Union Of India vs Abdul Jalil And Ors

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

Court: Supreme Court of India

Case Number: Criminal Appeal Nos. 39, 49 of 1962

Decision Date: 05/05/1964

Coram: N. Rajagopala Ayyangar, M. Hidayatullah

The case was titled Union of India versus Abdul Jalil and others and was decided on 5 May 1964 by the Supreme Court of India. The judgment was authored by Justice N. Rajagopala Ayyangar, who sat with Justice M. Hidayatullah. The petitioner was the Union of India and the respondents were Abdul Jalil and his co‑accused. The citation for the decision is 1965 AIR 147 and 1964 SCR (8) 158. The matter concerned the application of the Indian Forest Act, particularly the definition of a “reserved forest,” and the relationship of that definition to the provisions of the Tripura Forest Act, which had previously governed the area now administered under the Indian legislation.

The respondents had been convicted by magistrates of offences punishable under section 26(1) of the Indian Forest Act. They appealed the conviction to the Sessions Judge, contending that the tracts of forest in which the alleged violations occurred were not “reserved forests” within the meaning of the Indian Act. In support of their claim, the appellant relied on two principal points. First, the ruler of the former State of Tripura had promulgated a Forest Act, identified as Act 2 of 1257 T.E. 1297, which contained provisions bearing some resemblance to those of the Indian Forest Act. Second, section 5 of the Tripura Act empowered the State Government to declare, by means of notifications published in the State Gazette, the boundaries of forest areas that would be governed by the State legislation. Such Gazette notifications had, in fact, been published, thereby defining the limits of the forest reserves that were the subject of the criminal prosecutions.

The Union of India argued that, following the merger of the native State of Tripura with the Dominion of India, the Tripura Forest Act had been superseded by the Indian Forest Act on legislative authority. Accordingly, the notifications issued under the Tripura Act that continued to be in force after the merger should be treated as creating “reserved forests” under the Indian Forest Act. The Sessions Judge accepted this argument, holding that because of the continuing effect of the Gazette notifications, the forest tracts in question qualified as “reserved forests” within the meaning of the Indian legislation, and consequently dismissed the respondents’ appeals.

The respondents then sought revision before the Judicial Commissioner. The Commissioner, departing from the Sessions Judge’s view, held that the forest areas did not qualify as “reserved forests” under the Indian Forest Act and therefore ordered the acquittal of the respondents. The matter proceeded to the Supreme Court on a petition for special leave to appeal. In its ruling, the Court first observed that, under the Indian Forest Act, a forest area becomes a “reserved forest” only when a notification is issued under section 20 after the procedural requirements laid down in the earlier sections of Chapter XI, beginning with section 4, have been satisfied. The Court further noted that the absence of any preliminary procedure prescribed by the Tripura Act for the notification of a reserved forest did not, in itself, prevent a notification issued under the Tripura Act from being regarded as a valid reservation under the Indian Forest Act.

In its analysis the Court observed that a notification issued under the Indian Forest Act does not, by itself, create a “reserved forest” within the meaning of that Act. The Court explained that the essential aim and purpose of the Tripura Act was to protect a specific group of trees, namely the seven types of trees enumerated in section 4 of that Act. Accordingly, the notification made under section 5 of the Tripura Act was intended to designate areas in which those particular trees would receive protection, and the penal provisions attached to the Tripura Act were designed to ensure that protection. The Court then turned to Chapter II of the Indian Forest Act and described its principal purpose as the constitution of reserved forests. Under that chapter, the Act required that all private rights existing in a designated area be extinguished by purchasing those rights and paying compensation where such rights were found to exist. The entire designated area was to be devoted to silviculture, and every tree standing in the forest was to be safeguarded from injury under the penal provision contained in section 26. In other words, the reservation created under Chapter II concerned the forest land as a whole, not the protection of any particular species or group of trees within that land. By contrast, Chapter IV of the Indian Forest Act was concerned with the protection of specific trees and with setting apart particular tracts of land as “protected forests” in order to promote the growth and maintenance of those trees. The Court noted that the objective pursued by the reservation provision in Chapter IV was essentially the same as the objective pursued by the Tripura Act. The only difference, the Court said, was that the Tripura Act extended the offence of cutting protected trees even when such cutting occurred outside a forest, a provision that does not exist in the Indian Forest Act. Consequently, the Court held that a notification made under section 5 of the Tripura Act could only create an area that qualified as a “protected forest” under Chapter IV of the Indian Forest Act, and could not be regarded as a “reserved forest” under section 20 of Chapter XI of the same Act. The Court further affirmed that the Judicial Commissioner had been correct in finding that the provision of the Indian Forest Act corresponding to the Tripura Forest Act, under which the boundaries of the forests in question were fixed, was the one relating to “protected forests” in Chapter IV, and not the provision concerning “reserved forests” in section 20 of Chapter XI. The judgment then set out the procedural posture of the appeals. The appeals were criminal appellate matters, numbered 39 and 49 of 1962, filed by special leave from the judgment and order dated 26 August 1960 of the Court of the Judicial Commissioner of Tripura at Agartala, which had been issued in several criminal revision numbers. The parties were represented by counsel for the appellant and counsel for the respondents. The judgment was delivered on 5 May 1964 by Justice Ayyangar. The respondents in the numerous appeals had been prosecuted before magistrates in Tripura for offences punishable under section 26(1) of the Indian Forest Act, 1927. They had been found guilty and sentenced to periods of imprisonment as well as to the payment of fines. Their convictions had been appealed to the learned Sessions Judge, whose decision was subsequently set aside by the Judicial Commissioner, leading to the present appeals before the Supreme Court.

