Mahendra Lal Jaini vs The State Of Uttar Pradesh And Others

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

Court: Supreme Court of India

Case Number: Petition No. 59 of 1962

Decision Date: 7 November 1962

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.C. Das Gupta, J.C. Shah

In the matter titled Mahendra Lal Jaini versus the State of Uttar Pradesh and others, the Supreme Court of India delivered its judgment on the seventh day of November, 1962. The decision was authored by Justice K. N. Wanchoo, who sat on the bench together with Justice Bhuvneshwar P. Sinha, Justice P. B. Gajendragadkar, Justice K. C. Das Gupta, and Justice J. C. Shah. The case is reported in the 1963 Annual Reports (AIR) at page 1019 and in the Supreme Court Reports supplement (1) at page 912. The petitioner, Mahendra Lal Jaini, sought relief against the respondents, the State of Uttar Pradesh and other parties, challenging the constitutional validity of certain statutory provisions that affected his interest in a parcel of land.

According to the record, a registered lease dated 14 June 1952 conveyed a perpetual lease of specific lands from a landlord, identified only as “M,” to the petitioner. At the time of the lease, the lands were heavily forested, but the lease deed expressly stated that the entire area had been cleared of trees and that possession of the cleared lands had been handed over to the petitioner, who thereby became a hereditary tenant. Shortly thereafter, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951—referred to in the judgment as the Abolition Act—was made applicable from 1 July 1952. In the interim, the Uttar Pradesh Land Tenures (Regulation of Transfers) Act, 1952—referred to as the Transfer Act—was enacted and given retrospective effect from 21 May 1952. The Transfer Act declared that all transfers of land made by intermediaries after that date were void. Consequently, the petitioner was ordered to refrain from any further clearing of the land and from undertaking any act that would contravene the Uttar Pradesh Private Forests Act, 1948. On 23 March 1953, the respondent issued a notification under section 4 of the Indian Forest Act, 1927, declaring its intention to constitute the disputed lands as a “reserve forest.” A subsequent proclamation under section 6 invited objections from claimants, but the petitioner made no objection. In March 1956, the Indian Forest (Uttar Pradesh Amendment) Act, 1956—known as the Forest Amendment Act—was passed, introducing Chapter VA with sections 38A to 38G into the Forest Act, and a fresh notification was issued prohibiting the activities enumerated in section 38B. The petitioner challenged the constitutionality of both the Transfer Act and the Forest Amendment Act, contending that the restrictions imposed on him by these statutes were illegal.

In this case, the petitioner argued that both the Transfer Act and the Forest Amendment Act were illegal, whereas the respondent maintained that the two statutes were valid, that the petitioner had acquired no right under the lease, and consequently that he had no standing to file a writ petition under article 32 of the Constitution. The Court held that, for as long as the lease remained in force, the petitioner possessed a right to maintain the petition. The lease, the Court observed, created a present right rather than a merely prospective entitlement, and the existence of a dispute over the nature of that right did not defeat the petitioner’s ability to invoke the writ jurisdiction. Further, the Court declared the Transfer Act unconstitutional because it deprived the petitioner of his property without providing any compensation, thereby violating article 31. The Transfer Act was a law for the acquisition of property when it was enacted in 1952, and the Constitution (Fourth Amendment) Act of 1955— which provided that a law which did not provide for the transfer of ownership or the right of possession to the State was not a law for compulsory acquisition or requisition of property— could not be applied to the Transfer Act. The constitutionality of a statute, the Court explained, must be assessed according to the Constitution as it existed at the time the statute was passed, subject only to any retrospective constitutional amendment. The Fourth Amendment could not be invoked against the Transfer Act by resort to the doctrine of eclipse, since that doctrine applies to pre‑Constitution legislation and not to statutes enacted after the Constitution came into force. The Court referred to the authorities in State of West Bengal v. Sabodh Gopal Bose, [1934] SCR 587; Saghir Ahmad v. State of U. P., [1955] 1 SCR 707; Karam Singh v. Nihal Khan, AIR (1957) All 549; Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay, [1958] SCR 1122; Behram Khurshed Pesikaka v. State of Bombay, [1955] 1 SCR 613; Keshavan Madhava Menon v. State of Bombay, [1951] SCR 228; Bhikaji Narain Dhakras v. State of Madhya Pradesh, [1955] 2 SCR 589; and Deep Chand v. State of Uttar Pradesh, [1959] Supp. 2 SCR 8. The Court also held that the Forest Amendment Act was not unconstitutional. Chapter VA, introduced by Chapter II in the Indian Forest Act, was ancillary to Chapter XI and not to Chapter V. Chapter VA served as an interim measure to address the situation created by the Abolition Act while steps were being taken to declare certain lands as reserved forests under Chapter II. Originally, Chapter VA was ancillary to Chapter XI and conferred additional powers of control beyond those contained in Chapter II during the period that proceedings under Chapter XI were pending. These interim provisions were intended to protect the forests pending their declaration as reserved forests and were in the public interest. The later amendment of 1960, which added sections 38 H to 38 M, did not alter the position that sections 38 A to 38 G, as originally enacted, were ancillary to Chapter II.

The Court held further that sections 38A to 38G of the Forest Act were applicable to the lands that were the subject of the dispute. These sections were ancillary to Chapter 11, which, inter alia, dealt with forest and waste land belonging to the Government. After the enactment of the Abolition Act, the proprietary rights in the land vested in the Government, and the petitioner, who claimed to have become a bhumidar, could not be regarded as a proprietor but only as a holder of tenure. The judgment arose in the original jurisdiction under Petition No. 59 of 1962, wherein the petitioner invoked Article 32 of the Constitution of India to enforce his fundamental rights under clause (iii) of the Abolition Act, asserting that his bhumidhari rights continued to subsist.

On 5 July 1952 the petitioner and his labourers proceeded to the land with the intention of carrying out agricultural operations. Their activities were halted by the City Magistrate of Dehra Dun, who was accompanied by the Divisional Forest Officer and the Tehsildar of Dehra Dun. The magistrate ordered the petitioner to desist from clearing the land until further orders were issued. The matter was subsequently referred to the Government of Uttar Pradesh, and the petitioner was instructed to refrain from any activity on the land, an instruction that was said to be contrary to the Uttar Pradesh Private Forests Act 1948 (U.P. VI of 1949).

It is relevant to note that, during the interim, the Transfer Act was passed on 23 June 1952 and came into force with retrospective effect from 21 May 1952. By virtue of this Act, all transfers made by intermediaries after 21 May 1952 were declared void. Consequently, the City Magistrate directed the petitioner not to undertake any act that would be contrary to the Transfer Act until the Government’s orders were received or the matter was finally decided by a court of law.

The petitioner contended that the land had ceased to be forest land at the time the registered lease in his favour was executed in June 1952. He subsequently approached the Government for redress, but his representation was rejected in September 1952. In November 1952 the petitioner filed a writ petition in the High Court at Allahabad, challenging both the applicability of the Uttar Pradesh Private Forests Act to the disputed land and the constitutionality of the Transfer Act. The High Court, in an ad interim order dated December 1952, restrained the respondents from interfering with the petitioner’s possession of the land and directed that the status quo be maintained.

In February 1955 the petitioner withdrew the High Court petition for reasons that the record does not elaborate. Following this withdrawal, the petitioner appealed to the Collector of Dehra Dun for permission to resume agricultural operations on the disputed land. He supported his request by alleging that, in any event, he had become a sirdar within the meaning of section 210 of the Abolition Act and therefore was entitled to retain the land. The Collector replied that the matter had again been referred to the Government, and consequently the petitioner was instructed to await further directions.

