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[Section 38]
[Entire Act]
Union of India - Subsection
Section 38(2) in Indian Forest Act, 1927
| [Delhi].- In sub-S. (1), for the word two-thirds, substitute one-half.Act 66 of 1948, Section 30.[Himachal Pradesh].- Same as that of Punjab.H.P. Act 25 of 1968, Section 3 (w.e.f. 17-2-1969).[Punjab, Haryana and Chandigarh].- In Section 38, sub-S. (1), for the words the owners of shares amounting to at least two-thirds thereof, substitute the owners of the majority of shares therein.Punjab Act 13 of 1962, Section 4 (w.e.f. 10-7-1962) and Central Act 31 of 1966, Section 88, Punjab Act 13 of 1962 has been repealed by Section 7, H.P. Act 25 of 1968 in so far as it applies to the areas merged in Himachal Pradesh under Section 5 of the Punjab Reorganisation Act, 1966.[West Bengal].-Seeunder Section 35.[Uttar Pradesh]Addition of Chapter V-A. In its application to the State of Uttar Pradesh, after Chapter V, add the following as new Chapter V-A, namely:Chapter V-A Of the Control over Forests of Claimants38-A. Definition.In this Chapter, unless there is anything repugnant in the subject or context,(a) Claimant as respects any land means a person claiming to be entitled to the land or any interest therein acquired, owned, settled or possessed or purported to have been acquired, owned, settled or possessed whether under, through or by any lease or licence executed prior to the commencement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, or under and in accordance with any provision of any enactment, including the said Act;(b) forest means a tract of land covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest-produce, or grazing facilities, or on climate, stream-flow, protection of land from erosion, or other such matters and shall include(i) land covered with stumps of trees of a forest;(ii) land which is part of a forest or was lying within a forest on the first day of July, 1952;(iii) such pasture land, water-logged or cultivable or non-cultivable land, lying within, or adjacent to, a forest as may be declared to be a forest by the State Government.(c) forest-land means a land covered by forest or intended to be utilized as a forest; and(d) prescribed means prescribed by rules made under this Act.38-B. Power to regulate or prohibit breaking or clearing, etc.(1) The State Government may by notification in the Official Gazette regulate or prohibit in any forest (situate in or upon any land of a claimant)(a) the breaking up or clearing of the land for cultivation or any other purpose;(b) the firing or clearing of the vegetation;(c) the girdling or tapping or burning of any tree or the stripping off of the bark from any tree;(d) the lopping and pollarding of trees;(e) the cutting, sawing, conversion or, the removal of trees where such regulation or prohibition appears necessary(i) for the conservation of trees and forests; or(ii) for the improvement of grazing; or(iii) for the maintenance, increase and distribution of supply of fodder, timber or fuel; or(iv) for the protection of land against erosion; or(v) for subserving the interests of the general public.(2) No notification shall be made under sub-section (1) until after the issue of a notice to the claimant of the land calling on him to show-cause within a reasonable period, not less than fourteen days and not exceeding thirty days, to be specified in such notice, why such notification should not be made, and until objections, if any, and any evidence he may produce in support of the same, have been heard by an officer not below the rank of an Assistant Collector of the first class appointed in that behalf and considered by the State Government.(3) It shall be lawful for the State Government to make the notification under sub-section (1) either in respect of any particular forest or generally in respect of all forests situate in an area.38-C. Prohibition or regulation in emergent cases.Where it is proposed to issue a notification in respect of any forest or generally all the forests in any area under section 38-B and the State Government is satisfied that immediate action is necessary to prevent the doing of all or any of the acts mentioned in clauses (a) to (e) of sub-section (1) of the said section, it may by notification in the Official Gazette prohibit the doing except as and in the manner specified, of such act in respect of that forest or, as the case may be, generally all forests situate in any area as may be specified and, thereupon, no person shall, notwithstanding any claim, right, agreement, custom, usage or law to the contrary, do any of the said acts in such forest or forests until expiry of six months from the date of the notification and until the objection, if any, filed in pursuance of the notice, under sub-section (2) of section 38-B, has been heard and considered by the State Government.38-D. Service of notice.The notice under sub-section (2) of section 38-D shall(a) in the case of a notification affecting an individual person (not being a corporation, firm or body of persons) be served on that person(i) personally by delivering or tending to him the notice, or(ii) by registered post, or(iii) where the person cannot be found, by leaving an authentic copy of the notice with some adult male member of his family or by affixing such copy in some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain.(aa) in case of a notification a corporation, firm or body of persons, be served on the manager, principal officer or agent thereof in the manner provided in clause (a); and(b) in the case of a notification of a general nature in relation to all forests in an area, be served by publication in the Official Gazette and it shall not be necessary, unless the State Government so directs, to serve the notice individually on the claimants.38-E. Application of section 36 of Act 16 of 1927.The provisions of section 36 shallmutatis mutandisapply to any regulation or prohibition notified under section 38-B or 38-C.38-F. Penalties.Any person who(i) breaks up or clears any land for cultivation or any other purpose, fires or clears any vegetation, girdles, taps, burns, lops, pollards, fells, cuts, saws, converts or removes or strips off the bark from any tree, in any forest in respect of which a notification under section 38-B or 38-C or 38-H has been issued, or does any of the aforesaid acts in contravention of the provisions contained in sub-section (4) of section 38-H, or(ii) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading, or(iii) permits cattle to damage any such tree, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.38-G. Saving.The powers conferred by sections 38-B, 38-C, 38-D and 38-H shall be in addition to and not in derogation of any other powers conferred on any authority by or under any other provision of this Act.U.P. Act 5 of 1956, as amended by U.P. Acts 21 of 1960 and 11 of 1964.38-H. Power to take over management.