The judge of the Tripura court was dismissed, and the accused subsequently filed a criminal revision petition before the Judicial Commissioner of Tripura. The Judicial Commissioner examined the revisions, issued a common judgment and ordered the acquittal of the accused. Following those acquittal orders, the Union of India obtained special leave from this Court under article 136 of the Constitution and filed appeals against the acquittals.

Before presenting the factual background that gave rise to these appeals, the Court noted that three of the scheduled criminal appeals—namely Criminal Appeals numbered 40, 41 and 45 of 1962—had become ineffective. In the cases of Appeals 40 and 45, the respondents could not be served with notice of the filing of the appeals because it was reported that they had departed for Pakistan, and consequently those appeals could not be pursued. In the matter of Appeal 41, the record indicated that the accused had died while the appeal was pending, resulting in the abatement of that appeal. As a result, the Court limited its consideration to the remaining eight appeals.

The Court then reproduced the relevant provisions of section 26(1) of the Indian Forest Act, 1927, which define the offences for which the respondents were prosecuted. The provision states that any person who—(a) makes any fresh clearing prohibited by section five, or who, in a reserved forest—(d) trespasses with cattle or permits cattle to trespass, (e) [text omitted], (f) fells, girdles, lops, taps or burns any tree, or strips bark or leaves from any tree, (g) [text omitted], or (h) clears or breaks up any land for cultivation or any other purpose—shall be punishable with imprisonment for a term which may extend to six months, or with a fine which may extend to five hundred rupees, or with both, in addition to compensation for damage caused to the forest, the convicting court being authorized to direct payment of such compensation.

The magistrate, after hearing the prosecution, convicted some of the accused respondents of offences under clauses (a) and (d), and convicted others of offences under clauses (d) and (h). It was unanimously accepted that, in order to constitute an offence under section 26(1), the prohibited acts must be committed in an area that is designated as a “reserved forest” under the Act. The Court observed that, had the area in question been confirmed as a reserved forest, the respondents’ guilt would have been virtually established and the convictions affirmed by the Sessions Judge of Tripura would likely have been sustained.

Consequently, the principal issue for determination in these appeals, though not the sole question, was whether the forest area where the respondents were alleged to have performed the acts described in the provisions of section 26(1) could indeed be characterized as a “reserved forest.” Before addressing that issue, the Court found it appropriate to briefly outline the factual circumstances that led to the prosecutions. The forests in which the respondents were said to have committed the offences covered three distinct tracts in the former Indian State of Tripura, which are identified as the Garjichhera reserve, the Chandrapur reserve, and the North Sonamura reserve.

