresponding provisions of that enactment.
In the main, the argument of Mr. Jha, learned
Counsel for the appellant on this point was based on the reasoning contained in
the judgment of a Special Bench of the Patna High Court in M. D. Kameshwar
Singh v. State of Bihar (1) where the learned Judges held the Bihar State
Management of Estates and Tenures Act, 1949, to be ultra vires of the powers of
the Provincial Legislature as contained in the Government of India Act, 1935.
The Act there impugned was one which was described as an "Act to provide
for the State Management of estates and tenures in the Province of Bihar".
Provision was made for Government notifying
any estates or tenures in the Province and on such notification the management
of the estate or tenure was to vest in an officer designated by the Act. On
such management being taken over, the power of the proprietor or tenure-holder
to manage the estate was to cease and he was rendered incompetent to deal with
or have any right to create interests in the property by way of mortgage or
lease. The rents and profits accruing from the estate were to be payable to and
to be collected by the Manager who alone was, under the statute competent to
grant valid receipts therefore. There were special provisions empowering the
Manager to order the removal of mortgagees or lessees-in-possession by virtue
of agreements with the proprietor or tenure-holder. Special provisions were
also made for dealing with the claims of creditors-both secured and unsecured.
Section 20(5) of the Act made provision for the disposal of the (1) (1950)
I.L.R. 29 Patna 790.
309 income, rents and profits received by the
manager. They were to be applied first for the payment of revenue to
Government, then to municipal rents, next to costs of management and
supervision, then for an allowance to the proprietor to be fixed by rules made
by Government, and any surplus remaining thereafter was to be paid to the
proprietor at, the end of each financial year with power, however, to the
manager to retain such portion of the surplus which he might consider necessary
as a working balance for the ensuing year. The manager was to have power to
contract loans on the security of the estate or tenure.
The jurisdiction of the civil courts was
barred in respect of matters for which provision was made by the Act. Though
there was a direction that the manager should have his accounts audited with a
right to the proprietor or tenureholder to inspect these accounts, in cases
however where these accounts were not audited the right of the proprietor was
merely to draw the attention of the Government to the lapse, with however a bar
on enforcing such rights by resort to the courts even in the event of the
Provincial Government not taking any action.
The validity of the enactment was challenged
principally on two grounds: (1) that an Act of this sort which deprived the
proprietors and tenure-holders of possession of their property for no default
on their part and for no justifiable reason grounded on public interest was
beyond the legislative competence of the Province, (2) that even if competent, it
amounted to "an acquisition of property without compensation" and for
a purpose which was not a public purpose so as to be repugnant to the
provisions of s. 299(2) of the Government of India Act, 1935. Justice Shearer
and Justice Sinha, as he then was, were of the opinion that the Act in question
was beyond the legislative competence of the Province under item 21 of the
Provincial Legislative List. Justice Das, as he then was, being the other
learned Judge constituting the Special Bench however took the view that the
variety of matters set out in Entry 21 of the Provincial Legislative List was
wide enough to include legislation of 40 310 the type then before the Court.
Both Sinha and Shearer JJ.
were of the opinion that the Act violated the
requirements of s. 299(2). Learned Counsel-Mr. Jha-submitted that there was,
under the Bihar Private Forests Act, 1946 and 1948, the same type of
deprivation of possession and management of the proprietor or tenure-holder,
the same restrictions placed upon enjoyment, and a similar vesting of powers
and duties on the officers of the State Government as the manager of the estate
under the Bihar Act of 1949 and on these premises he contended that on the same
line of reasoning, the Act now impugned should be held to be both beyond the
competence of the Provincial Legislature as well as unconstitutional as
violating the requirements of s. 299(2) of the Government of India Act, 1935.
Before entering on a discussion of the points urged we should add that the
constitutional validity of the Acts now impugned has been the subject of
decision of the Patna High Court on two occasions and these judgments are
reported in Sm. Khemi Mahatani v. Charan Napit (1), and K.B.N. Singh v. State
(2). In both of them the learned Judges of the High Court have distinguished
the decision in Kameshwar Singh v. State of Bihar (3) and have upheld the
validity of the Acts now impugned.
