Patna High Court
Shri Durgaji And Anr. vs State Of Bihar on 24 November, 1952
Equivalent citations: AIR1953PAT65, AIR 1953 PATNA 65
JUDGMENT Imam, J.
1. This suit has been transferred from the Court of the Subordinate Judge of Palamau to this Court for trial. There are two plaintiffs--(1) Shri Shri Durgaji, a deity through her hereditary Shebait Basudeo Missir, and (2) Easudeo Missir himself. According to the plaint, the village Aloudia is non-resumable debattar property dedicated to plaintiff 1 for meeting the costs of her daily worship. The plaintiff 1 has purchased undivided one-half share, that is to say, eight annas of village Bhang which is permanent 'jagirdari.' These properties of plaintiff 1 are being managed by the 'Shebait', plaintiff 2. Plaintiff 2, in his personal capacity, owns the jagirdari villages Turhamu and Jamira, and undivided one-half share, that is to say, eight annas of the jagirdari viliage Bhang. There are jungles in these villages which are private properties of the plaintiffs, and the incomes from these jungles are spent for the worship of plaintiff 1, and plaintiff 2 also enjoys the income from the villages standing in his name in his own right.
The Bihar Forests Act, 1946 (Bihar Act 3 of 1946) was enacted by the Governor in the exercise of his powers under Section 93, Government of India Act, 1935, and the Bihar Provincial Legislature enacted the Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948) which, in effect, continued substantially the provisions of Bihar Act 3 of 1946. The defendant, viz., the State of Bihar, by notifications published in the Gazette on various dates in 1948 applied the provisions of Bihar Act 9 of 1948 to certain areas in village Aloudia, Turhamu, Jamira & Bhang, and in consequence, the defendant was interfering with the plaintiffs' right of management and control and right to receive all income from those areas and jungles in these villages so as to deprive the plaintiffs of their ownership substantially. The cause of action arose on 7-1-1948, and 14-1-1948. The suit was provisionally valued at Rs. 5,250/-, the plaintiffs reserving the right to a lull decree on accounts being taken on payment of additional court-fees, if any, be required. The following reliefs were claimed:
1. That it be declared that the defendant has no right to assume control and management under the provisions of Bihar Act 9 of 1948, or to receive any income under the provisions of Section 37, Bihar Act, 3 of 1946, or Section 40, Bihar Act, 9 of 1948, the said provisions being ultra vires and void in respect of any part of villages Aloudia, Turhamu, Jamira and Bhang.
2. That a permanent injunction be issued on the defendant preventing the defendant from interfering with the plaintiffs in managing the said jungles according to the laws and rules framed by the defendant or in receiving all and any income from any part of the said villages even though such part has been validly made a private protected forest under Bihar Act 3 of 1946, or Bihar Act 9 of 1948.
3. That the defendant be ordered to account for all the incomes from the jungles aforesaid already in his hand and to deliver the same to the plaintiffs.
4. That all costs of the suit and interest thereon be decreed in favour of the plaintiffs, against the defendant.
The defendant, the State of Bihar, filed a written statement denying the plaintiffs' allegations contending that Bihar Acts 3 of 1946 and 9 of 1948 were validly enacted, and that the provisions of these enactments were not ultra vires and that the suit was barred by Section 71, Bihar Private Forests Act, 1947. An additional written statement was filed to the effect that the plaintiffs' entire interest in all the estates and tenures including the disputed forest had vested -in the State of Bihar in consequences of Notification No. 110 LR/ZAN, dated the fi-9-1952, under Section 3, Bihar Land Reforms Act, and as such the suit had become infructuous. As a consequence of this additional written statement, an argument was made on behalf of the plaintiffs that if the main purpose of the suit that Bihar Acts 3 of 1946 and 9 of 1948 fee declared ultra vires, was defeated, at any rate the plaintiffs were entitled to recover sums of money received by the defendant from 1948 till the aforesaid notification in 1952.
2. When the suit was before the Subordinate Judge of Palamau, the following issues had been framed :
1. Is the suit undervalued and the Court-fee paid insufficient?
2. Whether the provisions of Bihar Act 3 of 1946 and Bihar Act 9 of 1948 are ultra vires, and whether it is illegal for the defendant to assume the control and management and to receive income of the property in suit?
3. Is the suit barred under Section 71, Bihar Forests Act, 1947?
4. To what relief, if any, is the plaintiff entitled?
As a result of the filing of the additional written statement by the defendant, the issues had to be recasted, and they are now as follows:
1. Is the suit undervalued and the court-fee paid insufficient?
2. Whether the provisions of Bihar Act 3 of 1946 and Bihar Act 9 of 1948 are ultra vires and whether it is illegal for the defendant to assume the control and management and to receive income of the property in suit?
3. Whether in view of Notification No. 110/ LR/ZAN, dated 6-9-1952, and Notification No. 170-LR/ZAN, dated 11-9-1952, Issue No. (2) arises? If so, can the plaintiffs recover any sum of money from the defendant for income received from forest from 7-1-1948 to 11-9-1952?
4. Whether 16 annas of village Aloudia and 8 annas of village Bhang is debattar property? If so, can the right of the plaintiffs in these villages be affected by any notification under the Land Reforms Act (Bihar Act 30 of 1950) ?
5. Is the suit barred under Section 71, Bihar Forests Act, 1947?
6. To what relief, if any, is the plaintiff: entitled?"
3. Mr. B. C. De on behalf of the plaintiffs has urged that the Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948), hereinafter to be referred to as the impugned Act, was ultra vires because it contravened the provisions of Section 299, Government of India Act, 1935, that under the provisions of the impugned Act when the plaintiffs' private forest and areas covered by the notifications made thereunder amounted to 4 acquisition of property of the plaintiffs, and as the impugned Act did not provide for compensation, the provisions of Section 299, Government of India Act, 1935, had not been complied with, and therefore, the impugned Act was ultra vires. Even if Notification No. 110-LR/ZAN, dated 6-9-1952, made under the provisions of the Bihar Land Reforms Act (Bihar Act 30 of 1950), vested the properties of the plaintiffs mentioned therein in the State, the plaintiffs were entitled to the money received by the defendant from January 1948 to Sept. 1952, because the impugned Act was ultra vires, and the defendant had wrongly taken over the properties in suit under the provisions of the impugned Act.
