State of Bihar vs Lt. Col. K. S. R. Swami

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 354 of 1957

Decision Date: 22 September 1961

Coram: Das Gupta

In the appeal titled State of Bihar versus Lieutenant Colonel K. S. R. Swami, decided on 22 September 1961 by a bench of the Supreme Court of India, the petitioner was the State of Bihar and the respondent was Lieutenant Colonel K. S. R. Swami. The matter concerned the interpretation of provisions of the Bihar Private Forest Act, 1947 (Bihar Act 9 of 1948), specifically section 30 and its proviso, together with the Bihar Protected Forest Rules, particularly rules 1 to 4 and rule 8, in the context of forest land reclamation and the extinction of rights under section 19 of the same Act. The respondent, who had been inducted as a tenant of a tract of land measuring 245.69 acres in the village of Singpur in November 1945, continued in possession of that land after the zamindari interest of the original proprietor vested in the State Government under the Bihar Land Reforms Act, 1952. The government subsequently issued a notification declaring its intention to constitute the forest a private protected forest and later, by a separate notification made under section 30 of the Indian Forest Act, prohibited the breaking up or clearing of this and certain other protected forests for cultivation. Following that prohibition, employees of the Forest Department began interfering with the agricultural operations that the respondent was conducting on the land. In order to continue cultivation, the respondent applied to the Collector for permission to commence reclamation and cultivation of the area, and the Collector granted such permission, authorising the respondent to “go ahead with the work of reclamation and cultivation of this area.” The Forest Officer, however, disregarded the Collector’s order and directed the respondent to cease reclamation activities. The Government later intervened, insisting that the Collector’s order be withdrawn. The principal questions presented for determination were: (1) whether the order issued by the Forest Officer, grounded in the Bihar Protected Forest Rules which barred cutting or removal of trees without the Forest Officer’s permission, should prevail over the permission granted by the Collector under rule 8; and (2) whether the respondent’s right to the land had been extinguished under section 19 of the Bihar Private Forests Act. The Court held that rules 1 to 4 of the Bihar Protected Forest Rules applied only to the cutting or removal of trees where, despite such cutting, the land would continue to remain a forest; those rules did not govern the cutting of trees required for clearing the land for cultivation or any other purpose, which was regulated solely by rule 8. Accordingly, the permission granted by the Collector under rule 8 was lawful, and neither the Forest Officer nor the Government possessed any legal authority to interfere with that permission for the purpose of clearing or cultivating the land. Furthermore, the Court clarified that extinction of rights under section 19 could occur only after the publication of a final notification under section 30, and not merely by a notification issued under the proviso of that section pending the completion of inquiries contemplated by the Act. The judgment was rendered in the civil appellate jurisdiction concerning Civil Appeal No. 354 of 1957, an appeal from the judgment and decree dated 7 October 1955 of the Patna High Court.

Miscellaneous Judicial Case No. 422 of 1954 was heard on 22 September 1961, and the judgment was delivered by Justice Das Gupta. The appeal was filed by the State of Bihar challenging the correctness of an order that the Patna High Court had made in an application filed by the respondent under Article 226 of the Constitution. The respondent had been inducted as a tenant of a tract of land measuring 245.69 acres in the village of Singpur by the then proprietor in November 1945. He continued to remain in possession after the zamindari interest of the proprietor became vested in the State of Bihar by a notification issued under the Bihar Land Reforms Act (Bihar Act XXX of 1952) on 30 December 1952. At the time of his tenancy in 1945 the area was classified as forest land. On 15 September 1946 a notification was published under section 14 of the Bihar Private Forest Act, 1946 declaring the Government’s intention to constitute the forest a private protected forest. By the same notification the Governor ordered that, until a further notification under section 30 of the Act was published, all rights to cut, collect and remove trees or any class of trees in or from the forest would cease to exist, subject to the conditions and specifications laid down in the Second Schedule. Consequently, as soon as the notification appeared in the Government Gazette, the respondent’s right to cut, collect and remove trees terminated for as long as the forest remained a private forest. On 6 April 1948 a notification under the proviso to section 30 of the Bihar Private Forest Act was issued. After the forest land vested in the State on 30 December 1952, a further notification dated 22 January 1953—agreed by both parties—was issued in substance under the proviso to section 29 of the Indian Forest Act, 1927, thereby making the forests in Singpur Village protected forests. On 29 May 1953 another notification under section 30 of the Indian Forest Act prohibited the breaking up or clearing of this and certain other protected forests for cultivation. Local employees of the Forest Department, acting under the Divisional Forest Officer, Gaya, began interfering with the agricultural operations carried out by the petitioner on the strength of the 29 May 1953 notification. The respondent therefore sought permission from the Collector of Gaya to commence reclamation and cultivation of the land. On 22 April 1954 the Collector of Gaya granted the petitioner permission to proceed with reclamation and cultivation. Nevertheless, the Forest Officer ignored the Collector’s orders and directed the petitioner to halt reclamation. When the appellant approached the Collector, the Collector summoned the Forest Officer to provide an explanation for his deliberate disregard of the Collector’s orders.