In the present petition the petitioner again pleaded, in the alternative, that he had become a sirdar of the land in dispute and that, because the State had not taken steps to eject him within two years of the vesting date of 1 July 1952, he was entitled to continue possession of the land as a sirdar. On 23 March 1955 the Government of Uttar Pradesh issued a notification under section 4 of the Indian Forest Act, 1927, declaring that the village of Asarori together with the land in dispute would constitute a “reserved forest” and appointing the Forest Settlement Officer, Dehradun, to invite objections from claimants under Chapter 11 of that Act. Subsequently, on 26 April 1955 a proclamation was issued under section 6 of the Forest Act calling for objections from any claimants. The petitioner, however, made no claim in response to the proclamation, explaining that his matter was still being considered by the Government, as the Collector of Dehradun had intimated to him, and that no order had yet been passed on the issue. Later, on 3 December 1955 the Governor of Uttar Pradesh promulgated an ordinance titled “The Indian Forest (U.P. Amendment) Ordinance, 1955,” which added Chapter V‑A to the Forest Act; a notification made under that ordinance prohibited claimants defined in section 38‑A from committing acts forbidden by section 38‑B. This ordinance was transformed into law in March 1956 as the Indian Forest (U.P. Amendment) Act, 1956 (U.P. Act V of 1956), thereby incorporating Chapter V‑A into the Forest Act and issuing a fresh notification restricting the acts listed in section 38‑B. The petitioner challenged the constitutionality of this Act. He further asserted that the notification dated 17 March 1956 had been cancelled on 19 December 1956, after which he again applied to the Collector for permission to reclaim the land; the Collector replied that the Government’s orders were still pending. The petitioner also alleged that in November 1957 the State of Uttar Pradesh released more than 293 acres of the disputed land in favour of Virendra Goyal, his benamidar, and that after the petitioner protested this release, he was informed that the order had been cancelled on 14 August 1958. Finally, in May 1959 the Uttar Pradesh legislature enacted the Government Grants (U.P. Amendment) Act, No IX of 1959, and the petitioner contended that, by virtue of that Act, all other laws ceased to apply to the land in dispute; however, that Act was later repealed by the Government Grants (U.P. Amendment) Act, No XIII of 1960, with retrospective effect.

The petitioner had approached the Collector of Dehra Dun immediately after the passage of the Uttar Pradesh Government Grants (U.P. Amendment) Act, No. IX of 1959, seeking permission to carry out reclamation operations, but the Collector advised him to refrain from any action until specific orders were issued by the Government or until the dispute was resolved by a court of law. Consequently, the petitioner instituted a writ petition before this Court under Article 32, which was admitted for consideration in February 1960. When the writ petition was scheduled for hearing on 25 October 1961, the Court was apprised that certain notifications had been issued pursuant to sections 38‑B and 38‑C of the Forest Amendment Act. In view of those developments, the petitioner was permitted on 19 March 1962 to withdraw the earlier petition, with liberty to file a fresh writ petition; the present petition was therefore filed in April 1962. The petitioner advanced two principal challenges to the constitutionality of the two statutes, namely the Transfer Act and the Forest Amendment Act. He contended that the Transfer Act was unconstitutional because it removed the lessees’ lease‑hold rights without providing for compensation, thereby violating Article 31(2) of the Constitution as it stood before the Fourth Amendment. Alternatively, he argued that even assuming the validity of the Transfer Act, he had become a sirdar under section 210 of the Abolition Act. Regarding the Forest Amendment Act, the petitioner claimed it was unconstitutional because it imposed unreasonable restrictions on his fundamental right to freedom of trade, occupation, and profession under Article 19(1)(f). In addition to these primary objections, he submitted that the notification made under section 4 of the Forest Act dated 23 March 1955 had been cancelled insofar as the disputed land was concerned and therefore should not affect his case. He further urged that, because no notification under section 20 of the Forest Act had ever been issued, the purpose of the section 4 notification must be deemed abandoned. Concerning the notification under section 38‑B of the Forest Amendment Act, the petitioner admitted that he had not filed objections as required by that provision; however, he asserted that he was unable to do so because the deadline for objections expired after the enactment of Uttar Pradesh Act IX of 1959, which, in his view, rendered any objection unnecessary. Accordingly, the petitioner prayed that the Transfer Act and the Forest Amendment Act be declared ultra vires and that all actions taken under them be held void as against him. He further prayed to be declared a bhumidhar, or alternatively a sirdar, under the provisions of the Abolition Act, and sought an injunction restraining the respondents from interfering with his possession of the land. He also requested, in the event that he had been dispossessed, the issuance of a writ of mandamus or any other appropriate order directing the respondents to vacate the disputed land and to allow him to enjoy whatever rights he might be found entitled to.

If it is found that the petitioner has been dispossessed, the Court should issue a writ in the nature of mandamus or any other appropriate direction against the respondents, ordering them to vacate possession of the disputed land and to allow the petitioner to enjoy any rights to which he may be lawfully entitled. The petition was opposed on behalf of the State of Uttar Pradesh, which maintained that the Transfer Act is valid and constitutional. The State argued that if this contention is accepted, no other relief can survive, because the petitioner would then have no rights under the registered lease dated June 1952. The State further insisted that the petitioner never actually obtained possession of the land in dispute and that the land has never been denuded of trees; it remains forest land with a large number of trees still standing. Accordingly, the State rejected the petitioner’s claim that he has become a bhumidhar under the Abolition Act and also repelled his assertion that he has become a sirdar. The State’s position is that the petitioner acquired no rights under the June 1952 lease and therefore lacks standing to maintain the present petition, irrespective of whether the Transfer Act is upheld as valid and constitutional. In addition, the State contended that the Forest Amendment Act of 1956 is a valid and constitutional statute and that the various notifications issued under both the Forest Act and the Forest Amendment Act are perfectly valid. The State further observed that the notification under section 4 of the Forest Act has never been withdrawn, even though no notification under section 20 has been issued, citing the pendency of the petitioner’s writ petitions in the High Court and in this Court as the reason for this situation. Consequently, three principal questions arise for decision in the present petition: (1) Whether the petitioner has any right whatsoever to any property by virtue of the registered lease deed of June 1952, irrespective of the validity and constitutionality of the Transfer Act, and therefore whether he has locus standi to maintain the petition; (2) Whether the Transfer Act, 1952, is valid and constitutional; and (3) Whether the Forest Amendment Act of 1956 is valid and constitutional. There are also subsidiary issues concerning the various notifications that will be considered while addressing the three principal points.

In the factual backdrop, if the legislation that later altered the status of the land had not been enacted, the registered lease dated June 1952 would have vested the petitioner with a property right, entitling him at a minimum to be a permanent lessee of the disputed land and to enjoy the rights that the lease itself confers. Accordingly, it is difficult to accept a contention that, despite the existence of this lease, the petitioner lacks any standing to maintain the present petition. The lease could be deemed without force or effect only if the Transfer Act of 1952 were held to be valid—a question that will be examined subsequently—but once it is conceded that the lease is not a fictitious document, it inevitably bestows rights in the land covered by the lease upon the petitioner. Hence, it could not be said that the petitioner has no right to maintain the petition irrespective of whether the Transfer Act is valid and constitutional.

The precise nature of the rights that flow from the registered lease is a separate issue. The petitioner alleges that, by virtue of the lease, he has become a bhumidhar under the Abolition Act, and alternatively claims that he has become a sirdar because he is in possession of the land. The State, on the other hand, rejects both contentions, denying that the petitioner has acquired the status of bhumidhar under the Abolition Act and also denying that he is in possession and therefore a sirdar under the same Act. The petitioner prays that his claim to the status of bhumidhar or sirdar be determined within the present petition.

It was observed, however, that deciding whether the petitioner is a bhumidhar or a sirdar on the basis of the lease or his alleged possession would not be fair to either party, given the provisions of the Abolition Act. The petitioner’s status under the Act depends upon several factual questions, and it would be unjust to resolve those questions solely on the limited documentary evidence presently on record. The matter of possession, in particular, is seriously contested, and there is also a material dispute as to whether any trees presently stand on the land or whether trees were removed before the lease was executed, as asserted in the lease. All these issues are factual in nature and require oral evidence for proper determination.