Mr. De further contended that as sixteen annas interest in village Aloudia and eight annas interest in village Bhang of plaintiff 1 were debattar properties belonging to the deity, they could not vest in the State of Bihar under the Bihar Land Reforms Act having regard to the provisions of that Act. Mr. De argued, in the alternative, though it is no part of the reliefs claimed under the plaint, that the impugned Act was ultra vires having regard to the observations of the learned Judges in the case of -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB). The provisions of the impugned Act imposed unreasonable restrictions upon the right of the plaintiffs to hold properties as guaranteed by Article 19 of the Constitution of India. On behalf of the defendant it had been urged that the provisions of the impugned Act did not amount to acquisition of any property of the plaintiffs. Consequently, the provisions of Section 299, Government of India Act. 1935, had not been contravened. Even though sixteen annas in village Aloadia and eight annas in village Bhang belonging to plaintiff 1 be 'debattar' property, the provisions of the Bihar Land Reforms Act did empower the State of Bihar to vest in itself such properties if such properties were notified under the provisions of that Act.
It was further contended on behalf of tbe defendant that even if the plaintiffs be allowed to raise the question which had not been raised in their plaint that the provisions of the impugned Act imposed unreasonable restrictions upon the right of the plaintiffs to hold proper-ties under Article 19 of the Constitution of India, the provisions of the impugned Act, in fact, did not impose any unreasonable restriction. The impugned Act had been enacted with respect to item No. 22 of the Provincial Legislative List in the Seventh Schedule of the said Act. With respect to the subject of item No. 22 of the said List, viz., forests, the Provincial Legislature had plenary powers of Legislation and so far as the provisions of the Government of India Act, 1935, were concerned, entirely unrestricted, save and except the provisions of Section 299 of the said Act. So far as the relief claimed for monies received by the defendant from January 1948 until September 1952, that question could only arise if the impugned Act were declared ultra vires and the defendant was found to have taken over the properties in suit unlawfully.
4. So far as Issue No. (1) is concerned, no submission was made to establish that the suit had been undervalued or that the court-fee paid on the plaint was insufficient.
5. So far as Issue No. (4) is concerned, it was conceded on behalf of the defendant that sixteen annas interest of plaintiff 1 in village Aloudia and eight annas interest of that plaintiff in village Bhang were 'debattar' properties. It was argued that having regard to the provisions of Section 4(f), Bihar Land Reforms Act, 1950, these 'debattar' properties could not vest in the State of Bihar by any notification published under that Act. Section 4(f) reads as follows :
"4(f). The Collector shall take charge of such estate or tenure and of all interests vested in the State under this section : Provided that nothing contained in this clause or in any other provision of this Act shall be deemed to authorise the Collector to take charge of any institution, religious or secular, of any trust or any building connected therewith or to interfere with the right of a trustee to apply the trust money to the objects of the trust."
The proviso, no doubt, prohibits the Collector from taking charge of any institution, religious or secular, of any trust or any building connected therewith or to interfere with the right of a trustee to apply the trust money to the objects of the trust. On the face of it, this proviso does not prohibit the vesting of trust properties other than those mentioned in the proviso in the State. The prohibition upon the Collector not to interfere with the right of a trustee to apply the trust money to the objects of the trust does not, on the face of it, prohibit the vesting of trust properties, other than those mentioned in the proviso, in the State. In order to appreciate as to what can vest in the State, it is necessary to refer to other provisions of the said Act. The word "trust" has been defined in Section 2(s) to include any express,' or constructive trust created or existing for a public purpose of a charitable or religious nature and a Hindu, Muslim, Christian, Buddhist or any other religious or charitable endowment. There can be no question that 'debattar' properties would come within this definition. The word "proprietor" however, has also been defined in Section 2(o) of the said Act to mean a person holding in trust or owning for his own benefit an estate or part of an estate, and includes the heirs and successors-in-interest of a proprietor and, where a proprietor is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator. It will be seen, therefore, that the word "proprietor", according to this definition, includes a person holding an estate in trust. Section 3 of the aforesaid Act states that the State Government may, from time to time, by notification, declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, havev passed to and become vested in the State. The Bihar Land Reforms Act, 1950 now forms a part of the Constitution of India as a result of an amendment of the Constitution. Section 3 of the Act therefore, permits the vesting in the State the estates or tenures of a proprietor or tenure-holder under a notification. Having regard to the definition of the word "proprietor", the estate of a person holding in trust can, therefore, vest in the State by a notification under Section 3. Section 24 of the said Act provides for rates of compensation, and Sub-clauses (3) and (4) of the said section have to be kept in mind. Sub-clause (3) is as follows:
"(3) In the case where in the opinion of the Compensation Officer the net income or any portion of the net income in respect of any estate or tenure held under trust or other legal obligation has been dedicated exclusively to charitable or religious purposes without any reservation of pecuniary benefit to any individual, the compensation payable in respect of such income or such portion thereof shall, instead of being assessed under Clause (1), be assessed as a perpetual annuity equal to such net income or such portion thereof, as the case may be:
Explanation -- The salary, remuneration or any allowance payable to a Mutawalli in the case of a wakf or to a trustee in any other case including a shebait of a Hindu religious trust not exceeding 15 per centum of the income dedicated exclusively to charitable or religious purposes shall not be deemed to be a reservation of pecuniary benefit to any individual within the meaning of this clause."
Clause (4) is as follows :
"(4). In the case where an estate or tenure or any part thereof is held in trust other than a trust exclusively dedicated for religious or charitable purposes and the beneficiaries thereof are members of a joint Hindu family, the compensation payable to each beneficiary shall be determined on the basis of his share of the net income in respect of such estate or tenure or part thereof, as the case may be,"
It will be seen, therefore, from the provisions of Section 24 that the rate of compensation is indicated in the case of trust properties. In my opinion, having regard to the provisions of the said Act, there is no substance in the argument that the 'debattar' properties in this suit could not vest in the State of Bihar under any provision of the said Act. This Issue is accordingly decided against the plaintiffs.