The Collector was asked to obtain from the Forest Officer a written explanation for deliberately contravening the Collector’s earlier orders. Subsequently, the Government of Bihar transmitted a telegram to the Collector of Gaya on 10 June 1954, requesting that the Collector’s order dated 22 April, which had permitted the respondent to proceed with reclamation, be withdrawn pending a governmental decision on the matter. On the following day, 11 June 1954, the Collector forwarded a copy of this telegram to the respondent for his information and for any necessary action. No further order appears to have been issued by the Government on this issue.

On 2 August 1954, the respondent filed an application before the Patna High Court seeking an appropriate writ. The writ was intended to cancel the Bihar Government’s directions of 10 June 1954 to the Collector and to restrain both the Government of Bihar and the Forest Officer from interfering with the petitioner’s possession of the land in Singpur village. The petitioner argued that, since the forest had become a protected forest under Chapter IV of the Indian Forest Act, the Collector was the proper and competent authority to grant permission for clearing or breaking up the land for cultivation. This permission, the petitioner maintained, was given under Rule 8 of the Bihar Protected Forest Rules, which were made pursuant to the power conferred by section 32 of the Indian Forest Act, 1927. Accordingly, the petitioner contended that neither the Forest Officer nor the Government of Bihar could lawfully interfere with his activities based on that permission.

The State of Bihar opposed the petition. It asserted that the Collector’s order was ineffective in view of Rule 4 of the Bihar Protected Forest Rules, which, under section 32, prohibited any person from cutting, converting, removing, or otherwise dealing with forest trees except in accordance with Rules I, II, and III. Additionally, the State argued that the petitioner’s right to the disputed land had been extinguished under section 19 of the Bihar Private Forests Act, IX of 1948, following the publication of a notification by the Government of Bihar under the proviso to section 30 of that Act.

The High Court rejected the State’s contention regarding extinction. It held that extinction could occur only after the final notification under section 30 had been published, and since such a final notification was not issued, section 19 could not be applied to the present case. The Court further held that when a Collector grants permission under Rule 8 of the Bihar Protected Forest Rules, the Divisional Forest Officer does not possess the authority to interfere under Rules 1 to 4 of the same Rules. Consequently, the High Court allowed the petitioner’s petition, issuing an order that set aside the State Government’s directive conveyed in the 10 June telegram and the earlier order of the Forest Officer that had prohibited reclamation of the disputed land.

The Forest Officer dated 1 May issued an order that prohibited the petitioner from reclaiming the land that was in dispute. In the present appeal, counsel for the petitioner, Mr Jha, raised both of the grounds on which the High Court had rejected the petition. The first ground asserted that the petitioner’s right to the land had ceased under section 19 of the Bihar Private Forests Act. The second ground contended that the order issued by the Forest Officer, which was based on Rule 4 of the Bihar Protected Forests Rules, should be given effect over the permission that the Collector had granted under Rule 8. Mr Jha’s argument on the first point was that once a notification is issued under the proviso to section 30, no further notification under section 30 is required. The Court found no merit in this contention. It explained that the provisions dealing with private protected forests are contained in Chapter II of the Bihar Private Forests Act, 1947, and that the legislative scheme requires a series of steps before any rights may be extinguished. First, the State Government, having determined that it is in the public interest to apply the chapter’s provisions to a private forest, may propose to constitute the forest as a protected forest by issuing a notification under section 14 and inviting objections from all landlords whose interests are likely to be affected. The hearing of such objections is governed by section 15. If no objection is filed, or if an objection is finally resolved, the Government may then issue a second notification declaring its decision to constitute the area as a private protected forest and may appoint an officer to investigate any rights other than landlord’s rights that may exist over the land. Section 16 then requires the Forest Settlement Officer, upon issuing the notification under subsection 3 of section 15, to publish a proclamation fixing a period of not less than three months for any person to claim rights other than landlord’s rights. Section 17 empowers the Forest Settlement Officer to inquire into all claims filed in response to the notification and also into any rights mentioned in subsection 3 of section 15 that have not been claimed under section 16. Section 22 of the same chapter sets out the procedure for dealing with claims made by forest contractors and grantees.

