PETITIONER: GURU DATTA SHARMA Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 24/04/1961 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: 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 This Act was repealed and reenacted by Bihar Act 9 Of 1948.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 compe- tence 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 a 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. JUDGMENT:
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 con-
sideration 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 notifi-
cation, 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 appel-
lant 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 defen-
dant. 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 therfore 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 im-
mediately advert) and that if the taking over of the
management was constitutionally impermissible, the
provisions of Ch. III must also be struck down as un-
constitutional. 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 pri-
vate 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 manage-
ment.”
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 therefor. 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 tenure-
holder 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
waterregime 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 forestwealth owing to the necessities created by the
war, we had the spectacle of large forest areas denuded of
their timber, afforestation 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 ade-
quate.”
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 I-
louse 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 over- simplify 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 reject-
ed. 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.
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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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