Patna High Court
Harsi Mandal And Ors. vs The State on 19 January, 1953
Equivalent citations: AIR1953PAT277, 1953(1)BLJR249, AIR 1953 PATNA 277
JUDGMENT Jamuar, J.
1. This is a reference under Section 438, Criminal P. C. made by the Sessions Judge of Monghyr recommending that a proceeding under Section 107, Criminal P. C. commenced by the Sub-Divisional Magistrate of Monghyr by his order dated 27-6-1952, be quashed, and the Sub-Divisional Magistrate be directed to start a proceeding under Section 145, Criminal P. C., if he finds that an apprehension of a breach of the peace still exists. The proceeding under Section 107 has been directed to be drawn up against Harsi Mandal and ten others, and the learned Sessions Judge, having been moved by those persons, has made the present reference. Harsi Mandal has also filed an application in revision against the said order of the Sub-Divisional Magistrate, and this application has been heard along with the reference.
2. Plot No. 182 of village Matsumbha, having an area of 81.50 acres, is jungle land. In the record-of-rights, it was recorded in shamilat khewat No. 6 in the names of certain tenure-holders. In 1908, the Maharaja of Darbhanga instituted a proceeding under Section 106, Bihar Tenancy Act, claiming a portion of plot No. 182 namely, about 42 acres, to have been wrongly recorded in the record-of-rights in the names of the tenure-holders, and further claimed that this area should have been recorded in his own name as being in his khas possession. In the month of July 1909, this dispute ended in a compromise, as a result of which it was ordered that the name of the Maharaja of Darbhanga should be recorded in respect of that area as belonging to him absolutely and being in his khas possession, and a direction was given for the correction of the entry in the re-cord-of-rights to that extent.
3. In the meantime, the Bihar Legislature passed an Act in 1946, namely, the Bihar Private Forests Act (Bihar Act 3 of 1946), which made provisions for the conservation of forests which were not vested in the Crown or in respect of which notifications and orders issued under the Indian Forests Act, 1927, were not in force. Section 13 of Chap. III of this Act was as follows:
"If the Provincial Government is satisfied at any time that it is necessary in the public interest to apply the provisions of this Chapter to any private forest; it may constitute such a forest a private protected forest in the manner hereinafter provided."
And Section 14 commenced as follows:
"Whenever it is proposed by the Provincial Government to constitute any private forest a private protected forest, the Provincial Government shall issue a notification (a copy of which shall be served on the landlord in the prescribed manner)............"
And thereafter followed what should be the contents of the notification which it is unnecessary to state. Sub-section (1) of Section 21 provided that, at the time of issuing a notification under Section 14. the Provincial Government could make an order prohibiting the cutting, collection and removal of any trees, etc. in the forest in respect of which such a notification is issued.
4. Thus, under the provisions of Ss. 14, and 21, Bihar Private Forests Act of 1946, a notification was issued on 26-9-1946, in respect Of the Matsumbha forest, of which plot No. 182 is a part, and the Maharaja of Darbhanga was named in it as the landlord.
5. In 1948, an Act, known as the Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948), was passed to re-enact the Bihar Private Forests-Act of 1946 with certain modifications. Sections 13 and 14 as also Section 21 of the Act of 1946, referred to above, were re-enacted in this Act of 1948. Accordingly, on 16-8-1948, fresh notification was issued in respect of this forest under the Act of 1648 which was similar to the one issued in 1946 under the Act of 1946.
6. The landlord mentioned in the notification, namely, the Maharaja of Darbhanga, was entitled to present an objection under Clause (C) of Section 14 to the forest being constituted a private protected forest. Such an objection was filed, and it was disposed of under Sub-section (1) of Section 15 of the Act by having been dismissed.
7. The Maharaja filed a title suit, being No. 23 of 1948, in the Court of the 1st Subordinate Judge, Monghyr, against the Province of Bihar claiming various reliefs, including a permanent injunction against the Province of Bihar restraining them from interfering with his possession over the forests in Matsumbha and other villages. An application for a temporary injunction was also made, and it was rejected by the trial Court on 24-8-1948, with the finding that the Province of Bihar had already taken possession of the forests in dispute, and was, therefore, already in possession of the forests in dispute. An appeal from that order to the High Court was unsuccessful, the High Court observing that, the Province of Bihar having already taken possession of the forests, no sufficient cause had been made out for the grant of a temporary injunction. The title suit. No. 23 of 1948, itself was decided on 29-8-1949, and the Court refused to grant any relief to the Maharaja in respect of plot No. "182. One Gulabi Sah was one of the tenure-holders recorded in the record-of-rights. As a result of the compromise, the Maharaja's name was ordered to be recorded in his place also. Harsi Mandal claims to have purchased the interest of Gulabi Sah, and thus now claims to be in possession. It is to be noted that Gulabi Sah had deposed for the Maharaja of Darbhanga in the title suit No. 23 of 1948, thus supporting the Maharaja's case that he was in khas possession, which is clearly in conflict with the present case of Harsi Mandal that Gulabi Sah was in possession and after him, he himself. So it appears from the affidavit filed on behalf of the State.