Learned Counsel for the appellant formulated
three points in support of his plea regarding the invalidity of the impugned
enactment and its application to the petitioner: (1) that the Bihar Private
Forests Acts of 1946 and 1948 were beyond the competence of the Provincial
Government-not being within the legislative entries in the Provincial
Legislative List in Sch. VII of the Government of India Act, 1935, (2) that
even if tile legislation was competent in the sense of being covered by the
entries in the List, the same was unconstitutional as being in contravention of
the constitutional requirements of s. 299(2) of the same Act, (3) that even if
the legislation were competent and also constitutionally valid under the
Government of India Act, 1935, its provisions could not be enforced (1) A.I.R.
1953 Patna 365. (2) (1956) I.L.R. 36 Patna 69.
(3) (1950) I.L.R. 29 Patna 790.
311 against the petitioner after the
Constitution came into force on January 26, 1950, as the provisions of the
enactment contravened Arts. 19(1)(f) and 31(2) of the Constitution.
We shall now proceed to deal with these
points in that order: (1) Legislative incompetence under the Government of
India Act, 1935.-The argument of learned Counsel on this head was half-hearted
and was based on reliance on passages in the judgment of the Special Bench of
the Patna High Court in Kameshwar Singh v. State of Bihar(1). It is not
necessary for the purposes of this case to canvass the question as to whether
the taking over, for better management, of an estate in the manner as was done
by the Bihar Act of 1949 is or is not within item 21 of the Provincial
Legislative List in Sch. VII to the Government of India Act, 1935. The
enactments now impugned are certainly in relation to "forests" and
fall within item 22 of the Provincial Legislative List which reads "22.
Forests". It is not necessary to decide
whether entry 21 dealing with "Land etc." would cover legislation on
forests, because of the special provision in Entry 22 in relation to
"forests"-an entry which has come down from the Devolution Rules
under the Government of India Act, 1919. In our opinion, the item "Forests"
would permit all and every legislation which in pith and substance, to use a
phrase familiar in this branch of the law, was on the subject of
"forests". It is not possible to argue that the two Acts here
impugned do not satisfy this test.
Learned Counsel faintly suggested that item
22 'Forests' would not cover legislation regarding "management" of
forests. We consider this submission wholly without substance. The
considerations arising from the width or amplitude to be attached to the meaning
of expressions dealing with the conferment of legislative power occurring in a
constitutional document should suffice to reject this submission. In this
connection we might refer to the decision of the Federal Court in
Administrator, Lahore Municipality v. Daulat Ram Kapur (2) which dealt with the
scope (1) (1950) 1 L. R, 29 Patna 790.
(2) [1942] F.C.R. 31.
312 of the entry 'Salt' in the Central
Legislative List in Sch. VII.
Besides, reference may be made also to the
legislative practice which preceded the Government of India Act, 1935, as
having relevance to the understanding of the scope and ambit of the entry. The
Indian Forests Act of 1878 which repealed the earlier enactments and
consolidated the law in relation to the control over forests primarily dealt with
forests which were the property of the Government or in which Government had
proprietary rights. But it had also a chapter-Ch. VI-dealing with "control
on forests or land not being the property of the Government". Section 35
of the Act enabled the local Government by a notification in the local official
gazette to regulate the maintenance of forests for particular purposes and pass
orders in that behalf, and s. 36 enacted that "in case of neglect of, or
wilful disobedience to, such regulations", and what is more important,
"if the purposes of any work to be constructed under s. 35 so
require", the local Government may, after notice in writing to the owner
of such forest or land and after considering his objections, if any,
"place the same under the control of a Forest-officer, and may declare
that all or any of the provisions of the Act relating to reserved forests shall
apply to such forest or land.
The net profits, if any, arising from the
management of such forest or land shall be paid to the said owner."
Statutes with similar provisions were also enacted by various local
Legislatures (vide, for example, Madras Forests Act, 1882). This Central
enactment of 1878 was repealed and re-enacted in a consolidated form by the
Indian Forests Act, 1927. Chapter V of the later statute-ss. 35 and 36
thereof-reproduce in practically the same terms the provisions of the Act of
1878 in relation to the taking over the management of private forests. As we
are now dealing with the legislative power in this regard, we are not so much
concerned with the grounds upon which the Government could take over and manage
forests belonging to 313 private proprietors, as with the practice of the
Government taking over the management of the forests if public interests so
require. This interest might vary from time to time but the above legislation
would show that if public interest did require, the Act authorized Government
to take over the management of private forests on terms of making over the
income received to the proprietor.