Section 27 of the Chapter confers a right of appeal on any person who has filed a claim under section 16 or section 22 against an order issued by the Forest Settlement Officer under sections 22, 23, 24 or 26. Section 30 then prescribes the ultimate step that the Government may take to create a private protected forest. The core part of section 30 states: “Where the following events have occurred, namely, (a) the period fixed under section 16 for preferring 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 claim has been made, the period limited by section 27 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer, the State Government shall publish a notification in the Official Gazette specifying, definitely according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest, from the date fixed by the notification and from the date so fixed such forest shall be deemed to be a private protected forest.” A proviso follows this main provision and reads: “Provided that, if in the case of any forest in respect of which a notification under section 14 has issued, the State Government consider that the inquiries, procedure and appeals referred to in this Chapter will occupy such length of time as to cause undue delay in the forest being declared a private protected forest, such delay, in the opinion of the State Government being prejudicial to the public interest, the State Government may, pending the completion of the said inquiries, procedure and appeals, declare by a notification containing the particulars specified in this section, such forest to be a private forest.” The judgment makes it clear that the notification issued under the proviso does not constitute the final creation of a private protected forest; it is only a temporary measure that may be taken while the statutory inquiries, procedural steps, and appeal processes are still pending. Those inquiries, procedures and appeals are not halted by the provisional declaration; they must continue and be fully concluded before the Government can issue the definitive notification contemplated in the main part of section 30. Accordingly, even when the State Government elects to use the power granted by the proviso, the effect of that provisional notification persists only so long as the conditions set out in section 16 remain unsatisfied – that is, while the period for preferring claims has not yet expired, while claims under sections 16 and 22 have not been fully disposed of, and while the time limits for appealing those orders under section 27 have not yet run out, and any appeals that have been filed remain unresolved.

The Court observed that the conditions listed in the statute required that (i) the period fixed under section 16 for preferring claims had not expired; (ii) claims under sections 16 and 22 had not been disposed of; (iii) the period limited by section 27 for appealing from the orders passed in respect of those claims had not elapsed; and (iv) all appeals preferred against such orders had been disposed of. The Court then turned to section 19 of the same Chapter, which provided that “rights (other than landlord’s rights) in respect of which no claim has been preferred under s. 16 and of the existence of which no knowledge has been acquired by enquiry under s. 17, shall be extinguished, unless before the notification under s. 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under s. 16.” The appellant argued that the words “notification under s. 30 is published” also covered a notification made under the proviso to that section, and therefore claimed that once such a proviso notification was issued, all rights other than landlord’s rights, for which no claim had been preferring and no enquiry under s. 17 had uncovered, would be extinguished. The Court found this argument wholly unacceptable. It noted that the legislative scheme required claims to be made under s. 16, followed by enquiry by the Forest Settlement Officer under s. 17, and thereafter the right of appeal from the officer’s decision. Only after the completion of all these steps could the final notification constituting the private forest as a private protected forest be issued. Consequently, the legislature intended that rights “other than landlord’s rights,” which had not been claimed under s. 16 or disclosed by enquiry under s. 17, would be extinguished only after that final notification. The Court further pointed out that the statute allowed three months from the date of proclamation under s. 16 for filing claims, after which the enquiry under s. 17 could commence and required additional time to complete. By contrast, a notification under the proviso of s. 30 could be issued at any time after the notification under s. 14 had been made. Therefore, it was meaningless to speak of rights for which no claim had been preferred under s. 16 and of which no knowledge had been acquired by enquiry under s. 17 before the enquiry period had expired. Moreover, extinction of rights under s. 19 would not occur if the claimant satisfied the Forest Settlement Officer that he had sufficient cause for not preferring a claim within the period fixed under s. 16, a satisfaction that could not be sought before that period had ended. The Court concluded that extinguishment of such rights could take place only after the final notification under s. 30 had been published.

Section 16 had already expired, and the record makes clear that a right can be extinguished under section 19 only after the final notification prescribed by section 30 has been issued. The Court then turned to the apparent inconsistency between the authority granted to officers of the Forest Department under Rules 1 to 4 of the Protected Forest Rules and the authority vested in the Collector under Rule 8 of the same Rules. Rule 1 provides that a person who is a bona‑fide resident of Khasmahal land may cut, convert and remove certain trees for his own domestic use, but the Forest Officer retains the discretion to withdraw that privilege. The rule also permits certain other trees, as specifically listed, to be taken by such bona‑fide residents only after obtaining prior permission from the Forest Officer. Rule 2 authorises the Forest Officer, by a written order, to allow, in particular circumstances, villagers from adjoining villages to cut and remove the trees described in Rule 1. Rule 3 empowers the Divisional Forest Officer to issue a licence to any inhabitant of a town or village situated near a forest, enabling that person to take trees, timber or other forest produce either for personal use or for trade, provided the person pays fees at the rates current and sanctioned by the Chief Conservator of Forests. Rule 4, which the State relies upon most heavily, states in explicit terms: “No person shall cut, convert or remove from the said forest or otherwise deal with any trees, timber or other forest produce of the said forest … except as provided in Rules 1, 2 and 3.” Rule 8, which authorises the Collector to give permission, reads: “No land in the said forest shall be cleared or broken for cultivation or any other purpose without the written permission of the Collector.” The tension between Rule 4 and Rule 8 becomes evident because Rule 4 bars any cutting, conversion or removal of trees except under the licences or permissions described in Rules 1, 2 or 3, yet Rule 8 permits the Collector to grant written permission for clearing or breaking up the land for cultivation or any other purpose, an act that inevitably involves cutting and removing trees. On behalf of the State, counsel argued that Rule 8 should not operate while trees are still standing, and that the Collector’s permission could be exercised only after trees have been cut or removed under Rules 1, 2 and 3, leaving merely stumps, at which point the collector may approve clearing of the forest land for cultivation. The Court was not persuaded that, when formulating these Rules, the Government intended to restrict the Collector’s authority to such a narrow scope. It is apparent that while