In the matter before the Court, the alleged offences were said to have been committed in three separate forest areas located in the former Indian State of Tripura. These areas were identified as the Garjichhera reserve, the Chandrapur reserve and the North Sonamura reserve. In April 1958 an officer of the Forest Department conducted a circuit inspection of these forest tracts and observed that the persons accused of the offences had cleared portions of the forest, reclaimed land, excavated tanks for cultivation, and constructed homesteads on the cleared sites. On the basis of those observations, the prosecution alleged that the acts of the accused fell within the provisions of section 26(1)(a) and (h), in some instances also within sections 26(1)(a), (d) and (h), and in other instances within sections 26(1)(d), (f) and (h) of the Indian Forest Act. Accordingly, the accused were brought before the courts of the Magistrates having jurisdiction over the area. The accused acknowledged that they had built homesteads and were residing in structures that they had erected at the locations where they were found. Their only defence was that they were entitled to occupy the land on the basis of a claim of jote rights. No evidence was adduced by any of the accused to substantiate the claim that they had a right to trespass, plough and cultivate, or to erect homesteads on the lands where they were discovered. The learned Magistrates held that the prosecution had proved its case, that the accused had failed to establish their defence, and consequently found the accused guilty and imposed the appropriate sentences. The accused appealed those convictions to the learned Sessions Judge of Tripura. At the stage of the appeal, the accused contended that the forest areas comprising the Garjichhera, Chandrapur and North Sonamura reserves were not “reserve forests” within the meaning of the Indian Forest Act. To support the proposition that these reserves were indeed “reserved forests” under the Act, the prosecution relied on two circumstances. First, a Forest Act had been promulgated by the Ruler of the State of Tripura (referred to as Act 2 of 1257 TE 1297 T.E.), which contained provisions that were in many respects analogous to those of the Indian Forest Act. Second, section 5 of the Tripura Act empowered the State Government to declare, by notifications published in the State Gazette, the boundaries of forest areas to be governed by the Act. Three such notifications had been published in the Tripura State Gazette in the years identified as 1346 and 1349 TE, corresponding respectively to the calendar years 1936 and 1938, and these notifications defined the boundaries of the three reserves of Garjichhera, Chandrapur and North Sonamura. The prosecution argued that the Tripura Act was superseded by the Indian Forest Act through legislative provisions that would be referred to later, and that the notifications issued under the Tripura Act, which remained in force under those later provisions, consequently rendered the three reserves “reserved forests” within the meaning of the Indian Forest Act. The Court noted that the precise terms of the Act and of the notifications would be set out later, but that it was sufficient at this stage to recognize the factual background just described.

In the case under consideration, the Court noted that the locations where the respondents had cleared forested land and erected their homes were, without dispute, situated within one of the three forest reserves whose boundaries had been defined by the notifications issued under the Tripura Forest Act. Specifically, the respondents identified in Appeals numbered 39, 43, 47 and 49 were found to have entered the Garjichhera reserve without permission, those identified in Appeals numbered 42, 46 and 48 had entered the Chandrapur reserve, and the respondent in Appeal 44 had committed a comparable infringement in the area described as the North Sonamura reserve. When these three notifications were presented before the learned Sessions Judge, he concluded that, by virtue of those notifications, the three forest areas had become “reserved forests” pursuant to the applicable provisions of the Indian Forest Act. Accordingly, the Sessions Judge affirmed the magistrate’s conviction of the accused and dismissed the various appeals filed by them. Subsequent to that decision, revisions of the judgments were filed before the Judicial Commissioner of Tripura, raising the same question of law: whether, in view of the terms and provisions of the Tripura Forest Act, the notifications that delineated the boundaries of the three reserves could be deemed to constitute “reserve forests” under the Indian Forest Act. This issue was again examined before the learned Judicial Commissioner. Diverging from the view of the Sessions Judge, the Judicial Commissioner held that the notifications did not create “reserve forests” within the meaning of the Indian Forest Act and, on that basis, ordered the acquittal of the several accused. The correctness of the Judicial Commissioner’s conclusion is now being challenged by the present appeals. The Court therefore set out to determine whether the lands where the alleged offences occurred fell within “reserve forests” as defined by the Indian Forest Act. The Act describes “reserve forests” as those forest lands that are constituted as such under Chapter II of the Act, which comprises sections 3 to 27 and bears the heading “Of Reserved Forests”. Section 3 empowers the State Government to declare any forest land or waste land that is owned by the Government, or over which the Government holds proprietary rights, or any portion of forest produce to which the Government is entitled, to be a reserve forest in the manner prescribed thereafter. Section 4 requires that, once the State Government decides to constitute any land as a “reserved forest”, it must issue a notification in the Official Gazette specifying the situation, limits and other relevant particulars of that land and formally declare the land to be a reserve forest. Section 6 makes provision for the proclamation of the notification issued under Section 4 by publishing it in several places so that any persons who may be affected by the notification have the opportunity to raise objections. Section 7 directs a Forest Settlement Officer to conduct an enquiry into all claims made by persons in response to the publication of the notification under Section 6. Finally, Section 9 provides that any rights in respect of which no claim has been preferred shall be extinguished.