8. Section 30, Bihar Private Forests Act, 1947, (Bihar Act 9 of 1948) provides that, when certain events mentioned in that section have occurred, "the Provincial Government shall publish a notification in the Official Gazette specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest from a date fixed by the notification, and from the date so fixed such forest shall be deemed to be a private protected forest".
Such a notification was published on 16-6-1948.
9. In June 1949, Mr. H. R. Bhattacharjee, a Sub-Deputy Magistrate, having been appointed a Forest Settlement Officer, went to the jungle in question to hold an enquiry. It is stated in the affidavit filed on behalf of the State that at this enquiry Gulabi Sah had appeared, and the only claim which he had made was that the tenants take their requirements of fuel Find timber on payment to the Dharbhanga Raj at rates fixed by the Raj. Thus, it was contended that the possession of the Maharaja of Darbhanga was asserted at that time as well. Then the forest Department conducted demarcation proceedings of the notified jungles of village Matsumbha, and in these proceedings one Sukar Sah, another tenure-holder and also a vendor of Harsi Mandal, as stated in that affidavit, had worked as chain-man, and had received his wages. At this demarcation proceeding, the 42 acres of plot No. 182 (the disputed area) were demarcated in the north-western portion of plot No. 182, and 28 boundary pillars were erected.
10. The 42 acres of plot No. 182, along with some other jungle lands were formed into a coup known as Bhagwanpur coup No. 2, and this coup, having been advertised for sale at a public auction, was sold to one Mauleshwari Singh on 6-2-1952.
11. Under Section 77, Bihar Private Forests Act, 1947, the Provincial Government has been empowered to make rules to carry out the purnoses of the Act, and such rules, havine been framed, were published in the Bihar Gazette dated 14-4-1948. Rule 3 is for regulating the cutting, sowing, etc., of trees and timber and the collection, manufacture and removal of forest produce from private protected forests, and it contemplates the sale and lease of the "right to exploit forest produce". It was this right to exploit forest produce which was sold to Mauleshwari Singh under the article of agreement dated 6-2-1952. This sale was, therefore, in accordance with the rules. Mauleshwari Singh, therefore, claims the right to deal with the forest purchased by him in accordance with the articles of agreement.
12. On the other hand, the case of Harsi Mandal and the ten others is that they are transferees from the tenure-holders, and as such they claim to be in possession of the 42 acres of plot No. 182, and to be entitled to cut timber, etc., therefrom. This transfer is said to have been made in their favour on 28-1-1952, which is long after the date of the publication of the notification under Section 30 of the Act of 1948 declaring this portion to be a private protected forest.
13. It is stated in the affidavit that, on 9-3-1952 Harsi Mandal and others started felling trees within the coup when the Forester remonstrated with them, but in vain. Further felling of the trees was done on 11-3-1952, and in the afternoon, the Ranger, Mr. D. Chatterjee, filed an application in writing at Kharagpur Police station, and the police recommended action under Section 144, Criminal P. C. Such a proceeding was drawn up on 14-3-1952, and it was made absolute on 2-4-1952. Thereafter, another police report was submitted on 25-6-1952, against Harsi Mandal and his men, and the Sub-Divisional Magistrate of Monghyr passed the order dated 27-6-1952, for drawing up proceedings against them under Section 107, Criminal P. C., and it is in respect of this order that this reference has been made.
14. Mr. P. R. Das. who appeared for Harsi Mandal and the others, has contended that there is a 'bona fide' dispute between the parties in respect of possession of the 42 acres of plot No. 182, and that such dispute ought to be decided under Section 145, Criminal P. C. On the other hand, the learned Advocate-General has contended that, all the necessary procedure provided under the Bihar Private Forests Act of 1947 having been complied with and, as a result of the notification under Section 30 of the Act published on 16-6-1948, this area having become a private protected forest, possession and control must be deemed to have passed to the State, in which case there can be no question of any dispute over possession in respect of it.