(1) Whenever it appears to the State Government that the taking over of the management of any particular forest, or forest-land, is necessary or expedient in the public interest, or in order to secure the proper management thereof, particularly with a view to ensure its planned development as a forest, it may, by notification in the Official Gazette do so for all or any of the said purposes for such period, not exceeding fifteen years, as may be specified in the notification.(2) No notification under sub-section (1) shall be issued until(a) after the issue of a notice by the Forest Officer to the claimant or the owner or tenure-holder of the forest or forest-land, as the case may be, affording him reasonable opportunity to show cause within a period of not less than fourteen days from the date of service of the notice on him to be specified in such notice, why management of the forest or forest-land specified therein be not taken over; and(b) objections, if any, have been heard and disposed of by the Forest Officer in the manner prescribed.(3) The notice referred to in sub-section (2) shall be served upon the person concerned in accordance with the provisions of section 38-D.(4) No person shall, after the service of the notice referred to in sub-section (2), do or permit or cause to be done, save with the permission of the Forest Officer, any of the following acts on or in respect of such forest or forest land, namely:(a) the breaking up or clearing of the land for cultivation or any other purpose;(b) the firing or clearing of the vegetation;(c) the girdling or tapping or burning of any tree or the stripping off the bark from any tree;(d) the lopping or pollarding of trees;(e) the felling, cutting, sawing, conversion or removal of trees;until(i) where objections under clause (a) of sub-section (2) have been filed, the disposal thereof under clause (b) of that sub-section and thereafter, unless the objections have been allowed for a further period of six months or the publication on the notification under sub-section (1), whichever is earlier;(ii) where no objections under clause (a) of sub-section (2) have been filed the publication of notification under sub-section (1) or expiry of six months from the date of service of notice, whichever is earlier.38-I. Consequences of notification under section 38-H.The State Government shall, in respect of a forest, or forest-land for which a notification under section 38-H has been issued(i) place the forest, or forest-land, as the case may be, with effect from the date of the notification, in the charge of a Forest Officer, for carrying out the purposes mentioned in the notification, and thereupon the provisions of section 5 shallmutatis mutandisapply to such a forest or forest-land, as the case may be, and(ii) be liable and pay to the claimant or the owner or the tenure-holder of the forest, or forest-land, as the case may be, the balance of the income, if any, accruing to it therefrom, for the period commencing from the date of notification till the date it is released under section 38-L after deducting therefrom such percentage of it, not exceeding twenty, as may be prescribed for cost of management and the amount, if any, spent by the State Government on its development.38-J. Payment in respect of forests already in possession of the State Government.In the case of a forest, possession whereof was taken over by the State Government prior to the commencement of the Indian Forest (U.P. Amendment) Act, 1960, and the management whereof is taken over in accordance with the provisions of section 38-H, the State Government shall, in the absence of a contract between the State Government and the person concerned to the contrary, be liable to pay, for the period commencing from the date of possession till the issue of the notification under the said section, the balance of income accruing therefrom in accordance with the provisions of section 38-I(ii) as if the provisions of the aforesaid Act has been in force at all material dates and the management of such forest had been assumed on the date of taking over possession thereof; anything contained in any other law, custom, usage for the time being in force or contract to the contrary notwith-standing.38-K. Permission to cultivate areas lying within a forest or forest land taken over under this Act.(1) The State Government may, where it is satisfied that it is necessary so to do in the public interest on the application of the person whose forest or forest-land, as the case may be, has been taken over under section 38-H, allow him to cultivate such part of it, and being in excess of one-fifth of the total area of such forest or forest-land, as the case may be, and for such period, not being beyond the period of its management, as may be specified in the order granting the permission.(2) An application under sub-section (1) shall be submitted to the Forest Officer in charge of the forest or the forest-land, as the case may be, who shall forward the same, with his recommendations thereon, to the State Government.(3) The decision of the State Government on the application under sub-section (2) shall be final and be not questioned in any Court of law.38-L. Release of a forest or forest land from management.The State Government may, at any time, by notification in the Official Gazette, release from its management any forest or forest-land, as the case may be, taken over under section 38-H and thereupon the forest or the forest-land, as the case may be, shall cease to be under the management of the State Government, and the liability of the State Government in respect of the forest or the forest-land, as the case may be, shall cease with effect from the date of release specified in the notification.38-M. Powers to make rules.(1) The State Government may, after previous publication in the Official Gazette, make rules to carry out the purposes of this Act.(2) In particular and without prejudice to the generality of the foregoing power, such rules may(a) provide for the items for which and the manner in which, the cost of management shall be calculated;(b) prescribe the procedure for the hearing and disposal of objections under this Act;(c) prescribe the mode of management or development of the forest or the forest-land taken over under this Act;(d) prescribe the form of application under section 38-K and the particulars that must be given therein; and(e) prescribe any other matters which are to be, and may be, prescribed under this Act.(3) All rules made under this Act, shall, as soon as may be after they are made, be laid before each House of the Legislature while it is in session, for a total period of fourteen days extending in its one session or more than one successive sessions and shall, unless some later date is appointed, take effect, from the date of their publication in the Official Gazette, subject to such modification or annulments as the two Houses of the Legislature may agree to make; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder.U.P. Act 31 of 1960, as amended by U.P. Act 11 of 1964. |