Rules numbered one through four were enacted under clauses a, b, c and d of section thirty‑two of the India Forest Act, while rule eight was enacted under clause g of the same section. Clause g expressly addresses the specific matter of clearing and breaking up land for cultivation or any other purpose within a protected forest, thereby assigning a distinct regulatory purpose to rule eight. The Court found that a sensible interpretation of the scheme is that rules one to four govern the cutting or removal of trees when, notwithstanding such cutting, the area continues to constitute a forest. Conversely, the cutting of trees that is indispensable for the purpose of clearing the land for cultivation or any other use falls outside the ambit of rules one to four and is regulated solely by rule eight. This interpretation yields a harmonious construction of rule four together with rule eight and, in the view of the Court, reflects the intention of the authority that framed the rules. Accordingly, in the instant case, when the tenant of the land applied for permission to clear the land for agricultural cultivation and such clearing necessarily involved the felling and removal of trees, rules one through four were inapplicable. The appropriate authority in that circumstance was rule eight, under which the Collector exercised his powers and granted the required permission. Although rule eight is expressed in a negative form, it operates as a ‘pregnant negative’, meaning that land within a forest may be cleared for cultivation only with the Collector’s written consent and may not be cleared otherwise. The permission issued by the Collector in the present matter therefore complied with the law, and neither the Forest Officer nor the State Government possessed any legal authority to set it aside. The final contention raised by counsel for the State was that a notification dated twenty‑ninth May nineteen fifty‑three, issued under section thirty of the Indian Forest Act, 1927, prohibited any clearing or breaking up of forest land for cultivation and should therefore override the Collector’s permission. It is important to note that while section thirty empowers the State Government to prohibit such activities, section thirty‑two empowers the same Government to formulate rules regulating the clearing and breaking up of land for cultivation or other purposes. Even assuming no further legislative provision, one could plausibly argue that the prohibition under the notification would prevail over any permission granted pursuant to rules made under section thirty‑two. All such doubts, however, are removed by the provisions of section thirty‑four of the Act, which expressly states that nothing in the Chapter shall be deemed to prohibit…

Section thirty‑four of the India Forest Act, 1927, provides that any act performed with the written permission of the Forest Officer shall not be deemed prohibited. It also states that an act done in accordance with rules made under section thirty‑two is similarly exempt from prohibition. The provision further adds that any portion of a forest closed under section thirty does not fall within the prohibited category. Additionally, rights whose exercise has been suspended under section thirty‑three are excluded from the prohibition. All of the above operate in relation to any right recorded under section twenty‑nine. Consequently, the Court held that the prohibition contained in the 1953 notification concerning clearing of land becomes ineffective. The prohibition is ineffective wherever the clearing is carried out in compliance with Rule eight of the Rules made under section thirty‑two. All of the contentions that had been raised in the appeal were consequently found to be without merit and therefore failed. The Court expressed the opinion that the State Government possesses no legal authority to interfere with the clearing or cultivation of land by the respondent. The interference would be unlawful because the respondent intends to carry out the activity under the written permission granted by the Collector under Rule eight of the Protected Forest Rules, 1953. The Court observed that, due to an oversight, the High Court had ordered the issuance of a writ of certiorari. The petitioner, however, had originally prayed for a writ in the nature of mandamus. The Court held that, in the circumstances of the present case, the appropriate remedy was a writ in the nature of mandamus. Consequently, the Court modified the order of the High Court to the extent that a writ in the nature of mandamus be issued. The writ should direct the appellant‑Government to cancel its order dated June ten, 1954, which had been issued to the Collector. It should also restrain both the Government and the Forest Officer from interfering with the petitioner’s possession of 245.69 acres of land in the village of Singpur, which the petitioner holds as a tenant. The Court dismissed the appeal, ordered costs against the appellant, and entered a final order that the appeal stood dismissed.