6. Now I come to the two most important issues in the case, namely, Issue Nos. 2 and 3. The Bihar Private Forests Act, 1946, stated in its preamble that the object of the Act was the conservation of forests which are not vested in the Crown, now the State, and the impugned Act stated in its preamble that it was expedient to continue the Bihar Private Forests Act, 1946, after 1-4-1948, with certain modifications. It will thus be seen that the Bihar Private Forests Act of 1946 and the impugned Act had as their objective the conservation of forests which were not vested in the State. It is necessary to refer to some of the provisions of the impugned Act in order to ascertain whether the provisions of Section 299, Government of India Act, 1935 had in any way, been contravened. Chapter I of the impugned Act deals with preliminary matters including definitions as given in Section 3. Chapter II contains provisions regulating the exercise of rights in forests. Chapter III deals with private protected forests and the procedure to be followed by the Government in declaring any private forest to be a private protected forest. Chapter IV deals with the control and managing of private forests and powers of Forest Officers. Chapter V provides for penalties and procedure. Chapter VI deals with cattle trespass. Chapter VII refers to Forest Officers, and Chapter VIII deals with miscellaneous matters including the power in the State Government to make rules under the Act. Chapter II certainly contains no provisions which, in any way, can be regarded as (sic) acquisition of private forests. It merely sets out generally provisions relating to the exercise of rights in such forests. None of its provisions, as far as I can see, can possibly be interpreted to mean that unreasonable restrictions are imposed upon the owners of such forests in the exercise of their rights over them. Chapter III contains important provisions whereby the State Government is authorised to declare any private forest to be a private protected forest. Section 13 states that if the State Government are satisfied at any time that it is necessary in the public interest to apply the provisions of this Chapter, to any private forest, they may constitute such forest a private protected forest. Section 14 states that whenever it is proposed by the State Government 'to constitute any private forest a private protected forest, the State Government shall issue a notification to that effect. It is not disputed that in the present case a notification in accordance with the provisions of Section 14 had at one time been issued by the State Government.
Section 15 provides for the Collector hearing any objections presented to him. Clause (3) of the said section empowers the State Government to issue a notification declaring that it has been decided to constitute such area a private protected forest, if no objection under Section 14 has been presented, or if one has been presented, after it has been finally disposed of. Section 16 states that when a notification has been issued under Clause (3) of Section 15, the Forest Settlement Officer shall publish in the local vernacular in every town and village in the neighbourhood of the forest comprised therein, a proclamation specifying, as nearly as possible, the situation and limits of the proposed forest, explaining the consequences which will ensue when such forest is constituted a private protected forest, and fixing a period of not less than three months from the date of such proclamation and requiring every person claiming any right mentioned in Clause (3) of Section 15 (other than landlords' rights) within such period either to present to the Forest Settlement Officer a written notice specifying or to appear before him and state the nature of such right and the amount and particulars of the compensation claimed in respect thereof.
Section 17 provides for an enquiry by the Forest Settlement Officer with reference to all statements made in Section 16. Section 18 deals with the powers of the Forest Settlement Officer. Section 19 is as follows:
"Right (other than landlords' right) in respect of which no claim has been preferred under Section 16 and of the existence of which no knowledge has been acquired by inquiry under Section 17, shall ba extinguished, unless, before the notification under Section 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 16."
It will thus be seen that under Section 19 while certain rights are extinguished in the circumstances mentioned in the section, the landlord's rights are specifically preserved. Section 20 prohibits further contracts after the issue of a notification under Section 14, but does permit the landlord of the forest specified in such notification with the permission of the State Government of any authority appointed by it in this behalf, to enter into any contract with any person conferring on such person the right to cut, collect or remove timber or other torest produce or trees in or from such forest or to reclaim any part of the Forest for the purposes of cultivation or otherwise; that is to say even after a notification has been issued under Section 14 if the landlord obtains the permission of the State Government or any authority appointed" by it in this behalf he may enter into a contract with reference to matters mentioned in the section. In my opinion, this section indicates that the landlord's right in his forest is recognised, the restriction being that he must obtain the previous sanction of the State Government or any authority appointed by it in this behalf when he wishes to enter into any contract with any person with reference to matters mentioned in the section.
It is unnecessary for the purposes of deciding the questions raised by the plaintiffs to refer to the provisions of this Chapter contained in Sections 21 to 29. Section 30 provides for a notification declaring a forest to be protected forest after the expiry of the period fixed under Section 16 and the claims made thereunder and Section 22 have been disposed of by the Forest Settlement Officer, and if any such claims have been made, the period limited by Section 27 for appealing from the orders passed on such claims has elapsed, and all appeals presented within such period have been disposed of by the appellate officer. It will thus be seen that from the moment a notification has been issued under Section 14 by the State Government, a procedure is set out until the notification in the official gazette is issued under Section 30 declaring a private forest to be a private protected forest. Section 32, in my opinion, is of some importance, and it reads as follows:
"No right of any description shall be acquired in or over a private protected Forest except by succession or under a grant or contract in writing made by or on behalf of the Provincial Government or some person in whom such right was vested when the notification under Section 30 was issued."
In my opinion this section specifically provides the acquiring of a right over a private protected forest by succession or under a grant or contract in writing made by or on behalf of the State Government or some person in whom such right was vested when the notification under Section 30 was issued; that is to say, the ownership in the private forest is not destroyed by any acquisition of the forest by the State Government. A fair reading of this section militates against the argument set up by the plaintiffs that in substance the provisions of the impugned Act amount to acquisition of property. Section 33(1) states:
"Notwithstanding anything contained in Section 32, no right, admitted by an order passed under Section 24 shall be alienated by way of grant, sale lease, mortgage or otherwise, without the sanction of the Provincial Government:
Provided that when any such right is ap-pendant to any land or house, it may be sold or otherwise alienated with such land or house."