The Abolition Act, Section 229‑B, permits a person asserting the status of bhumidhar or sirdar to institute a suit to establish that right. Considering the serious factual disputes concerning the nature of the land and the petitioner’s possession, it was concluded that the petitioner should be allowed to pursue his claim to the status of bhumidhar or sirdar by filing a suit, or alternatively by raising objections under the relevant provisions of the Forest Act.

It was observed that the petitioner could also attempt to establish his alleged right by filing objections to the proclamation issued under section 6 of the Forest Act, a matter that the Court indicated would be examined in detail later. Despite this, the Court stated that it was not prepared to determine whether the petitioner qualified as a bhumidhar or a sirdar. Nevertheless, given the existence of a deed of lease favoring the petitioner, the Court held that it could not be said that the petitioner lacked any right to maintain the present petition, irrespective of the validity of the Transfer Act.

The Court explained that if the Transfer Act were held to be valid, the lease in favour of the petitioner would confer no enforceable right, and consequently the petition would fail. Conversely, if the Transfer Act were found to be an invalid piece of legislation, the lease would remain operative, and, in the Court’s view, the petitioner would be competent to maintain the present petition. The Court stressed, however, that it was not deciding in this petition what specific right the lease conferred, nor whether the petitioner was a bhumidhar or a sirdar by virtue of the lease and his alleged possession of the demised land. Accordingly, the Court expressed the opinion that, as long as the lease stood, the petitioner possessed a right to maintain the petition, while leaving the precise nature of that right to be determined in a proper forum.

The petitioners’ counsel also argued that the lease did not grant any present tenancy right because clause (2) of the lease purported to create hereditary tenancy rights under the Uttar Pradesh Tenancy Act, yet the land at the time of the lease was reportedly covered by trees and not fit for cultivation. This contention raised a factual issue concerning the character of the land at the lease’s execution. The Court noted that it might be concluded that no tenancy rights were created in favour of the petitioner if the disputed land did not fall within the definition of land under the Uttar Pradesh Tenancy Act. However, the Court reiterated that such a question required determination in the appropriate forum, as previously indicated.

Nonetheless, the Court observed that there could be no doubt that the lease created some right in the present, regardless of its exact nature, and that the situation was not one in which only a future right was conferred. In the circumstances, the Court held that it could not be said that the lease created no present right at all; consequently, the petitioner could not be said to lack any entitlement to maintain the present petition. The Court therefore concluded that the petitioner was not entitled to proceed with the petition on the basis that no present right existed.

Finally, it was pointed out that the lease was granted to two persons, namely the petitioner and Virendra Goyal, while the present petition had been filed solely by the petitioner and Virendra Goyal had not been made a party to the proceedings. This fact was noted without further analysis in the Court’s discussion.

The Court observed that the petition was challenged on the ground that the petitioner had failed to include the other lessee as a respondent. It was contended that, by analogy with ordinary suits for possession, all co‑owners must be joined as parties, and that where some co‑owners refuse to sue, the remaining parties should be made defendants. The Court held that this rule, which governs suits for recovery of possession, does not extend to a petition filed under Article 32 of the Constitution, because such a petition is not a suit for possession. Moreover, the petitioner claimed that the other lessee, Virendra Goyal, was only a benamidar. The Court noted that the correctness of that claim was presently before a civil court in Dehra Dun, and therefore no opinion was expressed on that question. Even if the claim were correct, the Court said, it would not be necessary to make Mr Goyal a respondent. The Court further explained that the petitioner’s right to maintain the petition does not depend on whether he has joined another person who may have an identical right. The absence of such a co‑party does not, in the Court’s view, justify dismissing the petition or denying any relief for enforcement of the petitioner’s fundamental right. Consequently, the Court concluded that the petitioner is entitled to maintain the petition, while expressly refraining from commenting on the exact nature of the right asserted. Regarding the second issue, the Court described the Transfer Act as a concise statute consisting of three sections. The preamble states that, following the commencement of the Abolition Act, it was deemed necessary to avoid transitional difficulties by regulating certain land transfers made by intermediaries, and consequently the Act was enacted. Section 1 provides the short title, the territorial extent, and specifies that the Act came into force on 21 May 1952, although it was published on 23 June 1952. Section 2 contains definitions. Section 3, the operative provision, declares that, notwithstanding any contrary law or contract, any lease of land by an intermediary granted or registered on or after 21 May 1952 is null and void from the date of its execution. It further provides that, for the purposes of Section 180 of the Uttar Pradesh Tenancy Act and Section 209 of the Abolition Act, the lessee shall be deemed to be in possession of the land in a manner not authorized by the law in force at that time. The provision also states that any transaction between an intermediary and a tenant that confers on the tenant the right to sell his holding, whether made, entered into or registered on or after 21 May 1952, is likewise declared null and void.

The Court observed that the Transfer Act, by its terms, renders two categories of transfers that are made on or after May 21, 1952, void. Consequently, the person who receives the transfer is denied the right that he would normally acquire under a valid transfer. The petitioner argued that this provision of the Transfer Act clashes with article 31 of the Constitution as it existed when the Act was enacted, because the Act deprives a transferee of his property without providing compensation, a requirement imposed by article 31(2). To support this contention, the petitioner relied upon the decision in State of West Bengal v. Subodh Gopal Bose (1). In that case, the majority of the Court held that article 31 safeguards the right to property by delineating the limits on the State’s power to dispossess private property. The Court further held that clauses (1) and (2) of article 31 are not mutually exclusive; rather, they must be read together as addressing the same subject, namely the protection of the right to property through limitations on State power, with the deprivation described in clause (1) amounting to the acquisition or taking possession of property referred to in clause (2). The decision in Subodh Gopal’s case (1) was subsequently cited in Saghir Ahmad v. The State of U.P. (2), where it was reiterated that, in light of the majority ruling, it is settled law that “clauses (1) and (2) of article 31 are not mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the State’s powers, the deprivation contemplated in clause (1) being no other than acquisition or taking possession of the property referred to in clause (2).”

Shortly after the Subodh Gopal decision, article 31(2) was amended by the Constitution (Fourth Amendment) Act, 1955, which introduced clause 2A. This amendment was made prospective and stipulated that where a law does not provide for the transfer of ownership or the right to possession of any property to the State or to a corporation owned or controlled by the State, such a law shall not be deemed to effect compulsory acquisition or requisition of property, even though it may deprive a person of his property. The amendment therefore adopted the minority view expressed by Justice Das in Subodh Gopal’s case (1), clarifying that mere deprivation of property, without an actual transfer of ownership or possession to the State, would not trigger the compensation requirement of article 31(2). The petitioner contended that, because the amendment to article 31 was not retrospective, it should not affect the assessment of the constitutionality of the Transfer Act, which must be judged according to the Constitution as it stood in 1952. The petitioner further argued that, under the 1952 constitutional framework, the Transfer Act’s failure to provide compensation rendered it unconstitutional, a position the Court was asked to consider.

In this matter, the petitioners argued that because the amendment to article thirty‑one was not given retrospective effect, it could not be used to assess the constitutionality of the Transfer Act; the validity of that statute had to be examined according to the constitutional provisions that were in force in the year 1952. The respondents did not seriously contest the proposition that, if the Constitution as it existed in 1952 were applied, the question of the Transfer Act’s constitutionality would be fully covered by the earlier decision in Subodh Gopal’s case. That precedent held that the Transfer Act, which failed to provide for compensation as required by article thirty‑one clause two as it stood in 1952, was unconstitutional. Consequently, the respondents acknowledged that, on the basis of the 1952 Constitution, the Transfer Act would be invalid. Nevertheless, the Court found itself unable to accept the judgment of the Allahabad High Court in Karam Singh v. Nihal Khan, which had upheld the validity of the Transfer Act despite those earlier rulings. The Court therefore rejected the High Court’s view and indicated that the Transfer Act could not be sustained as constitutional when assessed against the 1952 constitutional framework.