Section 6 of the Forest Act stipulated that when a claim was preferred and was determined to be valid, Section 11 then authorised the acquisition of the asserted rights or of the land to which those rights related, following the procedure laid down in the Land Acquisition Act. The statute subsequently provided that orders issued under these provisions could be appealed, and that such appeals were to be heard by the appropriate appellate authorities. After the enquiry stage and the determination of all claims were completed, Section 20 directed the State Government to publish a notification in the Official Gazette that precisely described, by reference to erected boundary marks or other means, the limits of the forest area to be designated as a reserved forest and that declared the area to be reserved from a date fixed in the notification. Sub‑section (2) of Section 20 added that from the date so fixed, the forest would be deemed to be a reserved forest. Section 21 required that the notification be translated and published in every town or village situated near the forest. The next pertinent provision, Section 26, prohibited certain acts within a reserved forest and prescribed punishments for violations, the essential parts of which had already been outlined. From these provisions, it was clear that a forest area became a “reserved forest” under the Act only after a notification issued under Section 20, which followed the procedures prescribed from Section 4 onward, was made. The forests in the former State of Tripura had not been declared reserved forests by such a notification issued under Section 20 of the Indian Forest Act after complying with the procedural requirements of Chapter H. Consequently, the Court examined the steps through which this result was said to have been achieved. The judgment noted the existence of the Tripura Forest Act of 1257 (1297?) enacted by the ruler of Tripura, which contained provisions for the preservation of forest areas in the State and under which notifications had been issued that designated three areas as “reserve forests” for the purposes of that Act. Although the details of those provisions required examination, the Court chose to defer that analysis until after completing the narrative of the constitutional changes that brought the State of Tripura into the Union of India and the legislation that accompanied those changes. Tripura had been a native State, and its ruler, by a merger agreement with the Governor‑General of India, merged the State with the Dominion in 1949. Paragraph 5 of the Tripura Administration Order, 1949, dated 15 October 1949 and issued under the powers conferred by the Extra‑Provincial Jurisdiction Act, 1947, provided that all laws in force in the State of Tripura immediately before the order’s commencement would continue in force until repealed or amended by a competent legislature or authority. Subsequently, the Constitution, which became operative on 26 January 1950, transformed Tripura into a Part C State of the Union of India. By virtue of Article 372 of the Constitution, the laws then in force in the territory of India—including the Tripura Forest Act, insofar as it applied to the former Tripura State—remained in effect until repealed or amended by competent legislation. The Part C States (Laws) Act, 1950 was then enacted by Parliament; under its Section 3, the Acts and Ordinances listed in the Schedule to the Merged States (Laws) Act, 1949 were extended to, and declared to be in force in, the State of Tripura in the same manner as they had been in force in the territories to which they previously applied. Among the enactments specified in that Schedule was the Indian Forest Act 1927, which therefore became applicable to Tripura. Section 4 of the Part C States (Laws) Act, 1950 further addressed the implementation of these provisions.

When the Constitution of India became operative on 26 January 1950, Tripura was transformed into a Part C State of the Union. By virtue of article 372, every law that was in force in the territory that now formed part of India continued to operate, and that continuation included the Tripura Forest Act to the extent that it applied to the former State of Tripura, until such law was repealed or amended by a competent authority. Subsequently, Parliament enacted the Part C States (Laws) Act, 1950. Section 3 of that Act provided that the Acts and Ordinances listed in the Schedule to the Merged State (Laws) Act, 1949 were to be extended to the State of Tripura and were to be deemed to be in force there in the same manner as they had been in force in the territories to which they previously applied. Among the enactments enumerated in the Schedule was the Indian Forest Act, 1927, and therefore that Act was extended to the State of Tripura.

Section 4 of the Part C States (Laws) Act, 1950 stipulated that any law which, immediately before the commencement of the Act on 15 April 1950, existed in any of the States that included Tripura and corresponded to an Act that was extended to that State by section 3, was to be repealed. The operation of this repeal was subject to two provisos, and the second proviso required construction in the present appeals. That proviso stated that, subject to the first, anything that had been done or any action that had been taken—including appointments, delegations, notifications, orders, instructions, directions, rules, regulations, forms, bye‑laws, schemes, certificates, patents, permits, licences or registrations—under the repealed law would be deemed to have been done under the corresponding provision of the Act or Ordinance now extended to the State by section 3, and would continue in force until it was superseded by a later act under the same provision. The question before the Court, therefore, was whether, as a result of sections 3 and 4 read in the light of the quoted proviso, the three forests that had been notified as “reserved forests” under the Tripura Forest Act of 1257 (T.E.) could be considered “reserved forests” under Chapter II of the Indian Forest Act, 1927. It was observed that, when the Indian Forest Act, 1927 was extended to Tripura in 1950, the Government could have initiated the formal procedure prescribed by Chapter II to create “reserved forests” in the State, but it chose not to do so and appears to have proceeded on the assumption that the areas already notified as “reserved forests” under the Tripura Act automatically became “reserved forests” under the Indian Forest Act.