Here again, while the right in the forest is recognised, a restriction is imposed upon alienation in any one of the ways mentioned in the section without the sanction of the State Government but such alienation could be made with the sanction of the State Government. The proviso, however, makes it clear that there is no restriction on the right when it is appendant to any land or house. Chapter IV concerns the control and management of every private protected forest and that the same shall vest in the State Government. Section 38 requires the, Forest Officer appointed for any private protected forest, subject to the requirements of any working plan prepared for the forest, to allow the landlord of such forest to cut, collect or remove therefrom such quantity of trees, timber or other forest produce as may, in the opinion of the Forest officer, be required for his reasonable agricultural or domestic needs and not exceeding the maximum quantity to be fixed by the Conservator of Forest. Working plan has been defined in Section 3 of the Act to mean a written scheme for the management and treatment of a forest prepared by the prescribed authority. Section 38, therefore, subject to the working plan, recognises the right of the landlord of a forest to cut, collect or remove therefrom trees, timber or other forest produce up to a certain quantity. The right to cut, collect or remove trees, timber or other forest produce may foe restricted, but it is there, and the Forest officer could not refuse to the landlord such a right provided the working plan for the Forest and the maximum quantity to be fixed by the Conservator of Forests permitted it.
Section 39 authorises" the Collector, after consulting the Forest officer, to permit the landlord of a private protected forest to erect embankments at suitable places in such forest at his own cost, if he desires to do so, for the purpose of irrigating land beyond the boundaries of the said forest. The expression "the landlord of a private protected forest" clearly indicates, to my mind, that the ownership in such a forest is recognised but the exercise of any right ensuing from such ownership must be with the Collector's permission. Section 41 provides for the maintenance of a revenue and expenditure account with reference to the working and management of every private protected forest, and an abstract of the yearly account has to be submitted to the landlord of such Forest. Here again, the expression "the landlord of such forest" clearly indicates that the ownership in the forest is recognised by the impugned Act and that the landlord shall be supplied with an abstract of the yearly account concerning the working and management of his forest. Section 42 states :
"42(1) The Provincial Government shall, during the period of their control and management of any private protected forest, pay, at prescribed intervals, to "the landlord of the forest"--
(a) an allowance calculated on the total area of the forest as determined by the Conservator of forest at the rate of one anna per acre per annum or such higher rate not exceeding one anna and six pies per acre per annum as the Provincial Government may, from time to time, by general or special order, determine; and (b) the net profits, if any, accruing from the working and management of the forest:
Provided that in cases where "the owner" has after the publication of a notification under Sections 14 and 21 continued to sell without authority timber or other forest produce, the Provincial Government may by special order forfeit the allowance for a specified period."
The rest of the provisions of the section need not be referred to. This section speaks of payment of certain money to "the landlord of the forest" and "the owner" as stated in the proviso. Here again, the ownership of the forest is recognised and Section 42 specifically provides for the payment of certain sums of money by way of an allowance, and of the net profits, if any, accruing from the working and management of the forest. It seems to me that these provisions clearly indicate recognition of the right of the landlord of the forest and of payment to him of an allowance as well as the net profits, if any, accruing from the working and management of the forest during the period a landlord's forest was under the control and management of the State Government. The provisions of Section 42, to my mind, are inconsistent with the theory of acquisition. Section 47 reads:
"47(1) The Provincial Government may, at any time by notification, declare that the provisions of this Chapter shall cease to apply to a private protected forest from such date as may be specified in the notification and that, with effect from that date, the forest shall cease to be a private protected forest.
(2) If on the date of the publication of a notification under Sub-section (1) the balance-sheet of the revenue and expenditure account prepared under Section 41 shows that any amount is due to the Provincial Government in respect of the management and working of such forest, such amount shall be written off."
7. It is clear from this section that the State Government may, at any time, release a private forest from their control and management by a notification and that such forest would from that date cease to be a private protected forest, that is to say, the control and management of the forest would again vest in the owner. Clause (2) of the section is significant, in that it the balance-sheet of the revenue and expenditure account prepared under Section 41 shows that any amount is due to the State Government in respect of the management and working of the forest, such amount shall be written off. That is to say, when the management and control of the forest is again in the hands of the landlord the landlord is not liable for any money due to the State Government in respect of the management and working of the forest as shown by the balance sheet prepared under Section 41. In Chapter VIII, the provisions of Section 78 are important.
"Nothing in this Act shall affect any right to minerals lying in or under any private protected forest and the Provincial Government shall make adequate provisions for exercise of this right by the person or persons legally entitled to this right in accordance with any rule made by the Provincial Government In this behalf."
This section makes it quite clear that in spite of a forest being constituted a private protected forest, the provisions of the impugned Act shall not affect any right to minerals lying in or under any private protected forest, and the State Government is bound to make adequate provisions for exercise of such right by the person or persons legally entitled to it. The landlord of a forest which has been constituted a private protected forest under the impugned Act has his rights to the minerals lying in the forest or under it preserved by this section. I have set out above the various sections which, in my opinion, are relevant to the question of Mr. De on behalf of the plaintiffs as to whether the provisions of the impugned Act amounted to acquisition without compensation of property, and thus contravened the provisions of Section 299 Government of India Act, 1935, and consequently, the impugned Act was ultra vires.