The respondents advanced a two‑fold argument to sustain the Transfer Act. First, they contended that the statute’s constitutionality should be judged according to the Constitution that existed on the date the present petition was filed, rather than the Constitution that prevailed when the Transfer Act was enacted. They relied on the Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay decision, noting that paragraph 1131 of that judgment observed that the Fourth Amendment, which introduced clause two‑A in article thirty‑one, was not retrospective and that the parties’ rights must be determined according to the law in force at the time of the writ petition. The respondents interpreted this observation as establishing a general rule that the constitutionality of any legislation must always be measured by the Constitution as it stood on the date of the petition. The Court disagreed with that reading, explaining that the Bombay Dyeing case never addressed whether the relevant constitutional test should be the Constitution at the time the legislation was passed or the Constitution at the time the petition was filed. In that case, the writ petition had been filed long before the Fourth Amendment was enacted, making the two dates effectively identical for that dispute. As a result, the Court concluded that the observation could not be extended to create a rule that the constitutionality of an Act depends on the Constitution as of the petition date, a position that the respondents’ counsel had sought to impose.

The Court observed that the amendment of Article 31 made by the Constitution (Fourth Amendment) Act was not intended to operate retrospectively. It explained that if the validity of a statute were to be measured according to the constitutional position on the date the writ petition was filed, an inconsistent result would follow. In such an approach the Fourth Amendment could sometimes be treated as having retrospective effect and at other times not, depending solely on whether the writ petition was presented before or after the amendment was enacted. Consequently, a provision that was unconstitutional when the petition was filed before the amendment could become constitutional if the same petition were filed after the amendment, and vice‑versa. The Court held that this fluctuation was untenable and could not be what the earlier Bombay Dyeing case intended. It affirmed the elementary principle that the constitutionality of any law must be examined according to the Constitution as it stood on the date the law was enacted, unless the Constitution itself contains a specific retrospective amendment. Accordingly, the suggestion that the Transfer Act should be assessed in light of the Constitution as it existed on the date of the present writ petition was rejected as having no merit.

The Court further noted that, having accepted the test of judging constitutionality on the basis of the Constitution prevailing at the time the Transfer Act was passed, it was not seriously contested that the Transfer Act would be unconstitutional, a conclusion supported by the Court’s earlier decision in Subodh Gopal’s case (1954 S.C.R. 587). The respondents, however, advanced a second contention: even if the Transfer Act were initially unconstitutional, the enactment of the Constitution (Fourth Amendment) Act, which amended Article 31, removed the inconsistency and consequently revived the Transfer Act, rendering it effective from the date the Fourth Amendment came into force. To address this argument, the Court turned to the doctrine of eclipse, the principle on which the contention relied. The doctrine was first examined in Behram Khurshed Pesikaka v. State of Bombay, where Justice Venkatarama Aiyar distinguished between invalidity arising from a lack of legislative competence and invalidity resulting from a constitutional limitation imposed by the Fundamental Rights chapter. Justice Aiyar, relying on the earlier decision of Keshavan Madhava Menon v. State of Bombay, suggested that the term “void” in Article 13(1) should be interpreted in the sense used by American jurists as “relatively void.” The Court observed, however, that the statutes considered in Keshavan Madhava Menon’s case and in Behram Khurshed Pesikaka’s case were both pre‑Constitution enactments, and that the operation of Article 13 in those contexts required careful analysis.

In that earlier stage the Court observed that the provisions of article 13(1) had to be examined for their constitutionality. The decision in Be ram Khurshed Pesikaka’s case was subsequently referred to a larger Bench because of the constitutional questions it raised. In the majority judgment of the Constitution Bench, delivered by Chief Justice Mahajan, C. J., the Court held that there was no room to introduce expressions such as “relatively void”, a term coined by American jurists, into a Constitution that was not drafted in similar language. The majority further stated that it could not endorse the opinion expressed by Justice Venkatarama Aiyar that a declaration of unconstitutionality resulting from lack of legislative competence was of a different character from a declaration based on the abridgement of fundamental rights. Accordingly, the Court rejected the view that the provisions of Part III of the Constitution merely functioned as a check on legislative power. It was also observed that when a State’s law‑making power is limited by a written fundamental law, any statute enacted in conflict with that fundamental law exceeded the legislature’s authority and therefore was a nullity. The Court explained that both kinds of unconstitutionality – those due to absence of legislative power and those due to infringement of fundamental rights – attacked the same source of power and therefore could not be meaningfully distinguished; they represented two aspects of a lack of legislative competence. The Court cited authorities (1) [1951] S.C.R. 228 and (2) [1955] 1 S.C.R. 613 to support this view. Finally, the Court added that a simple reference to article 13(2) together with articles 245 and 246 was enough to show that neither Parliament nor a State legislature possessed the competence to pass a law that conflicted with Part III after the Constitution had come into force. Subsequently, the decision in Saghir Ahmad’s case was examined. In that matter the statute under review had been enacted after the Constitution became operative, and the Constitution Bench delivered a unanimous judgment. The principal issue was the effect of the Constitution (First Amendment) Act, which had been passed shortly after the challenged law. The Court observed that “amendment of the Constitution which came later cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed”, and it accepted Professor Cooley’s observation that “a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re‑enacted”. Applying this principle, the Court concluded that the impugned legislation, which infringed the appellants’ fundamental right under article 19(1)(g) and was not saved by clause 6 of that article as it stood at the time of enactment, must be declared void under article 13(2) of the Constitution.

The Court held that the statute under review also contravened Article 31(2) of the Constitution, and therefore it was invalid. Consequently, the doctrine of eclipse was not invoked with respect to this post‑Constitution legislation, because the law was unconstitutional for three reasons: it violated Article 17(1)(g), it was not saved by Article 19(6), and it infringed Article 31(2). The earlier decision in Saghir Ahmad’s case (1) destroyed the respondents’ contention that a post‑Constitution enactment, void under Articles 19(1) and 31(2) and thus void from its inception, could be revived by applying the doctrine of eclipse, as expressed in the citation [1955] 1 S.C.R. 707. The respondents nevertheless turned to another decision in the same series, namely Bhikaji Narain Dhakaras v. State of Madhya Pradesh (1). That precedent dealt with a pre‑Constitution law, not a post‑Constitution law. In Bhikaji Narain’s case an argument was advanced that the reasoning in Saghir Ahmad’s case (2) should apply, but the Court rejected that argument on the ground that Saghir Ahmad’s case concerned a post‑Constitution enactment whereas Bhikaji Narain concerned a law that existed before the Constitution. In that context the Court examined Article 13(1) and observed that the true effect of that article is to render an enactment that conflicts with a fundamental right inoperative to the extent of the conflict. The Court further noted that such a law is “overshadowed by the fundamental right and remains dormant but is not dead.” When a constitutional amendment removed the inconsistency, the Court pointed out, the provisions of the challenged Act were no longer at odds with the Constitution and the Act resumed operation from the date of the amendment. The Court cited page 599, stating that “the true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity.” The Court also observed that American authorities discuss only post‑Constitution statutes that were inconsistent with the Constitution, describing such statutes as “still‑born” and noting that those authorities cannot be fully applied to pre‑Constitution statutes that were valid before the Constitution. The respondents, relying on citations (1) [1955] 2 S.C.R. 589 and (2) [1955] 1 S.C.R. 707, quoted the passage at page 599 which says, “But apart from this distinction between pre‑Constitution and post‑Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision …”

Article 13 declares that any law which is inconsistent with the provisions of Part III shall be void “to the extent of such inconsistency”. The Court observed that such statutes were not dead for every purpose; they continued to exist for the enforcement of rights and liabilities that arose before the Constitution and they remained operative after the Constitution insofar as they applied to non‑citizens. Only with respect to citizens did those statutes become dormant or moribund. Although the learned judges said they need not base their decision on the distinction between pre‑Constitution and post‑Constitution legislation, the later part of their observation—stating that the laws were not dead for all purposes—indicates that they were referring to pre‑Constitution statutes. Otherwise they could not have spoken of the statutes’ existence for pre‑Constitution rights and their continued operation against non‑citizens. Consequently, the Court held that the decision in Bhikaji Narain’s case (1) must be confined to pre‑Constitution laws to which the doctrine of eclipse applies. This view is reinforced by the fact that the judges in Bhikaji Narain’s case (1) themselves distinguished the earlier decision in Saghir Ahmad’s case (2), a case in which Das Acting Chief Justice, who delivered the judgment in Bhikaji Narain’s case (1), had also participated.