It was observed that the Government had not followed the procedure prescribed by Chapter II of the Indian Forest Act to constitute reserved forests, and instead appeared to have relied on the assumption that the areas designated as “reserved forests” under the Tripura Act automatically qualified as “reserved forests” under the Indian Forest Act. The Court noted that it was undisputed that the Tripura Act, which had been continued by the Tripura Administration Order of 1949, ceased to exist after the enactment of the Part C States (Laws) Act of 1950. This was because the Indian Forest Act, being treated as a “corresponding law” to the Tripura Forest Act, was repealed by the operation of section 4 of the Part C States (Laws) Act. Moreover, the provisions of the Tripura Forest Act under which the three forest areas had been notified as “reserved forests” were issued under the proviso to section 4, which deemed such notifications to have been made under the corresponding provision of the law now extended to the State by section 3.

The Court explained that the extension of the Indian Forest Act to the territory of Tripura had the effect of repealing the Tripura Act, and that the Indian Forest Act contained two distinct categories of provisions for exercising control over forest lands. Consequently, a question arose as to which specific provision of the Indian Forest Act corresponded to the provisions of the Tripura Act, so that the earlier notifications could be treated as having been issued under the Indian law. After examining the relevant sections of the Tripura Forest Act, the learned Judicial Commissioner had concluded that, at most, the corresponding provision of the Indian Forest Act was that relating to a “protected forest” under Chapter IV, and not a “reserved forest” under Chapter XI. On that basis, the Commissioner held that the offence alleged against the accused, which was punishable under section 26, could not be sustained because there was no valid or effective notification of the land as a “reserved forest” within the meaning of section 20 of the Indian Forest Act. Accordingly, the Commissioner ordered the acquittal of the accused.

The present appeals challenged that conclusion. The principal argument advanced by the Attorney General, appearing for the Union of India, sought to demonstrate that the notifications designating the three forest areas as “reserved forests” under the repealed Tripura Forest Act of 1257 (or 1297) should be deemed to have been made under Chapter XI of the Indian Forest Act of 1927, which the Attorney General contended was the provision that corresponded to the repealed Tripura Act. The validity of this submission required examination. Before addressing that central issue, the Court indicated that it might first resolve a subsidiary point that could be raised in a Section 169 order, namely whether the Tripura Act notification could be treated as a notification under section 20 of the Indian Forest Act. One of the arguments presented in that context, which had also been raised before the Judicial Commissioner, was that Chapter II of the Indian Forest Act prescribed a detailed and mandatory procedure that must be complied with before any land could be declared a “reserved forest” under that statute. The Court observed that the Tripura Act did not contain any such procedural requirement, and that the argument based on the lack of procedural identity between the two Acts was intended to show that a notification under the Tripura Act could not be deemed a notification under a “corresponding provision” of the Indian Forest Act. The Court indicated that it could not accept that submission.

The appeal before the learned Judicial Commissioner asserted that Chapter II of the Indian Forest Act set out an elaborate, mandatory procedure that had to be complied with before any land could be declared a “reserved forest” under that Act. It was pointed out that the Tripura Forest Act did not contain any provision requiring such a procedure before an area was notified as a reserved forest or before it was constituted as one. On the basis of this distinction, the counsel contended that because the procedural requirements of the two statutes were not identical. Accordingly, a notification issued under the Tripura Act could not be treated as a notification made under a “corresponding provision” of the Indian Forest Act. The Court expressed its inability to accept this submission as correct. The scheme of the Part C States (Laws) Act was then explained. By virtue of section 3, certain central enactments were extended to the territories of the Part C States. Section 4 provided that if, on the date of such extension, the State possessed a law that was in pari materia and covered the same subject‑matter as the extended enactment, then the extended law would not repeal the existing State law. In the absence of such a law, section 4 would not operate and no repeal would be deemed to have occurred. Consequently, the Court noted that if no in‑pari‑materia law existed in Tripura on the relevant date, the Tripura legislation would have continued in force under section 5 of the Administration of Tripura (Laws) Order, 1949, which had been issued on 15 October 1949, and subsequently under article 372 of the Constitution. The Court further observed that to the extent that section 4 of the Part C States (Laws) Act did not effect a repeal, the Tripura Forest Act would have remained in operation.