8. I think, it is well settled that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. It has to be seen, therefore, as to whether the plaintiffs have discharged the onus which is upon them. The pith and substance of the legislation under the impugned Act is undoubtedly with respect to forest which is item No. 22 of the Provincial List of the Government of India Act, 1935, 7th schedule. Although a forest must necessarily be on land, it cannot be said that because item No. 21 of the aforesaid list is with respect of land, the provisions of the impugned Act relate to item No. 21 also. There may be some overlapping between item No. 22 and item No. 21 in the sense that a forest must necessarily be on land, but the List itself clearly recognises that forests are something distinct from land. Even if there should be some overlapping, the principle has always been that a Court must look to the pith and substance of the legislation in order to determine under which List of the Government of India Act, 1935, and in respect to which item it comes. I think there can be no question, having regard to the entire provisions of the impugned Act, that it is with respect to forests, although private forests. The legislation under the impugned Act, therefore, was within the Provincial List of the Government of India Act, 1935, and the Provincial Legislature with reference to the items in the Provincial List has plenary powers of legislation as Sovereign as that of Parliament. I am satisfied, therefore, that the impugned Act was not beyond the powers of the Provincial Legislature when it passed it. I have had to make a reference to this because Mr. De's argument relies upon certain observations made by the learned Judges in the decision of this Court in -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB). In that case this Court was considering the constitutionality of the Bihar State Management of Estates and Tenures Act, 1949. Shearer, J. after having examined the provisions of the said Act came to the following conclusion:
"But I have also no doubt that the subject-matter of the impugned Act is not to be found in any of the items of the Legislative lists and that in consequence, neither the Central nor the Provincial Legislature had jurisdiction over that subject-matter unless and until a notification had been issued by the Governor General under Section 104, Government of India Act. Nor, in my opinion, has the Legislature of the State of Bihar jurisdiction to enact such law now, as under Article 248 of the Constitution, residuary powers of legislation are vested in Parliament."
9. It will thus be seen that according to the interpretation which his Lordship gave to the provisions of the Bihar State Management of Estates and Tenures Act, 1949, the subject-matter of 'legislation under that Act was not to be found in any of the items of the Legislative List. Shearer, J. went on, however, to express the opinion that, if the aforesaid Act at the time it was enacted was a valid law, he would have been compelled to hold that on the coming into force of the Constitution it became void because the Act imposed restrictions of the most far-reaching & drastic kind on the power of proprietors and tenure-holders to deal with their property and it could not fairly be said that these restrictions were either reasonable or imposed in the interest of the general public. As to whether the impugned Act in the present case is covered by the observations of Shearer J. will be considered later on. Sinha, J. when considering the constitutionality of the Bihar State Management of Estates and Tenures Act, 1949, observed:
"The provisions of item 21 of List II do not include the powers to take over management of property of such persons as do not come within any of the disabilities imposed by the Court of Wards Act or the Chota Nagpur Encumbered Estates Act as indicated above. My considered opinion, therefore, is that the impugned Act is beyond the powers of the Provincial Legislature as contained in the Government of India Act of 1935, as amended in 1947 as a result of the Indian Independence Act."
Sinha, J. also seemed to think that the provisions of the said Act imposed unreasonable restrictions, and thus were void because of Sub-clause (f) of Clause (1) of Article 19 of the Constitution. After quoting Clause (5) of Article 19 of the Constitution, his Lordship observed:
"But can it be said that the provisions of the impugned Act impose "reasonable restrictions on those guaranteed rights? The restrictions imposed by the impugned Act on the right of private property cannot be said to be reasonable, inasmuch as they leave the owner of the property practically without any rights during the period of State Management without conferring any corresponding benefits upon him. Another essential ingredient in Sub-clause (5) is that the restrictions should be in the interest of the general public or for the protection of the interests of any scheduled tribe. The impugned Act does not pretend that it is for the protection of the interests of any scheduled tribe. But are the restrictions in the interests of the general public? I have already discussed at some length, the question whether the impugned Act was intended for a public purpose, and come to the conclusion that it was not so intended. If I am right in that conclusion, it is manifest that the restrictions cannot be said to be in the interests of the general public. Hence, the provisions of Clause (5) of Article 19 do not save the impugned Act from becoming invalid under the general provisions in Article 19(1) (f)."
Das, J. while holding the said Act to amount to acquisition of property and then not for a public purpose was of the opinion that it was ultra vires as there was no provision for compensation. He, however, was further of the opinion that assuming that the Act was valid on the date when it was made, it clearly infringed the fundamental right guaranteed to a citizen under Article 19(1) (f) of the Constitution of India, because it imposed restrictions which were neither reasonable nor in the interest of the general public; consequently, the Act was not saved by Clause (5) of Article 19 of the Constitution of India. On the question as to whether the provisions of the Bihar State Management of Estates and Tenure Act, 1949, amounted to acquisition, Shearer, J. observed:
"There has been much controversy at the Bar as to whether or not, what is proposed to be done under the impugned Act, amounts to the acquisition of the plaintiff's property. Mr. Das strongly relied on a decision of the High Court of Australia. 'The Minister of State for the Army v. Dalziel', 68 Com-W LR 261 and, adopting the words of Rich, J. contended that, once the management of his client's estate had been taken over, nothing would be left to him but 'the empty husk of ownership'. I find myself quite unable to accept this view. The plaintiff is to remain the owner of his estate and is alone to be competent to sell or make a gift of it, and he is to continue to derive a considerable, although, perhaps, a much reduced, income from it."
Sinha, J. observed :
"As already pointed out, the impugned Act is a mixture of restraints on the power of alienation of land by a proprietor or a tenure-holder, a suspension of his rights of management, without acquisition of any rights by the Government to be exercised for the benefit of the public or for the benefit of any particular section of the public. I will presently show that the pith and substance of the Act in question is not acquisition of any rights in property by the Government."
Das, J., however, was of the opinion that on principle no distinction could be made between possession for a temporary period and acquisition for all time, and expressed his agreement with the view with the majority of Judges in -- 'the Minister of State for the Army v. Dalziel', 68 Com-W L R 261, and disagreement with the opinion of Latham C. J. in that case. He also disagreed with the view of Bhagwati, J. in -- 'Bug Tain v. Collector of Bombay', AIR 1946 Bom 216, where the view of Latham C. J. was accepted by Bhagwati J. I have at this stage referred extensively to the observations of the learned Judges in the case of -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB) so that I may not have to repeat them later on in the judgment. It is, however, clear that so far as Shearer J. and Sinha J. were concerned, they were of the opinion, on a consideration of the provisions of the Bihar State Management of Estates and Tenures Act, 1949, that its provisions did not come under any of the items of the Lists mentioned in the Seventh Schedule of the Government of India Act, 1935, and, therefore, the Act was ultra vires. Their Lordships also held the Act to be ultra vires on other grounds, but both of them agreed that the provisions of that Act did not amount to acquisition. The observations of Shearer and Sinha JJ. to the effect that the provisions of that Act were not covered by any of the items in the Lists of Schedule 7, Government of India Act, 1935, have no bearing in the present case because the impugned Act is a piece of legislation with reference to forests, although private forests. In my opinion, therefore, the impugned Act cannot be attacked on the ground that its provisions do not relate to any of the items mentioned in the Provincial List in Schedule 7, Government of India Act, 1935. The pith and substance of the impugned Act as I have already said,' is with reference to forests.