It is unnecessary to dilate upon the role of
forests in a country whose economy is predominantly agricultural and it has
been this aspect that has prompted the legislation to which we have just now
adverted. Apart from being an important source of fuel and of raw materials
necessary for domestic, industrial and agricultural purposes, their
preservation is essential for the development of cattle wealth by providing
grazing grounds. Their function in the conservation of soil-fertility and in
the maintenance of water regime by improving the filth and the water-holding
capacity of the soil cannot be exaggerated. They protect the land against
excessive soil-erosion caused either by rainfall or against a desiccation and
erosion by winds.
Their beneficial influence on the growth of
crops and on the maintenance of an equitable climate cannot be over-stressed
(vide First Five Year Plan, p. 285). Thanks to the inroads made on forest wealth
owing to the necessities created by the war, we had the spectacle of large
forest areas denuded of their timber, a forestation making either a slow
progress or not attempted at all. So long as the war continued the sacrifice of
the forests was one of the incidents which the country had to bear as part of
the war-effort but owing to the high prices of fuel and timber, the practice of
denudation of forests, which started during the wartime, continued and
landholders owning private forests sought to make quick gains by leasing out
their forests for large scale cutting. In these circumstances public interest
and national economy required that this process should be stopped and the
ravages caused by wartime destruction should be made good by scientific
management and regulation of forests and by a process of afforestation. It was
314 in these circumstances that in several Provinces of India during the year
1946 when these Provinces were under the rule of Governors under s. 93 of the
Government of India Act, 1935, enactments were passed vesting in Government
power to take over and manage for the purposes abovementioned areas of
forest-lands belonging to private persons. The situation, therefore, demanded
that there should be a large extension of the grounds upon which such private
forests would be taken over for better management by the State officials as
compared with Ch. V of the Indian Forests Act, 1927. The correlation between
Bihar Act III of 1946 now impugned and the Indian Forests Act, 1927, is brought
out in the long title of ,the former, the operative words of which are repeated
in the preamble:
"An Act to provide for the conservation
of forests which are not vested in the Crown or in respect of which
notifications and orders issued under the Indian Forests Act, 1927 are not in
force." The impugned Act was therefore an Act supplementary to, or rather
a complement of the Indian Forests Act of 1927 and is clearly covered by the
Entry 'Forests' in item 22 of State Legislative List. The argument, therefore,
that Entry 22 enabled a legislation to be passed in relation to
"forests" but did not include therein the power to assume management
and control of forests belonging to private proprietors is entirely without
foundation. In view of what we have just now stated it would follow that the
argument concerning the legislative competence to enact the Bihar Acts of 1946
and 1948 must be rejected.
The next submission to be considered is
whether the impugned -enactments violate s. 299(2) of the Government of India
Act, 1935. Section 299(2) runs in these terms:
"299(2). Neither the Federal nor a
provincial Legislature shall have power to make any law authorising the
compulsory acquisition for public purposes of any land, or any commercial or
industrial undertaking, or any interest in, or in any company owning, any
commercial or industrial undertaking, 315 unless the law provides for the
payment of compensation for the property acquired and either fixes the amount
of compensation, or specifies the principles on which, and the manner in which,
it is to be determined." The main, if not the entire argument of learned
Counsel for the appellant on this point was vested on certain passages found in
the decision of this Court in Dwarkadas Shrinivas of Bombay v. The Sholapur
Spinning & Weaving Co. Ltd. (1).
The validity of the law that was there
considered was a post-Constitution enactment (Act XXVIII of 1950 dated April
10, 1950) which replaced an Ordinance issued in January, 1950. The rights of
the appellant before this court had to be considered in the light of the
guarantees contained in Part III of the Constitution. Under the provisions of
the enactment there impugned the management of the Sholapur Spinning &
Weaving Co. Ltd., was taken over by the Government and the question that was
debated was whether this taking over amounted to "an acquisition"
such as is referred to in Art. 31(2) of the Constitution in these terms:
"31(2). No property shall be
compulsorily acquired or requisitioned save for a public purpose and save by
authority of a law which provides for compensation for the property so acquired
or requisitioned 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; and no such law shall be called in question in any court
on the ground that the compensation provided by that law is not adequate."
Mahajan, J. (as he then was) who delivered the majority decision of the Court
in dealing with this point expressed himself in these terms:
"The next contention of the learned
counsel that the word 'acquisition' in article 31(2) means the acquisition of
title by the State and that unless the State becomes vested with the property
there can be no acquisition within the meaning of the clause (1) [1934] S.C.R.