It was thereafter clarified that the Indian Forest Act, having been extended to the territory by section 3, could be regarded as a “corresponding law” for the purpose of effecting repeal under section 4. The sole consideration for such a repeal was whether any existing law of the State corresponded to a law that had been extended by virtue of section 3. The Court reiterated that it was common ground that the Tripura Forest Act corresponded to the Indian Forest Act 1927 and therefore stood repealed when the latter was extended to Tripura. Having accepted that the extension of the Indian Forest Act effected a repeal of the Tripura Forest Act, the Court turned to the question of whether a notification issued under the Tripura Act could be deemed a notification under the “corresponding provision” of the Indian Forest Act. For this purpose, the Court held that the preliminaries to the notification or the procedure that must precede a notification were irrelevant. Only the question of whether the particular notification could be said to fall under a corresponding provision of the extended enactment – namely the Indian Forest Act – was determinative.

In the Court’s view, if the notifications had been issued after the State had fulfilled the procedural requirements set out in its own law and if those notifications remained effective because of the proviso contained in section 4, then the notifications necessarily had to be regarded as having been validly made under the Indian Forest Act. Applying this test, the Court observed that the absence of any preliminary steps prescribed by the Tripura law before a forest could be declared a reserved forest did not prevent such a declaration from being treated as a notification made under the Indian Forest Act of 1927. The Court then considered whether a notification issued under the Tripura Act could be treated as a notification under chapter 11 or under section 20 of the Indian Forest Act, because the prosecution’s case depended entirely on that question. To answer this, the Court said it was necessary to examine the provisions of the Tripura Act and to compare them with the corresponding provisions of the Indian Forest Act. The Court began its analysis with the Tripura Act. The pre‑amble of that Act, after noting that certain classes of trees had been regarded as protected since time immemorial, declared that it was necessary to consolidate the law in order to bring order to the supervision of those protected trees and to place the law on a sound footing. This language indicated that the Act was intended to protect specific trees rather than to reserve an entire area of forest for the protection of all trees within it. The Court noted that later it would have to refer to chapter TV of the Indian Forest Act, titled “Of Protected Forests,” which likewise aimed to protect particular trees in defined areas. Returning to the Tripura Act, the Court pointed out that section 3 provided for the repeal of earlier laws, saving only those rules or customs that were not inconsistent with the new Act. Section 4 was identified as a key provision, under which seven classes of trees were declared to be protected throughout the independent State of Tripura. The Act was organised into seven chapters, the first of which was headed “Of protection of Rakshita Bana,” a term translated as “Protected Forests.” Section 5, under which the three notifications previously mentioned had been issued, required that the boundaries of a Rakshita Bana be fixed and that this information be posted in all police stations, offices, markets, ports and other public places within the State. Section 6 prohibited any person from carrying out shifting cultivation, known as “Jhum,” within a half‑mile radius of a Rakshita Bana. Sections 9 to 11 listed the acts that were forbidden in the notified forest areas, beginning with a prohibition on setting fire to the hills in a manner that could damage a Rakshita Bana.

In this case the Court set out the operative provisions of the Tripura Act that relate to the protection of a Rakshita Bana. Section 9 provides that “No person shall set fire to the hills in such a manner which may cause damage to a Rakshita Bana in any way”. Section 10 states that “No person shall enter into a Rakshita Bana carrying fire”. The Act further declares that “No person shall enter into a Rakshita Bana carrying axe or other weapons which may be used for cutting trees without permission”. Chapter XI, which opens with section 12, is headed “Of Gradual Development of Rakshita Banas”. Section 12 mandates that each year protected species such as sal and other valuable trees shall be grown either by sowing seeds or by other means. Section 13 provides that suitable sites for such planting shall be selected at regular intervals after obtaining the necessary sanction. Section 14 allows that if trees other than those listed in section 4 are present in a Rakshita Bana and are considered harmful to the growth of the protected trees, those other trees may be cut. Section 15 requires that if any old tree specified in section 4 is cut, a new tree must be grown in its place. Section 16 forbids any person on any account from cutting any tree within the reserved forest in a manner that might cause damage to the block. Section 17 deals with dense growth of any specific type of tree mentioned in section 4 and provides that where such growth is mutually detrimental to the general growth of the trees, some may be cut according to necessity. Chapter III, titled “Of Penalties”, contains the penal provisions. Section 18 makes any person who kindles fire in a forest punishable with imprisonment. Section 19, which received particular emphasis, provides that “Whoever fells any tree within the limits of a Rakshita Bana shall be punished with rigorous imprisonment which may extend to three months or with fine which may extend to Rs 500 or with both”. Section 20 reads: “Any person who cuts any tree as specified under section 4 outside the limits of a reserved forest shall be punished with rigorous imprisonment which may extend to two months or with fine which may extend to Rs 200 or with both”. The Court pointed out that under section 20 the cutting of the protected trees listed in section 4 constitutes an offence even when the cutting occurs beyond the limits of the forest notified under section 5, the only distinction being that a heavier punishment applies when the offence is committed within the notified boundaries. The remaining chapters of the Act deal with the duties of officials and the manner in which they should perform their functions, and the Court noted that those chapters have little relevance for the purpose of the present appeals. From the above summary of the provisions the Court concluded that