10. So far as the question as to whether the provisions of the impugned Act, on a fair interpretation of them, amount to acquisition of property is concerned, certainly the observations of Shearer and Sinha JJ. in the case referred to, do not support the contention of Mr. De. There can be no doubt that the opinion of Das J. lends support to the contention of Mr. De. So far as the majority opinion of the learned Judges of this Court in the case referred to is concerned, it was certainly against the contention of Mr. De. In the case of -- Charan-jit Lal v. Union of India', AIR 1951 S C 41, Mukherjee, J. made the following observations which, I may respectfully say, set out with clarity as to what acquisition means. His Lordship observed:
"It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property."
Kania C. J. observed:
"I have read the judgment prepared by Mukherjea J. In respect of the arguments advanced to challenge the validity of the impugned Act under Articles 31 and 19, Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add."
Fazl Ali J. observed:
"In this view, the only question which has to be answered is whether the petitioner has succeeded in showing that there has been an infringement of his rights as a share-holder under Articles 31 and 19 (1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J. that I do not wish to add anything to what he has said in his judgment, and all that is necessary for me to say is that I adopt his conclusions, without committing myself to the acceptance of all his reasonings."
Das J. observed:
"On the contrary, the language of Clause (1) of Article 31 is wider than that of Clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think Clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be deprived of his property, provided he is so deprived by authority of law No question of compensation arises under Clause (1). The effect of Clause (2) is that only certain kinds of deprivation of property, namely, those brought about by acquisition or taking possession of it will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by authority of law. In this case, as already stated, although the share-holder has been deprived of certain rights, such deprivation has been by authority of law passed by a competent legislative authority. This deprivation having been brought about otherwise than by acquisition or taking possession of such rights, no question of compensation can arise, and, therefore, there can be no question of the infraction of fundamental rights under Article 31(2)."
11. I have set out various provisions of the impugned Act, and on a fair reading of the provisions of the impugned Act I am definitely of the opinion that its provisions do not amount to acquisition of property. Section 299, Government of India Act, 1935, denies the power to the Dominion Legislature or a Provincial Legislature to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either, fixes the amount of the compensation, or specifies the principles on which, and the manner in. which, it is to be determined. If for a moment it is held that the provisions of the impugned Act do not amount to acquisition of property, the question of acquisition for public purposes does not arise, nor payment of compensation for the properties acquired. In my opinion, therefore, the provisions of the impugned Act, in no way, contravene the provisions of Section 299, Government of India Act, 1935. The impugned Act, therefore, cannot be declared to be ultra vires on that ground.
12. The impugned Act at the time it was enacted was, in no way, inconsistent with the provisions of the Government of India Act, 1935. It remains, however, to consider the argument of Mr. De that its provisions are so unreasonable as to offend against the provisions of Article 19 (1) (f) of the Constitution of India. The object of the impugned Act was obviously conservation of forests; Section 13 of Chapter III empowers the State Government, when satisfied that it is necessary in the public interest to apply the provisions of that Chapter to any private forest, to constitute such forest a private protected forest. That such a notification was issued by the Government is not disputed. Conservation of forests is, in my opinion, a matter of public interest. The subject of forests is an important administrative item in almost every civilised Government. Denuding of forests by indiscriminate and unscientific cutting of trees can become a public menace. Culturable lands adjoining forests may be badly affected by such cutting. Disappearance of a forest in such localities may destroy the cultu-rable character of land in its neighbourhood, or diminish its productive value. Instances are not unknown and which, I think, a Court may take judicial notice where large schemes of afforestation of a desert or waste land are undertaken by a Government in order to protect lands already under cultivation. It follows therefore, that the owner of a forest has a duty towards others as to how he manages his forest and looks after it. Exigencies of war had at times led to vast cutting of timber from forests to supply the war needs of a nation; but the areas of forests so denuded require reafforestation and that by scientific methods. I cannot read any of the provisions of the impugned Act to be unreasonable where a private forest is constituted a private protected forest under its provisions in the interests of the public. Mere management and control cannot be regarded as unreasonable restrictions upon the right of the owner of the forest to hold it as his property as guaranteed "by Article 19(1)(f) of the Constitution of India. In -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB), Shearer J. expressed the opinion :
"If the object of the impugned Act had merely been to confer power on the executive to take over the management of estates and tenures in order to prevent waste or the disappearance of village papers or the like during some comparatively short interval, which was expected to elapse before the estates or tenures could be acquired permanently by the State, the Act might, possibly have been supported."
In my opinion, to take over control and management of anyone's property does mean, during, the period of such control and management, restrictions upon the owner to exercise his rights over such property, but such control or management may become necessary for reasons of State and in the interest of the public and, possibly, even in the interest of the owner. While forests may be owned by private individuals the very nature of the subject-matter requires the holder of such property to hold it without prejudice to the interests of the public. In this connection, it may be useful to refer to the observations of Field J. in -- 'Barbier v. Connolly', (1885) 113 US 27 and the observations-of Professor Willis as quoted by Fazl All J. in the case of -- 'Charanjit Lal v. Union of India', AIR 1951 S C 41. Field J. observed :
"The regulation may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good."
Professor Willis observed :
"There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, for in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing' this the Courts may consider matters of common knowledge, matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such proof it must, be shown that there is no reasonable basis for the classification. (Page 580 of Constitutional Law, 1st Edition, by Prof. Willis)."