674.
316 and that the expression 'taking
possession' connoted the idea of requisition cannot be sustained and does not,
to my mind, affect the decision of the case For the proposition that the
expression 'acquisition' has the concept of vesting of title in the State
reliance was placed on the opinion of Latham, C. J. in Minister of State for
the Army v. Dalziel ........................... Latham, C.
J., made the following observations:
'The Commonwealth cannot be held to have
acquired land unless it has become the owner of land or of some interest in
land. If the Commonwealth becomes only a possessor but does not become an owner
of land, then, though the Commonwealth may have rights in respect to land,
which land may be called property, the Commonwealth has not in such a case
acquired property......... The majority of the Court held otherwise and
expressed the opinion that the taking by the Common-wealth for an indefinite
period of the exclusive possession of property constituted an acquisition of
property within the meaning of section 51 (xxxi) of the Constitution. This is
what Rich, J. said, representing the majority opinion: 'It would, in my
opinion, be wholly inconsistent with the language of the placitum to hold that,
whilst preventing the legislature from authorizing the acquisition of a
citizen's full title except upon just terms, it leaves it open to the
legislature to seize possession and enjoy the full fruits of possession,
indefinitely, on any terms it chooses, or upon no terms at all.' the expression
'acquisition' in our Constitution as well as in the Government of India Act is
the one enunciated by Rich, J., and the majority of the Court in Dalziel's
case. With great respect I am unable to accept the narrow view that
'acquisition' necessarily means acquisition of title in whole or part of the property.
" Learned Counsel naturally relied on the reference to 317 the provisions
of the Government of India Act contained in the above passage. Before we deal
with this argument, however, we consider it proper to refer to the judgment of
this Court in State of West Bengal v. Subodh Gopal Bose (1), which was composed
of four of the Judges who formed the bench in the case of Dwarkadas Shrinivas,
etc. (supra) and in which judgment was delivered almost at the same time
(December 17 and December 18). In the West Bengal case, the leading judgment
was delivered by Patanjali Sastri, C. J., Mahajan, J., merely expressing his
concurrence stating that the principles enunciated by the learned Chief Justice
were the same as those which he had formulated in the Sholapur case. It is
because of this context that the manner in which this point was dealt with by
Patanjali Sastri, C. J., assumes more importance. It was urged before the Court
that the meaning of the word "acquired" in the phrase 'taken
possession of or acquired' in Art. 31(2) as it then stood, connoted nothing
more than and was intended to confer the identical guarantee as was contained
in s. 299(2) of the Government of India Act, 1935, which had used the
expression 'acquired', the words 'taken possession of' being added merely to
overcome the decisions which had held that requisitioning of property was not
within the constitutional protection. It was therefore urged that the words
'acquired' or 'taken possession of' implied that the legal title in the
property passed to the State and could not be taken to signify or include forms
of deprivation of private property which did not involve the element of the
passing of title to the State. Repelling this argument the learned Chief
Justice said:
"I see no sufficient reason to construe
the words 'acquired or taken possession' used in clause (2) of article 31 in a
narrow technical sense. The Constitution marks a definite break with the old
order and introduces new concepts in regard to many matters, particularly those
relating to fundamental rights, and it cannot be assumed that the ordinary (1)
[1954] S.C.R. 587.
41 318 word acquisition' was used in the
Constitution in the same narrow sense in which it may have been used in
pre-Constitution legislation relating to acquisition of land. These enactments,
it should be noted, related to land, whereas article 31(2) refers to moveable
property as well, as to which no formal transfer or vesting of title is
necessary.
Nor is there any warrant for the assumption
that 'taking possession of property' was intended to mean the same thing as '
requisitioning property' referred to in the entries of the Seventh Schedule I
am of opinion that the word 'acquisition' and its grammatical variations
should, in the context of article 31 and the entries in the Lists referred to
above, be understood in their ordinary sense, and the additional words 'taking
possession of' or requisitioning' are used in article 31(2) and in the entries
respectively, not in contradiction of the term 'acquisition', so as to make it
clear that the words taken together cover even those kinds of deprivation which
do not involve the continued existence of the property after it is acquired The
expression 'shall be taken possession of or acquired' in clause (2) implies such
an appropriation of the property or abridgement of the incidents of its
ownership as would amount to a deprivation of the owner." It would be seen
from the extracted passages in the two judgments, that the reference to the
meaning of "acquired" in s. 299(2) of the Government of India Act,
1935 made by Mahajan, J., as he then was, in Dwarkadas Shrinivas (1) was but an
incidental remark. by way of orbiter and was not and was not intended to be, a
decision regarding the scope or content of that section. If support were needed
for this position, reference may be made to the observations of Das, Acting C.