The Court observed that, in essence, the Tripura Act was enacted to protect a specific group of trees, namely the seven species enumerated in section 4. The notification made under section 5 was intended to create designated zones in which those particular trees would receive protection. The penal provisions contained in the Act were therefore aimed at guaranteeing the safety of the specified trees. The Court noted that section 16 imposes a blanket prohibition on cutting any tree within a forest where such cutting would cause damage to any block, while section 19 provides a penalty for the cutting of any tree that lies within the forest area. However, the Court held that, when read together with the other provisions of the Act and with the overall purpose for which the legislation was enacted, these penal sanctions were principally directed at ensuring the effective protection of the trees listed in section 4.

Turning to the question of whether Chapter II of the Indian Forest Act could be regarded as analogous to the Tripura Act—so that a notification issued under section 5 of the Tripura Act might be treated as a notification under Chapter II or as an application of section 20 of the Forest Act—the Court set out the various provisions of Chapter II and explained their object. The principal aim of Chapter II is to constitute reserved forests. In doing so, it seeks to (1) extinguish all private rights that may exist within the reserved area by acquiring such rights through payment of compensation, and (2) devote the entire area to silviculture, thereby protecting every tree in the forest from injury and bringing it within the scope of the penal provision contained in section 26. In other words, the reservation under Chapter II applies to the forest area as a whole rather than to particular species or types of trees. The Court then examined the terms of the notification issued under section 5 of the Tripura Act, which delineated the boundaries of several forests. Because the three notifications were substantially identical in form, the Court considered it sufficient to reproduce the notification that defined the limits of the Garjichhera reserve. That notification contained the following conditions: (2) Jhum cultivation was prohibited within the forest area; (3) land that had previously been settled within the forest would remain valid, and plough cultivation would be permissible in that area; (4) any fallow taluka land falling within the area would be deemed to lie outside the reserve; (5) until further orders, the cutting of all kinds of trees was prohibited within the reserve, although the cutting and export of unclassified forest products would be permissible; (6) except in the settled area, grazing of all kinds of animals elsewhere in the reserve would be prohibited; and (7) a certain kind of hunting within the reserve was prohibited. The Court emphasized that particular attention was given to condition 5, which expressly forbade the cutting of trees within the reserve.

The Court observed that the provision under consideration is essentially a verbatim copy of section sixteen of the Tripura Act and does not extend its operation beyond what that statutory provision already provides. Consequently, the Court could not accept the argument that, because of this clause, the area notified as a reserved forest automatically becomes a reserved forest of the same character prescribed in Chapter Two of the Indian Forest Act. The Court explained that, since the notification was made pursuant to the Tripura Act, it must be interpreted in light of the prohibition on cutting trees that is contained in that Act. The Court had previously examined section sixteen and held that its purpose was to safeguard the trees enumerated in section four of the Tripura Act. Notwithstanding that purpose, the Court noted that clause five of the notification expressly allows the removal of certain forest produce, a concession that was apparently intended not to disturb the essential function of the forest as a sanctuary for the protected trees. The Court further observed that the other two notifications do not authorize the cutting of bamboo or similar material without a government permit, but in the Court’s view this distinction does not alter the analysis. Turning to Chapter Four of the Indian Forest Act, the Court found a clear correspondence between the Tripura legislation and the provisions of that chapter. In particular, section thirty of Chapter Four, which parallels section four of the Tripura Act, empowers the State Government, by means of a notification in the Official Gazette, to (a) declare any tree or class of trees within a protected forest as reserved from a date specified in the notification; (b) order that any portion of such forest identified in the notification be closed for a term not exceeding thirty years, at the discretion of the State Government, with the effect that any private rights over that portion are suspended for the duration of the closure, provided that the remaining forest area is sufficient and reasonably convenient for the exercise of the suspended rights; and (c) prohibit, from a specified date, activities such as quarrying stone, burning lime or charcoal, collecting or processing any forest produce, removing any forest produce, or clearing land for cultivation, building, cattle‑herding or any other purpose within the forest. The Court then referred to section thirty‑one, which mandates the publication of a notification under section thirty and the formulation of regulations under section thirty‑two for protected forests, that is, areas where specific trees are given protection. Finally, the Court noted that section thirty‑three prescribes penalties for offences committed in contravention of a notification issued under section thirty or of rules made under section thirty‑two. Section thirty‑three states that any person who commits any of the enumerated offences—such as felling, girdling, lopping, tapping or damaging any tree reserved under section thirty, or stripping bark or leaves, or otherwise harming such a tree—shall be liable to imprisonment for up to six months, a fine of up to five hundred rupees, or both.