The Court then considered the last authority on the issue, Deep Chand v. State of Uttar Pradesh (3). In that decision, the majority, after referring to the earlier authorities (1) [1959] 2 S.C.R. 589, (2) [1955] 1 S.C.R. 707, (3) [1959] Supp. 2 S.C.R. 8, pointed out the distinction between Articles 13(1) and 13(2) and held that the limitations imposed by Chapter III on legislative power were co‑equal with the legislature’s competence to enact laws. The Court quoted at page 20: “Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the relevant Lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution, including Article 13, i.e., the power is made subject to the limitations imposed by Part III of the Constitution.” The Court explained that this general power is therefore limited, and the Legislature has no authority to make any law that contravenes the injunction contained in Article 13. Article 13(1) deals with laws that were in force in the territory of India before the Constitution commenced; such laws, to the extent they are inconsistent with Part III, are void. This clause therefore recognises the continued validity of pre‑Constitution laws, declaring only that they become void to the extent of their inconsistency with Part III. By contrast, clause (2) imposes a prohibition on the State from making laws that take away or abridge the rights guaranteed by Part III, declaring that any law made in contravention of this clause is void to the extent of the contravention.

In this case, the Court observed that any law made in contravention of clause (2) of Article 13 shall, to the extent of the contravention, be void. The Court explained that a clear distinction exists between the two clauses of Article 13. Under clause (1), a law that existed before the Constitution continues to operate except to the degree that it is inconsistent with the provisions of Part III. By contrast, no law made after the commencement of the Constitution may be enacted in a manner that violates the provisions of Part III; any such post‑Constitution law is a nullity from the moment of its enactment. The Court noted that the minority of judges in the earlier reference had declined to decide the question and therefore had not expressed a final view. After reviewing the authorities, the Court concluded that the doctrine of eclipse applies only to pre‑Constitution laws governed by Article 13(1) and does not apply to post‑Constitution laws governed by Article 13(2). The respondents advanced the argument that the language of Article 13(1) and Article 13(2) should lead to the same result with respect to the doctrine of eclipse. They contended that because both clauses use the expression “to the extent of…”, the phrase must be understood to mean “so long as the inconsistency or contravention continues”. The Court rejected that interpretation. It held that the words “to the extent of the inconsistency” and “to the extent of the contravention” do not convey any temporal limitation. Rather, the Constitution makers employed those words to indicate that only the portion of a law that is inconsistent with or that contravenes Part III is to be declared void, while the remaining parts of the law, which are not inconsistent, may continue to operate. The Court further observed that the apparent purpose of using the phrase “to the extent of” was to preserve those parts of a statute that are not in conflict with fundamental rights, thereby inviting a consideration of severability. The expression does not refer to the duration for which a law remains void. When the framers intended to address the element of time, they used explicit terminology, for example in Article 251, which deals with the relationship between laws made by Parliament under Articles 249 and 250 and laws made by the legislatures of the States.

Article 251 states that the law of Parliament, whether enacted before or after the law of the State legislature, shall prevail to the extent of the repugnancy but only while the law made by Parliament continues to have effect. Consequently, the Court concluded that the Constitution makers did not intend the provision “to the extent of” to introduce any temporal aspect. A plain construction of the clauses therefore requires the exclusion of any time element. The Court could not accept the contention that the phrase imports a notion of time. In the Court’s view, the phrase merely indicates that a law may be void either in whole or in part, and that only those portions which are inconsistent with Part III or which contravene Part III are void. The Court also reiterated the difference in language and scope between Article 13(1) and Article 13(2). Article 13(1) expressly acknowledges the existence of pre‑existing laws in force at the moment the Constitution commenced, and then provides that such laws shall be void only to the extent of their inconsistency with Part III.

In this case, the Court observed that Article 13 contains the expression that a law shall be void to the extent of the repugnancy but only while the law made by Parliament continues to have effect, it shall be inoperative. The Court then explained that if the framers of the Constitution had intended that the provisions of Articles 13(1) and 13(2) should operate only for the period during which the inconsistency or the contravention existed, they would have expressed that intention expressly. A plain reading of the clause therefore does not admit any temporal element; the words “to the extent of” cannot be read as implying a limitation of time. The Court held that the phrase merely indicates that the voidness of a statute may be total or partial, and that only those portions of the statute which are inconsistent with or have contravened Part III become void, and no further effect follows.

The Court then turned to the distinction between the language and the scope of Articles 13(1) and 13(2). Article 13(1) expressly acknowledges the existence of pre‑existing statutes that were in force in the territory of India immediately before the commencement of the Constitution. It then provides that, to the extent such pre‑Constitution statutes are inconsistent with any provision of Part III, they shall be void to the extent of that inconsistency. Because the opening words of Article 13(1) recognise the validity of those statutes at the moment of the Constitution’s commencement, the removal of the inconsistency revives the remainder of the law. This principle corresponds to the doctrine of eclipse, which the Court noted had been applied in the decision of Bhikaji Narain (1) [1955] 2 S.C.R. 589.

Article 13(2), by contrast, begins with a command that the State shall not make any law that takes away or abridges the rights guaranteed by Part III. Consequently there is a constitutional prohibition on the State from enacting legislation that impairs fundamental rights. The legislative authority of Parliament and the State Legislatures under Article 245 is subject to all other constitutional provisions, including Article 13(2), which expressly forbids the State from making any law that infringes or diminishes the rights in Part III. The Court therefore concluded that the prohibition in Article 13(2) renders the State as incapable of making a law that curtails fundamental rights as it would be if the law violated the distribution of powers set out in the Seventh Schedule between Parliament and a State Legislature.

Further, Article 13(2) provides that any law which contravenes the prohibition shall be void to the extent of the contravention. The Court explained that the act of contravention occurs only at the moment the law is made, because the prohibition relates to the making of a law that would diminish fundamental rights. Hence, there is no continuing breach of Article 13(2); the contravention is a single occurrence at the time of enactment. Accordingly, when the question arises concerning a law made after the Constitution came into force, the constitutional bar in Article 13(2) operates to prevent the State from taking away or abriding fundamental rights.

There is a further provision stating that if a prohibition is infringed, the law in question shall be declared void to the extent of the infringement. Applying this provision, it follows that a law made in violation of the prohibition contained in Article 13(2) is not a valid law that was later invalidated; rather, it is a law that is “still‑born,” meaning it is ineffective from the moment of its creation, either wholly or partially depending on how far it contravenes the provision. Such a law is dead from its inception and therefore cannot be revived through the doctrine of eclipse. A plain reading of the language of Article 13(1) and Article 13(2) reveals a clear distinction between the two clauses. Article 13(1) declares that pre‑Constitution statutes that are inconsistent with fundamental rights are void. Article 13(2) has two components: the first component imposes a restriction on the State’s power to enact statutes that violate fundamental rights, and the second component, which is merely consequential, specifies the effect of a breach of that restriction. The doctrine of eclipse is capable of reviving the operation of a law that was operative until the Constitution came into force but has since become inoperative, either wholly or partially; however, it does not empower the State to create a statute that breaches Article 13(2). Consequently, for statutes covered by Article 13(1), which relate to existing pre‑Constitution laws, the doctrine of eclipse applies as articulated in Bhikuji Narain’s case (1). In contrast, for statutes enacted after the Constitution became operative, Article 13(2) governs, and its effect has been indicated by this Court as early as Saghir Ahmad’s case (2).