Section 13 of the impugned Act specifically states that the notification which the State Government may issue under its provisions must be when the State Government is satisfied that it is in the interest of the public to do so Obviously, it is for the State Government to be satisfied and not for the Courts to say as to whether the satisfaction of the State Government was a reasonable one or not. The impugn-ed Act had as its objective the public good, and if in the interest of the public it became necessary to take over control and management by the State of an individual's forest, it cannot be said, in my opinion, that the impugned Act imposed unreasonable restrictions upon the right of an owner of the forest to hold it as guaranteed by Article 19 (1) (f) of the Constitution of India. In my opinion, the impugned Act can, in no way, be said to be ultra vires, and it was validly enacted by the State Legislature. These issues are accordingly decided, against the plaintiffs.
13. With reference to Issue (5), having held, that the impugned Act is not ultra vires, obviously Section 71 is a bar to the present suit.
14. So far as Issue (6) is concerned, having regard to what I have held in the case, the plaintiffs are entitled to no relief.
15. I would accordingly dismiss the suit but without costs.
Rai, J.
16. This suit was originally filed in the Court of the Subordinate Judge of Palamau as title suit No. 24 of 1949. It was subsequently transferred to this Court and was numbered as title suit No. 6 of 1952.
17. The plaintiffs have filed this suit for a declaration that the State of Bihar has no right to assume control and management of the forest lands in suit under the provisions of Section 34, Bihar Act, 9 of 1948, or to receive any income therefrom in accordance with the provisions of Section 40 of the said Act as both the provisions were ultra vires and void. The plaintiffs further prayed for issue of permanent injunction on the defendant preventing it from interfering with the plaintiffs in managing the jungle lands of the villages in suit. Another relief for accounting and reimbursement to the plaintiffs of all the income from the jungle lands in suit received by the defendant was asked for.
18. The case of the plaintiffs as pleaded in the plaint may shortly be stated as follows. The entire village, Aloudia thana No. 272 is a non-resumable devottar property dedicated to plaintiff 1 for meeting the expenses of her daily worship and rajbhog and it was so recorded during the cadastral survey. Plaintiff 1 subsequently purchased an undivided half share of village Bhang, thana No. 198, district Palamau, which is a permanent Jagirdari interest. Both the above mentioned properties of plaintiff 1 are under the management of plaintiff 2 who is the shebait. Plaintiff 2 is the owner of the remaining, undivided half interest in the permanent jagirdari village Bhang and the entire interest in village Turhamu, thana No. 271 and village Zamira, thana No. 281. All the above mentioned villages contained jungle lands. The income of the jungle lands of village Aloudia and half share of village Bhang is spent for the worship, etc., of plaintiff 1, while the income of the jungle lands over the remaining villages is appropriated by plaintiff 2 in his own right. The defendant is interfering with the plaintiffs' right of management and control of the jungle lands on the basis of notifications issued in accordance with the provisions of Bihar Act, 9 oil 1948, which it had no right to enact. Sections 3(2), 34 and 40 of Bihar Act, 9 of 1948, and other provisions and rules of the Act dependent on those sections were not enacted in the interest of the general public and have become void after the Constitution came into force. The cause of action arose on 7-1-1948 and 14-1-1948.
19. The suit was contested by the defendant, The written statement filed by it contained amongst others the following pleas. The plaintiff has got no cause of action to bring the present suit. Bihar Act, 9 of 1948, is valid and no provision of it is ultra vires the provisions of the Government of India Act, 1935 or the Constitution of India. Bihar Act, 9 of 1948, was enacted in the interest of the general public for conservation and development of forests. Under the Act only management and control of the jungle lands had been assumed by the defendant but the plaintiffs are still the owners. The defendant is not liable to accounting and that its possession is lawful. The suit is barred under the provisions of Section 71, Bihar Forests Act of 1947.
20. During the pendency of the suit before this Court, the State of Bihar issued notification notifying that the interest of the plaintiffs in the jagirdari tenures of the villages in suit had vested in it since the date of the notification in accordance with the provisions of the Bihar Land Reforms Act, 1950. After this notification the State of Bihar filed an additional written statement in which it was pleaded that the suit had become infructuous as the entire interest in all estates and tenures including the disputed forest owned by the plaintiffs had vested in the defendant after the above mentioned notification.
21. After filing of the additional written statement the issues were recasted. (After setting out the recasted issues as given, in para 2 His Lordship proceeded).
FINDINGS
22. Issues 2, 3 and 4 : These issues are interconnected and they will be dealt with together.
23. The parties adduced no evidence. The case was argued on the pleadings.
24. Mr. B. C. De who appears for the plaintiffs urged that the provisions of Sections 34 and 40, Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948) were ultra vires the Government of India Act, 1935, and had been rendered void after the enforcement of the Constitution, as both the provisions empowered the defendant to acquire the property of the plaintiff's without compensation which is prohibited by Section 299 (2), Government of India Act, 1935, and by Article 31 (2) of the Constitution of India. Sections 34 and 40, Bihar Act, 9 of 1948 run thus:
"34. The control and management of every private protected forest shall vest in the Provincial Government."
"40. The Provincial Government shall receive all revenues accruing from the working and, management of a private protected forest and. shall pay the whole expenditure incurred in the working and management of such forest, and the landlord of such forest or any other person shall not be entitled to make any objection to any expenditure that the Provincial Government may consider it necessary to incur on such working and management."