J. in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (2). The learned
Chief Justice said:
"Prior to the Constitution when there
were no fundamental rights, s. 299(2) of the Government of India Act, 1935,
which corresponds to Art. 31 had (1) [1954] S.C.R. 674. (2) [1955] 2 S.C.R.
589.
319 been construed by the Federal Court in
Kunwar Lal Singh v. The Central Provinces (1944 F.C.R. 284) and in the other cases
referred to in Rajah of Bobbili v. The State of Madras (1952 1 M.L.J. 174) and
it was held by the Federal Court that the word ,;acquisition' occurring in s.
299 had the limited meaning of actual transference of ownership and not the
wide meaning of deprivation of any kind that has been given by this Court in
Subodh Gopal Bose's case (1954 S.C.R. 587) to that word acquisition appearing
in article 31(2) in the light of the other provisions of the
Constitution." During the years when the Government of India Act, 1935,
was in operation the Privy Council had no occasion to pronounce upon the
meaning of s. 299(2), but we might, however, usefully refer to the recent
decision of the House of Lords in Belfast Corporation v. O. D. Cars Ltd. (1)
where the Ilouse had to consider the import of the expression 'take any
property' occurring in a similar context in the Government of Ireland Act, 1920
(X & XI George V, Ch. 67), s. 5(1) where the relevant words were:
"In the exercise of their power to make
laws neither............ the Parliament of Northern Ireland shall make a law so
as to either directly or indirectly............... take any property without
compensation." The facts in the case before the House of Lords were that
the respondent who carried on business as garage proprietors and general motor
engineers made an application to the appellant for the grant of permission to
erect certain factories and shops on its land. This was refused on the ground
that the height and character of the proposed buildings would not be in
accordance with the requirements of the zone in which the site was situate. The
respondent thereupon claimed compensation for injurious affection on the ground
that its property had been "taken". The Court of Appeal of Northern
Ireland upheld the respondent's claim and the appellant Corporation brought the
matter in appeal to the House of Lords. The (1) [1960] A.C. 490.
320 argument pressed before the House, and
which found favour with the Court below in Ireland, was based on the extended
meaning of the word 'acquired' attributed to it in the decisions of the Supreme
Court of the United States which have been referred to and adopted this Court
in Dwarkadas Shrinivas etc. (1) and in Subodh Gopal Bose's cases (2).
Viscount Simonds, delivering the leading
judgment, observed:
"I come then to the substantial
questions:
what is the meaning of the word 'take'? what
is the meaning of the word 'Property'? what is the scope of the phrase 'take
any property without compensation'? ......... I hope that I do not oversimplify
the problem, if I ask whether anyone using the English language in its ordinary
signification would say of a local authority which imposed some restriction
upon the user of property by its owner that authority had 'taken' that owner's 'property'.
He would not make any fine distinction
between 'take', 'take over' or 'take away'. He would agree that `property' is a
word of very wide import, including intangible and tangible property. But he
would surely deny that any one of those rights which in the aggregate
constituted ownership of property could itself and by itself aptly be called
'property' and to come to the instant case, he would deny that the right to use
property in a particular way was itself property, and that the restriction or
denial of that right by a local authority was a 'taking ', 'taking away' or
'taking over' of 'property Fully recognizing the distinction that may exist
between measures that are regulatory and measures that are confiscatory and
that a measure which is ex facie regulatory may in substance be
confiscatory....." Lord Radcliffe followed on the same lines and referred
in this context to Slattery v. Naylor (3), where the validity of a municipal
bye-law which prevented an owner from using the property which he had purchased
ground-for the only purpose for which it could (1) [1954] S.C.R. 674. (2)
[1954] S.C.R. 587.
(3) (1888) 13 App. Cas. 446.
321 be used was upheld by the Judicial
Committee as not amounting to depriving an owner of his property without
compensation.