In the provision cited, the law makes it an offence to act contrary to any prohibition under section 30 by quarrying stone, burning lime or charcoal, or collecting, processing or removing any forest produce; to break up or clear any land in a protected forest for cultivation or any other purpose; to set fire to such forest; to kindle a fire without taking reasonable precautions to prevent its spread to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of the forest; to leave a fire burning near any such tree or closed portion; to fell any tree or drag timber in a manner that damages any reserved tree; to permit cattle to damage any such tree; or to infringe any rule made under section 32. Each of these offences is punishable by imprisonment for a term that may extend to six months, by a fine that may extend to five hundred rupees, or by both imprisonment and fine.

The Court observed that Chapter IV of the Indian Forest Act is intended to protect specific trees and to designate particular areas as protected forests so that the growth and maintenance of those trees can be ensured. The purpose underlying the reservation made in Chapter IV is therefore essentially the same as the purpose sought by the Tripura Act. The Tripura Act, however, goes further by making the cutting of protected trees an offence even when such trees are located outside a forest, a provision that does not exist in the Indian Forest Act. Consequently, when a provision “corresponding” to the repealed Tripura Forest Act is sought, it is found not in Chapter II of the Indian Forest Act, which deals with reserved forests, but in Chapter IV, which deals with protected forests.

The Court noted that the present prosecutions were initiated on the basis of offences alleged under section 26. Accordingly, the learned Judicial Commissioner was correct in holding that the prosecution had failed to establish that the accused had committed an offence under the provision for which they were charged, because the three forests involved had not been notified as reserved forests under a provision that corresponds to Chapter II of the Indian Forest Act. The Court therefore affirmed that the Judicial Commissioner was right in determining that the provision in the Indian Forest Act “corresponding” to the Tripura Forest Act, under which the notifications fixing the boundaries of the three forests were issued, was the provision relating to a “protected forest” in Chapter IV, and not a “reserved forest” under section 20 of Chapter II. As a result, the order acquitting the several respondents was upheld and the appeals were dismissed. The Court further stated that, given its view on the principal question, it was unnecessary to examine whether any other legal defences were available to the accused. For example, the accused had been found guilty of offences under sections 26(1)(a), (d) and (h).

The Court noted that the respondents had been charged with offences under sections 26(1)(a), (d) and (h). Regarding the offence under clause (a), the learned Attorney‑General acknowledged that a fundamental condition for finding a person guilty of that particular offence was the existence of a valid notification issued under section 4. The Court referred to the text of section 5, which is invoked by section 26(1)(a), and reproduced it in full: “After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.” In light of this provision, the Court held that where no such notification under section 4 had been issued, the accused could not be held liable for a contravention of section 26(1)(a). Consequently, the charge under clause (a) could not stand.

The Court then turned to the charges under clauses (d) and (h). It explained that the issue to be examined was whether, assuming those clauses were not offences under the Tripura legislation, the accused could nevertheless be prosecuted on the basis of (a) the extension of the Indian Forest Act to the State of Tripura and (b) the effect of the Tripura notification being treated as a “deemed notification” under the corresponding provision of the Indian Act. The Court declared that a detailed analysis of this problem was unnecessary, because it had already concluded that the notification issued under section 5 of the Tripura Act designated the land in question only as a protected forest within Chapter IV of the Indian Forest Act, and not as a “reserved” forest contemplated in section 20 of Chapter II of the same Act. With that determination, the Court found no legal basis to sustain the appeals and therefore dismissed them. The appellant, who had earlier undertaken to pay the respondents’ costs upon admission of the appeals, was ordered to comply with that undertaking and to pay the costs to the respondents, together with one hearing fee. The appeals were consequently dismissed.