The respondents contend that this interpretation would assign a different meaning to the word “void” in Article 13(1) compared with Article 13(2). The Court does not accept that view. The meaning of “void” in Article 13(1) was examined in Keshava Madhava Menon’s case and again in Behram Khurshed Pesikaka’s case. In the later decision, Chief Justice Mahajan observed that the majority in Keshava Madhava Menon’s case (3) explicitly held that the term “void” in Article 13(1) does not signify that the statute has been repealed and erased from the statute book, nor does it mean that the statute was void ab initio. In our opinion, this follows directly from the language of Article 13(1), which presupposes that existing statutes remain valid except to the extent that they are inconsistent with fundamental rights. Moreover, the cited authorities (1) [1955] 1 S.C.R. 589, (2) [1955] 1 S.C.R. 707, (3) [1951] S.C.R. 288, and (4) [1953] 1 S.C.R. 613 confirm that there can be no question of an existing law being void ab initio solely because of its inconsistency with Article 13(1). The word “void” therefore indicates that such statutes become ineffectual and nugatory, but they are not considered null from their inception.

In the present discussion, the Court observed that the statutes in question had been enacted by duly empowered legislatures at the time of their passage. Consequently, it was held that the operation of Article 13(1) with respect to existing statutes that were found to be unconstitutional was limited to rendering those statutes null and ineffective, thereby making them “ineffectual and nugatory and devoid of any legal force or binding effect.” The Court further explained that, for practical purposes, the word “void” in Article 13(1) conveyed the same meaning as in Article 13(2); that is, a law described as void was one that was ineffective, nugatory, and lacked any legal force or binding effect. However, the Court stressed that pre‑Constitution laws could not become void ab initio merely by reason of Article 13(1); their voidness did not arise from the moment of their enactment but only after the Constitution came into force, at which point they ceased to operate for any purpose. By contrast, statutes enacted after the Constitution’s commencement were void from the very beginning and could not continue to exist for any purpose. This distinction, the Court noted, stemmed from the classification of the statutes as pre‑Constitution or post‑Constitution, even though the term “void” carried the same meaning in both clauses of Article 13. The Court then turned to the issue of constitutional amendment and its effect on the two categories of laws. It observed that, where a pre‑Constitution law is rendered inconsistent with the Constitution, an amendment that removes the inconsistency would revive the law under the doctrine of eclipse articulated in Bhikaji Narain’s case, because such laws were not “still‑born” and persisted in a eclipsed state, ready to govern pre‑existing matters once the shadow of inconsistency was lifted. In contrast, a post‑Constitution law that is inconsistent with the Constitution is “still‑born” to the extent of the inconsistency; therefore, no amendment can revive it, since it never possessed a valid existence. The Court concluded that the identical meaning of “void” in both Article 13(1) and Article 13(2) does not justify applying the doctrine of eclipse to one provision and not to the other. The differing treatment arises from the intrinsic difference between the two clauses: Article 13(1) deals with pre‑Constitution statutes that may be revived upon amendment, whereas Article 13(2) concerns post‑Constitution statutes that are void from inception and cannot be resurrected.

In this matter the Court observed that the two clauses of Article 13, although forming part of the same provision, differ fundamentally in both wording and substantive reach. The first clause deals with laws that existed before the Constitution came into force; such pre‑Constitution statutes are recognised by the Constitution as operative, but they are declared void to the extent that they conflict with the fundamental rights guaranteed by the Constitution. The Court explained that, absent this declaration of inconsistency, those pre‑Constitution laws would continue to operate. Consequently, when the Constitution is amended, the effect of the amendment is merely to remove the “shadow” cast by the declaration of voidness, thereby reviving the underlying law. By contrast, the second clause of Article 13 applies to statutes that were enacted after the Constitution was adopted. The Constitution does not acknowledge the existence of those post‑Constitution enactments when they are made in defiance of the constitutional prohibition against such legislation. The Court noted that this act of defiance itself renders the law void, citing the principle established in [1955] 2 S.C.R. 589. Because the law never attained a valid existence, no constitutional amendment can resurrect it, even if the subsequent amendment removes the original prohibition. The Court further rejected any artificial distinction between post‑Constitution statutes that are wholly void—such as those violating Article 31—and those that are only partially void—such as statutes that might, in theory, be valid only for non‑citizens under Article 1.9. The Court regarded the latter category as a hypothetical, pedantic argument that does not support the application of the doctrine of eclipse. Accordingly, the Court held that all post‑Constitution statutes that run afoul of the mandatory prohibition contained in the first part of Article 13(2) are void, just as statutes passed without legislative competence are void, and that the doctrine of eclipse cannot be invoked to revive any of them.

The Court therefore concluded that the Constitution (Fourth Amendment) Act could not be employed to sustain the Transfer Act on the basis of the doctrine of eclipse. Since the Transfer Act did not satisfy the requirements of Article 31(2) as they existed at the time the Act was passed, the Court declared the Transfer Act unconstitutional and ordered that it be struck down. In addition, the Court directed that a declaration in favour of the petitioner be granted. Turning now to the second issue, the Court examined the constitutionality of the Forest Amendment Act. By this amendment, Chapter V‑A was inserted into the Forest Act, and the provision that attracted challenge was Section 38‑B. Section 38‑B empowers the State Government, by way of notification, to regulate or prohibit certain activities within any forest situated on land claimed by a claimant, wherever such regulation or prohibition is deemed necessary. The Court indicated that this provision would be considered in detail after addressing the earlier matters, but it noted that the challenge to Section 38‑B centred on the contention that the regulation contemplated therein was of a permanent nature, interfered with forestry operations, and took away rights without providing compensation. The Court signalled that it would now proceed to assess the validity of Chapter V‑A as originally enacted in light of these allegations.

The provision in section 38‑B authorises a regulation or prohibition when such regulation or prohibition appears necessary. The term “claimant” is defined in section 38‑A as meaning a person who claims to be entitled to the land or any interest therein that has been acquired, owned, settled or possessed, or who purports to have acquired, owned, settled or possessed such interest whether under, through or by any lease or licence executed prior to the commencement of the Abolition Act, or under and in accordance with any provision of any enactment, including the Abolition Act. It may be noted that in the year 1960 an amendment was made to this Act, adding certain other sections to Chapter V‑A. The impact of that amendment will be considered later; at present the focus is on the challenge to section 38‑B. It is alleged that the regulation or prohibition contemplated in section 38‑B is of a permanent character and that it interferes even with forestry operations. It is further alleged that the provision deprives persons of rights without providing any compensation. In essence, the challenge to Chapter V‑A, as originally enacted, is based on a comparison of its provisions with those of Chapter V of the Forest Act. If that comparison is correct, there may be merit in the petitioner’s argument that certain parts of Chapter V‑A, as originally enacted, are unconstitutional. The respondents, however, contend that Chapter V‑A, as originally enacted (that is, sections 38‑A to 38‑G), is not intended to supplement Chapter V but rather to supplement Chapter II of the Forest Act, and that it was meant to serve as a temporary measure for the protection of forests while proceedings under Chapter II are pending. Should the respondents’ view be accepted, the petitioner’s attack on Chapter V‑A, as originally enacted, would lose its foundation because that attack presumes that Chapter V‑A, as originally enacted, authorises the State to make permanent orders, and the contrast between Chapter V‑A and Chapter V would then expose the infirmities in Chapter V‑A. Consequently, it is necessary to examine the scheme of Chapter II of the Forest Act, which comprises sections 3 to 27 and deals with reserved forests. Section 3 empowers the State Government to declare any forest land or waste land that is Government property, or over which the Government has proprietary rights, or to which the Government is entitled with respect to forest produce, as a reserved forest. Section 4 provides for the issuance of a notification stating the Government’s intention to constitute a reserved forest. Section 5 bars the accrual of forest rights in the area covered by the notification under section 4 after the notification has been issued. Section 6 then, inter alia, gives the Forest Settlement Officer authority to issue a proclamation fixing a period of not less than three months from the date of such proclamation and requiring every person claiming any right mentioned in section 4 and section 5 to, within that period, either present a written notice to the Forest Settlement Officer specifying the nature of the right and the amount and particulars of any compensation claimed, or appear before the Officer to state the same.