We consider the principles laid down in the
Belfast case (supra) apt as an aid to the construction of the content of the
expression "acquired" in s. 299(2) of the Government of India Act,
1935. The contention urged by learned Counsel for the appellant that the
deprivation of the land-holder of the right of management and control over the
forest without his legal title thereto or beneficial enjoyment thereof being
affected amounts to acquisition of land within s. 299(2) of the Government of
India Act, 1935 must be rejected. The extract we have made earlier from the
judgment of Viscount Simonds affords a sufficient answer to a submission that
the right of the landholder to possession was itself a right of property and as
this had been taken over it constituted an acquisition within the
constitutional provision. Property, as a legal concept, is the sum of a bundle
of rights and in the case of tangible property would include the right of
possession, the right to enjoy, the right to destroy, the right to retain, the
right to alienate and so on. All these, of course, would be subject to the
relevant law-procedural or substantive-bearing upon each of these incidents,
but the strands that make up the total are not individually to be identified as
those constituting "property". So understood, there is no scope for
the contention that the imposition, so to speak, of a compulsory Governmental
agency for the purpose of managing the forest with liability imposed to account
for the income as laid down by the statute is an "acquisition" of the
property itself within s. 299(2) of the Government of India Act, 1935.
A very minor point was urged by the learned
Counsel based upon the language of sub-s. (5) of s. 299 which reads:
"299 (5). In this section 'land' includes
immovable property of every kind and any rights in or over such property, and
'undertaking' includes part of an undertaking." 322 Learned Counsel
suggested that the right to possession, management and control over the estate
was "a right in or over such property" and that if it was so
construed, the taking over of such a right would be tantamount to
"acquisition of land" within s. 299(2). There is no substance in this
argument, because the rights referred to in s. 299(5) are 'derivative rights,
like interests carved by an owner-a lessee, mortgagee etc.-and not an incident
of a property right regarding which we have already expressed ourselves. We
therefore hold that the impugned enactments were validly enacted and are not
obnoxious to the provisions of the Government of India Act, 1935.
There remains for consideration the third
point urged that even if the Bihar Private Forests Acts, 1946, and 1948 were
valid when enacted, the relevant provisions cannot be enforced against the
appellant on the ground that the enforcement would violate the fundamental
rights granted to the appellant by Arts. 19 and 31 of the Constitution. The
argument was this: The lease in favour of the appellant was for terms of 8 or 9
years and would have continued, if nothing else had happened, till certain
dates in 1954 and 1955. He has, however, been deprived of the benefit of the
lease by the operation of the impugned legislation and the appellant's rights
which he could have otherwise enjoyed beyond January 26, 1950 have been denied
to him, and this is tantamount to the impugned enactments operating beyond
January 26, 1950. In support of this submission learned Counsel invited our
attention to a passage in the judgment of this Court in Shanti Sarup v. Union
of India(1). That case was concerned primarily with the constitutionality of an
order dated October 21, 1952 passed by the Central Government under s. 3(4) of
the Essential Supplies (Temporary Powers) Act, 1946, by which the
petitioner-firm was dispossessed of a textile-mill which they owned and
managed. There had been an earlier order of the State Government dated July 21,
1949, also which was similarly impugned. B. K. Mukherjea, J., as he then was,
who spoke for the (1) A.I.R. [1955] S.C. 624, 628.
323 Court, after pointing out that the order
of the Central Government was not supportable under the terms of the enactment
under which it was made and therefore had deprived the petitioner of his
property under Art. 31 of the Constitution proceeded to add: "But even
assuming that the deprivation took place earlier and at a time when the
Constitution had not come into force, the order effecting the deprivation which
continued from day to day must be held to have come into conflict with the
fundamental rights of the petitioner as soon as the Constitution came into
force and become void on and from that date under Art. 13(1) of the
Constitution." We are unable to construe these observations as affording
any assistance to the appellant. The lease or licence which the appellant had
obtained by contract from the landholder was put an end to, once and for all by
virtue of the provisions contained in s. 22 of the impugned enactment which
made provision for compensation for the extinguishment of those rights. That
took place long before the Constitution, in 1946. We have held that the
legislation under which the appellant's rights were extinguished, subject to
his claim for compensation, was a valid law. It would therefore follow that the
appellant could have no rights which could survive the Constitution so as to
enable him to invoke the protection of Part III thereof. On this point also we
must hold against the appellant.
The result is the appeal fails and is
dismissed with costs.
Appeal dismissed.
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