15. Mr. P. R. Das has attempted to challenge the very jurisdiction of the State to declare this piece of forest as private protected forest. He has argued that under Section 30, Forests Act of 1947, quoted above, a forest can only be constituted a private protected forest in the manner strictly provided by the Act, and under Section 14 it has been provided that, when the Provincial Government issues a notification regarding its proposal to constitute any private forest a private protected forest, a copy of such a notification has to be served on "the landlord", and that in the present case no copy of the notification was served upon the landlord, and hence the omission to make such a service goes to the root of the declaration made under Section 30 of the Act constituting a private protected forest.
16. The term "landlord" has been defined in the Act in Section 3(6) as meaning "the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forest". Mr. P. R. Das argued that in the present case, plot No. 182 having been recorded in the names of the tenure-holders in the record-of-rights, a copy of the notification issued under Section 14 of the Act should have been served upon the tenureholders, and not upon the Maharaja of Dar-bhanga. His further argument was that, although in the year 1909, by virtue of the compromise recorded in the proceeding under Section 106, Bihar Tenancy Act, the name of the Maharaja of Darbhanga was ordered to be recorded in the record-of-rights as being in khas possession of plot No. 182, this compromise was never given effect to & that the tenure-holders continued-to be in possession. In support of this argument, he stated that, in spite of the compromise, the Maharaja of Darbhanga continued to institute suits against the tenure-holders and to realise rents from them; for instance, there was a rent suit, No. 195 of 1940, which was decreed, and rent receipts have been granted by the Maharaja of Darbhanga. It has been stated in the affidavit filed on 'behalf "of the State, that, in the written statement filed by the tenure-holders as defendants in Rent Suit No. 195 of 1940, it was stated that these tenure-holders had been dispossessed of about 200 bighas of jungle lands which are in the possession of the Maharaja himself. It was, accordingly, pointed out that, since the tenure-holders in that, rent suit admitted the possession of the Maharaja and did not claim to be in possession, the compromise had been acted upon. The contention of the learned Advocate-General has been that the tenure-holders do not appear to have claimed possession after the compromise. He pointed out that, even in the title suit filed by the Maharaja against the Province of Bihar, one of the tenure-holders, Gulnbi Sah, had deposed to the possession being with the Maharaja, and then, during the course of the demarcation proceedings, another tenure-holder, Sukar Sah, had even worked as a chain man. It cannot, therefore, be said that the tenure-holders were unaware that the forest was about to be declared a private protected forest. He asserted that the Maharaja of Darbhanga was rightly considered to be the landlord upon whom the copy of the notification under Section 14 of the Act should be served.
The learned Advocate-General then contended that, even if it be assumed that the tenure-holders were the landlords upon whom the service of a copy of the notification under Section 14 should have been made, by reason of the Bihar Private Forests (Validating) Act, 1949 (Bihar Act 12 of 1949), it is no longer open to the tenure-holders or to their successors-in-interest to take up that plea. Section 2 of that Validating Aft is as follows :
"No proceeding or action taken under Section 15, 21, or 29, Bihar Private Forests Act, 1046, or under Section 15, 21 or 30, Bihar Private Forests Act, 1947, or under any other section of any of the said Acts from the respective dates of commencement of the said Acts to the date of commencement of this Act shall be deemed to be invalid or shall be called in question in any Court or proceedings whatsoever merely on the ground that a copy of the notification under Section 14 of any of the said Acts was not served on the landlord, or that there was any defect or irregularity in the service of such notification; nor shall any suit, prosecution or other legal proceeding whatsoever, lie in any Court of law against any servant of the Crown for or on account of or in respect of any such proceeding or action taken by him."
17. It is unnecessary to re-state the law, or to refer to the cases laying down the principle, that, where there is a dispute likely to cause a breach of the peace concerning land, the proper procedure is to apply the provisions of Section 145, Criminal P, C.; but the question is whether, in the circumstances of this case, it can be said that the learned Sub-Divisional Magistrate was in error in taking action against Harsi Mandal and his men under Section 107, Criminal P. C. Having regard to the sequence of events which have taken place and to which I have made reference already, I do not think that I should set aside the order passed by the learned Sub-Divisional Magistrate dated 27-6-1952, for drawing up a proceeding under Section 107, Criminal P. C. against these men. It will, of course, be open to them in the course of that proceeding to show that they ought not to be bound over under that section.
18. I would, accordingly, discharge the reference, and dismiss the application in revision.
Banerji, J.
19. I agree.