Within the period prescribed by section 6, any person claiming a right in the forest land or waste land was required either to submit a written notice to the Forest Settlement Officer describing the nature of the claimed right and the amount or particulars of any compensation claimed, or to appear before the Officer and state the same facts orally. Section 7 empowered the Forest Settlement Officer to conduct his own investigation to discover such rights. Under section 8 the Officer was granted powers equivalent to those of a civil court when trying suits, thereby allowing him to summon parties, examine witnesses and compel the production of documents. Section 9 provided that any right which had not been claimed under section 6 would become extinguished when a notification was issued under section 20. Section II(1) stipulated that, in cases where a claim pertained to a right in or over any land—excluding a right of way, a right of pasture, a right to forest produce, or a water‑course—the Officer must pass an order either admitting or rejecting the claim, in whole or in part. According to section 11(2), if the claim was admitted wholly or partially, the Officer had three options: (i) to exclude the land concerned from the limits of the proposed forest; (ii) to reach an agreement with the owner for surrender of the right; or (iii) to acquire the land in accordance with the procedure laid down in the Land Acquisition Act of 1894. Sections 12 through 16 dealt with the determination of rights other than those in or over land, allowing the Officer to commute such rights by payment of money, by granting land, or by any other method he deemed appropriate. Section 17 established the right of aggrieved parties to appeal orders passed under sections 11, 12, 15 and 16, while section 18(4) authorized the State Government to revise any appellate order. Section 19 specifically permitted advocates to appear before the Forest Settlement Officer or before the appellate tribunal. After the completion of all these proceedings, the State Government was required to publish a notification under section 20 that definitively fixed the limits of the forest to be reserved, declared the area to be a reserved forest from the date fixed in the notification, and thereby caused the forest to be deemed a reserved forest from that date. The remaining provisions, which deal with ancillary matters following the notification under section 20, need not be discussed here. From this detailed review it is evident that Chapter II applies to forest land or waste land that is owned by the Government or over which the Government holds proprietary rights. By virtue of the notification issued under section 4, the Forest Settlement Officer was appointed to inquire into and determine the existence, nature and extent of any right alleged to exist in favour of any person in or over any land within the notified limits, or in respect of any forest produce, and to deal with such rights in accordance with the procedures set out in the Chapter.

In this Chapter, Section II laid down the procedure for adjudicating rights that existed in or over land. The provision stipulated that if it was established that such rights existed, the land could be removed from the limits of the proposed forest, or an agreement could be reached between the holder of the right and the Government concerning that land, or the Forest Settlement Officer could proceed to acquire the land in accordance with the procedure set out in the Land Acquisition Act.

The effect of this provision was that Chapter II clearly anticipated situations where forest land or waste land was owned by the Government or where the Government possessed proprietary rights over it. In those cases, the Forest Settlement Officer was required to determine any subordinate rights that might exist in the land before a notification under Section 20 could be issued to declare the area a reserved forest.

When determining those subordinate rights, the Forest Settlement Officer was endowed with powers equivalent to those of a civil court in the trial of suits. Consequently, any order made by the Officer was subject to appeal and could ultimately be revised by the State Government.

Section 5 further indicated that once a notification under Section 4 was made, no additional forest rights could accrue thereafter.

Nevertheless, after the Abolition Act came into force, it appeared that the existing powers under Section 5 were insufficient to control forests to the extent desired. The Abolition Act had transferred all lands to which it applied into the ownership of the State, thereby making those lands State property.

According to the respondents, this circumstance led to the enactment of the Forest Amendment Act in 1956. Although the Act did not contain an explicit or specific provision stating that, as originally enacted, it was merely a temporary measure to address difficulties that arose while proceedings under Chapter II were pending, the respondents argued that the Act functioned as an interim measure. Their contention was that the Act was intended to manage the situation that emerged after the Abolition Act became effective, while steps were being taken to designate reserved forests under Chapter II, given that all lands in the area covered by the Abolition Act had become State property.

In the Court’s opinion, this interpretation was reinforced by the definition of the word “claimant” found in Section 38‑A, and by the observation that the remainder of the Chapter, as originally enacted, dealt with claimants. The heading of the Chapter, however, appeared somewhat ambiguous because it read “‑of the Control over Forests of Claimants.” On its face, that heading suggested that the forests belonged to claimants and that the purpose of the provision was to control such forests.

This heading was consistent with the heading of Chapter V of the Forest Act, which stated “‑of the control over Forests and Lands not being the property of Government.” The parallel wording created the initial impression that, just as Chapter V dealt with forests and lands that were not Government property, Chapter V‑A also dealt with forests that were not Government property.

In this passage the Court observed that the term “claimant” in section 38‑A refers to a person who is making a claim rather than to a person whose claim has already been recognised. Consequently the Court held that it would not be erroneous to associate Chapter V‑A, as it stood when originally enacted, with Chapter XI of the Forest Act, which is concerned with claims and occasionally employs the word “claimant” – for example in section 11(b) – even though that chapter does not provide a definition of the term. The Court therefore concluded that the provisions of Chapter V‑A, covering sections 38‑A to 38‑G, were intended exclusively to address claimants who were lodging claims under Chapter II and whose claims would be adjudicated in that chapter. Accordingly, the heading of Chapter V‑A should be understood to mean the control of forests in respect of which claimants have made claims. Where such claims relate to rights in or over land, they would fall under section 11; where the claims pertain to other matters, they would be dealt with under sections 12 to 16.

The Court further noted that if the “claimant” described in section 38‑A were not the person actually making a claim under Chapter II, then Chapter V‑A, as originally drafted, would lack purpose because it provides no mechanism for handling the claims of claimants. This reasoning also clarified why section 38‑B uses the word “Prohibition,” which imposes restrictions even on legitimate forestry operations. The Court found it inconceivable that genuine forestry activities could be permanently barred without any procedure for resolving claimants’ rights. Hence, the Court held that Chapter V‑A, as originally enacted, served as a supplemental provision to Chapter II, granting additional powers of control while proceedings under Chapter II were pending. Viewed in this light, the original enactment of Chapter V‑A was constitutional and served the public interest by offering interim protection of forests until claims under Chapter II were settled and the forest could be declared a reserved forest under section 20.

The Court then addressed the argument that the amendment introduced by the Indian Forest (U.P. Amendment) Act 1960 (U.P. XXI of 1960) altered the character of the Forest Amendment Act. The amendment added sections 38‑H to 38‑M to Chapter V‑A. Section 38‑H(1) authorized the takeover of management of any specified forest or forest land for a period not exceeding fifteen years, and subsection (2) required that no such notification could be issued without first giving notice to a claimant, owner, or tenure‑holder of the forest or land. The Court observed that these new provisions are broader than the original sections 38‑A to 38‑G. However, the Court emphasized that it was not concerned with the operation of sections 38‑H onward, because no action had been taken under those provisions and the petitioner had not alleged any threat of such action.

In this case the Court observed that no proceeding had been instituted under the newly added provisions, and the petitioner had made no allegation that any such proceeding was imminent. The petitioner argued, however, that the inclusion of the new provisions indicated that sections 38‑A to 38‑G were no longer to be read with Chapter II but rather with the new provisions. The Court could not accept this argument. Firstly, when the legislature enacted sections 38‑A to 38‑G it could not have contemplated the later insertion of sections 38‑H to 38‑M. Secondly, section 38‑H, although it also deals with lands held by owners or tenure‑holders, continues to address the lands of claimants. Consequently, for claimants there remains a need for a mechanism to determine their claims, and such a mechanism is not found in any provision up to section 38‑M. Hence the Court returned to Chapter II for the claimants’ perspective. The Court therefore held that the addition of sections 38‑H to 38‑M did not alter the original position that sections 38‑A to 38‑G, as initially enacted, are supplementary to Chapter II, even though sections 38‑H onward may operate independently with respect to owners or tenure‑holders. The Court affirmed that sections 38‑A to 38‑G are ancillary to Chapter II and must be interpreted accordingly, and that their constitutionality as interim measures cannot be successfully challenged. The petitioner further contended that even assuming sections 38‑A to 38‑G are ancillary to Chapter II, they should not apply to his land because Chapter II deals, inter alia, with waste or forest land that belongs to the Government, whereas land that is not Government property falls under Chapter V. The Court noted that unless the petitioner can demonstrate that the disputed land is his private property rather than State property, Chapter II will apply. The Court observed that there was no dispute that the land in question was owned by the Maharaja Bahadur of Nahan prior to the Abolition Act and that the Maharaja acted as an intermediary. Accordingly, the land vested in the State under section 6 of the Abolition Act and became State property. The petitioner argued that if he were recognized as a bhumidhar in proper proceedings, the land would become his property and thus Chapter V‑A, as originally enacted and ancillary to Chapter II, would not apply. The Court found this contention lacking force. It reiterated that under section 6 of the Abolition Act all property of intermediaries, including the disputed land, vested in the State Government and became its property. While section 18 deemed certain lands to be settled as bhumidhari lands, the Court held that once land has vested in the State Government, the earlier designation does not divest the State’s ownership.

Under section 6 of the Abolition Act, no provision existed for the removal of property that had already vested in the State Government. The petitioner, however, contended that he was the proprietor of the land in question because he claimed the status of a bhumidhar under certain provisions of the Act. It was observed that before the Abolition Act there was no such proprietary right described as a bhumidhar right. The Act eliminated all proprietary rights in the area to which it applied and, by section 129, introduced three classes of tenure—bhumidhar, sirdar and asami—none of which had existed previously. Consequently, bhumidhar, sirdar and asami all became tenure‑holders under the Act, holding their tenure from the State in which the proprietary right had vested under section 6. While bhumidhars possessed somewhat broader rights within their tenures than sirdars, and sirdars enjoyed wider rights than asamis, all three were nevertheless mere tenure‑holders possessing varying degrees of rights under the State, which remained the proprietor of the entire land to which the Abolition Act applied. It was undisputed that the Abolition Act covered the land in dispute, so the State was the proprietor of that land, and even if the petitioner were a bhumidhar, he would remain a tenure‑holder rather than an absolute proprietor. Furthermore, the land in dispute was either waste land or forest land, having not yet been converted to agriculture; over such land the State held proprietary rights, and therefore Chapter II of the Forest Act clearly applied, as would Chapter V‑A. It is true that a bhumidhar possessed a heritable and transferable right and could use his holding for any purpose, including industrial or residential, and that any such use would be demarcated under section 143. Generally, there was no ejectment of a bhumidhar and no forfeiture of his land; he paid land revenue pursuant to section 241, a situation comparable to that of a sirdar, whose interest could not be transferred except as expressly permitted by the Act. Thus, the label of land revenue rather than rent did not automatically render the bhumidhar a proprietor, since a sirdar also paid land revenue despite having considerably lesser rights. While the rights of a bhumidhar approximated certain aspects of the proprietor’s rights that existed before the Abolition Act, those rights were in many respects narrower and more restricted than the former proprietor’s rights; for example, a bhumidhar had no right to the minerals beneath the sub‑soil, and section 154 imposed additional limitations on the powers of a bhumidhar.

The Court explained that Section 155 of the Act prohibited a bhumidhar from granting usufructuary mortgages, while Section 156 barred a bhumidhar, a sirdar or an asami from leasing the land to another party unless the transaction fell within the scope of Section 157. Section 189 (aa) provided that if a bhumidhar let out his holding, or any portion of it, in violation of the provisions of the Act, his right to the land would be extinguished. From these statutory restrictions, the Court concluded that although bhumidhars possessed greater rights than sirdars and asamis, they remained mere tenure‑holders under the State, which was the ultimate proprietor of all lands covered by the Abolition Act. Consequently, even if the petitioner were presumed to be a bhumidhar, he could not claim the status of a proprietor who was exempt from Chapter II of the Forest Act, and therefore Chapter V‑A, as originally enacted, would still apply. The Court cited the decision in Mst Govindi v. The State of Uttar Pradesh (1) to support this view.

The Court further noted that Sections 4 and 11 of the Forest Act conferred authority to determine all rights that are subordinate to those of a proprietor. Since the bhumidhar’s interest constituted a tenure‑holder right subordinate to the State’s ownership of the disputed land, the Forest Settlement Officer was authorized to examine the petitioner’s claim, provided the petitioner asserted himself to be a bhumidhar. This authority existed in addition to the provision of Section 229‑B of the Abolition Act. Accordingly, the Court held that even if the petitioner were a bhumidhar, he could not argue that the land in dispute fell outside the sweep of Chapter II, and thus Chapter V‑A, whether ancillary to Chapter II or not, would still be applicable. The Court affirmed the constitutionality of Chapter V‑A, as originally enacted, viewing it as a supplementary provision to Chapter II, and declared that both Chapter II and Chapter V‑A would apply to the land in question, even assuming the petitioner to be the bhumidhar, as supported by A.I.R. (1952) All 88.

The remaining issue for the Court was whether the notification issued under Section 4 remained operative. That notification had been promulgated under Chapter II of the Forest Act on 23 March 1955, followed by a proclamation under Section 6 on 26 April 1955. The petitioner argued that a later notification dated 19 December 1956 had withdrawn the Section 4 notification as it pertained to his land. The Court examined the document and determined that it was not a notification but a government order addressed to Conservators of Forests, Divisional Forest Officers, District Officers, the Secretary of the Board of Revenue and others. The order merely recorded that numerous representations had been received from claimants of lands that were formerly private forests, based on agreements executed before July 1952 with their owners, and that the Governor, after careful consideration, had decided that such lands should be released in favour of the lessees. The Court therefore concluded that the 19 December 1956 order did not constitute a valid revocation of the Section 4 notification, and that the original notification of 23 March 1955, having been published in the Gazette, remained effective.

In this case, the Court explained that the government order indicated that any land for which a valid legal reclamation lease had been executed by the owner should be released in favour of the lessee. The order also stated that if such land had been covered by any notification issued under section 4 of the Forest Act, it should be considered excluded from that notification. The Court noted that this government order was later cancelled by another order dated 7 July 1958, which was never published in the Gazette. Because a notification under section 4 of the Forest Act must be published in the Gazette to have any effect, the Court held that the cancellation order, being unpublished, could not alter the original notification. The notification dated 23 March 1956 had indeed been published in the Gazette and therefore remained a valid notification. The Court further observed that, under section 21 of the Uttar Pradesh General Clauses Act, 1904, a notification issued under section 4 could be cancelled or modified only in the same manner—that is, by a Gazette publication. Consequently, the December 1956 government order, which was merely a departmental instruction and later withdrawn, could not exclude any portion of the earlier notification. The Court concluded that the original notification stood as issued and that the petitioner could not rely on the un‑published December 1956 order, especially since that order had subsequently been cancelled.

The Court then turned to the validity of Chapter V‑A, which had been enacted as a supplementary measure to Chapter II, and held that Chapter V‑A was valid. Accordingly, the notification issued under Chapter V‑A must also be upheld. As a result, the Court allowed the petition in the extent that it struck down the Uttar Pradesh Land Tenures (Regulation of Transfers) Act, No. XV of 1952, declaring it unconstitutional and of no force or effect. The Court added that counsel for the respondents had indicated that, even after the judgment, if the petitioner filed a claim under Chapter II within thirty days, the Forest Settlement Officer would entertain the claim despite any time‑bar caused by the proclamation under section 6. Accordingly, the petition was allowed in part, the Transfer Act was declared unconstitutional, and the remaining prayer in the petition was rejected. The petitioner was nevertheless permitted to pursue any legal steps to establish his right under the lease registered in June 1952, while the State retained the right to contest that claim. Each party was ordered to bear its own costs, and the petition was allowed in part.