In support of his contention Mr. De relied on. the decision of a Special Bench of this Court in. the case of -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB). He relied on the following observations of Das J. in connection with the validity or otherwise of some of the provisions of Bihar State Management of Estates and Tenures Act, 21 of 1949 :
"Looking at the impugned Act from the point of view of Section 299, Government of India Act. 1935, as I am doing now, it seems to me that the impugned Act cannot be justified in the way Mr. Lalnarain Sinha has sought to do it, by holding that it provides merely for possession of land and not acquisition. In my opinion the impugned Act is a piece of con-fiscatory legislation which deprives a proprietor or tenure-holder of several of his important rights in land without providing for compensation to him. The principle that anincrease of the amount of land revenue payable for estates does not involve acquisition of right in or over immovable property laid down in -- 'Lal Singh v. Central Provinces and Berar', 1944-6 FCR 284 : AIR 1944 FG 62 has no application here. In that case, Spens, C. J. pointed out that the word 'acquisition' implies that there must be an actual transference of and it must be possible to indicate some person or body to whom is or are transferred, the land or rights in land. In the case before us, important rights in land are transferred by the impugned Act to the State Government or the Manager named in the vesting order. Therefore, the impugned Act is hit by Section 299, and was made in contravention of the provisions of that section."
The other two learned Judges, namely, Shearer and Sinha JJ. took a different view on the question of acquisition. On this point Shearer J. observed thus:
"There has been much controversy at the Bar as to whether or not, what is proposed to be done under the impugned Act, amounts to the acquisition of the plaintiff's property. Mr. Das strongly relied on a decision of the High Court of Australia, -- 'The Minister of State for the Army v. Dalziel', 68 Com-W L R 261, and, adopting the words of Rich J., contended that, once the management of his clients' estate had been taken over, nothing would be left to him but 'the empty husk of ownership'. I find myself quite unable to accept this view. The plaintiff is to remain the owner of his estate and is alone to be competent to sell or make a gift of it, and he is to continue to derive a considerable, although, perhaps, a much reduced, income from it."
On the same point Sinha J. observed thus:
''As already pointed out, the impugned Act is a mixture of restraints on the power of alienation of land by a proprietor or a tenure-holder, a suspension of his rights of management, without acquisition of any rights by the Government to be exercised for the benefit of the public or for the benefit of any particular section of the public. I will presently show that the pith and substance of the Act in question is not acquisition of any rights in property by the Government."
25. I am afraid the majority view in that case does not support the contention of Mr. De that the assumption of control and management of forest lands contemplated by Sections 34 and 40, Bihar Act, 9 of 1948, amounts to 'acquisition' without compensation within the meaning of Section 299, Government of India Act, 1935. I am inclined to accept the argument of the Government Pleader that the Act in question is not a confiscatory one.
26. It was next urged on behalf of the plaintiffs that the impugned Act is really a piece of legislation about 'land' mentioned in item No. "21 and not in respect of 'forest' mentioned in item No. 22 of the Provincial Legislative List of Schedule 7 of the Government of India Act, 1935. 'This argument was based on the definition of 'forest' as given in Section 3(2) of the Act which runs thus :
" 'forest' means any land which the Provincial Government may, by notification, declare to be a forest for the purposes of this Act and shall be deemed to include any land which is entered as forest or jungle or jungle-jhari or described by any synonymous term in any record of rights finally published under any law for the time being in force unless it is proved that such entry in respect of the land is incorrect;"
Item Nos. 21 and 22 of the Provincial Legislative List are in the following words :
"21. Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; courts of wards, encumbered and attached estates; treasure trove. 22. Forests."
It was further argued on behalf of the plaintiffs that if the impugned Act be held to be a piece of legislation about 'land' then the assumption of control and management of the forest lands is an unreasonable restriction of the right of the plaintiffs to hold and dispose of property guaranteed under Article 19(f), Constitution of India, and as such Sections 34 and 40 of the impugned Act became void by virtue of Article 13 of the Constitution, after it came into force.
27. In reply to this argument Mr. Lalnarain Sinha for the defendant contended that Bihar Act, 9 of 1948, deals, in pith and substance, with 'forest' included in item No. 22 and not with 'land' included in item No. 21 of the Provincial Legislative List of Schedule 7, Government of India Act, 1935. He submitted that subjects may overlap but one has to see what is the pith and substance of a particular Act. In support of his contention Mr. Lalnarain Sinha relied on the following passage from the judgment of the Judicial Committee in the case of -- 'Prafulla Kumar v. Bank of Commerce Ltd., Khulna', AIR 1947 P C 60:
"Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with."
I accept the argument of Mr. Lalnarain Sinha and hold that Bihar Act, 9 of 1948, deals with 'forest' included in item No. 22 of the Legislative List of Schedule 7, Government of India Act, 1935.
28. It was further submitted on behalf of the defendant that the impugned Act was passed for the preservation of forests in the interest of the general public. According to Mr. Lalnarain Sinha the usefulness of trees for the prosperity of a country is recognized on all hands so much so that observance of Van Mahotsava (festival of planting trees) is being organised yearly by the State Governments all over India. He urged that judicial notice can be taken of this fact. He further argued that the provisions of Article 19(5) of the Constitution saves the impugned Act from becoming unconstitutional as it has been enacted in the interest of general public. Article 19(5) of the Constitution runs thus:
"(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the 'general public or for the protection of the interests of any Scheduled Tribe."
I agree with Mr. Lalnarain Sinha and hold that the impugned Act is not hit by Article 13 of the Constitution.
29. Mr. De next submitted that Section 4(f), Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950) was a bar to the defendant taking over the estate of plaintiff 1 in accordance with the provisions of Bihar Act, 30 of 1950. Section 4(f) runs thus:
"4. Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under Sub-section (1) of Section 3, the fol lowing consequences shall ensue, namely:
* * * (f) The Collector shall take charge of such estate or tenure and of all interests vested in the State under this section:
provided that nothing contained in this clause or in any other provision of this Act shall be deemed to authorise the Collector to take charge of any institution, religious or secular of any trust or any building connected therewith or to interfere with the right of a trustee to apply the 'trust money' to the objects of the trust."
According to him, taking charge of the tenure belonging to plaintiff 1 amounted to interfering with the right of plaintiff 2, who is a shebait, to apply the trust money to the objects of the trust. I am afraid, I am not inclined to accept this argument of Mr. De. 'Trust money' should not be understood to be a synonym of immovable properties included in a trust. The vesting of the estate in the defendant in accordance with the provisions of the Bihar Land Reforms Act, 1950, does not amount to interference with the right of a trustee to apply the trust money in his or her hands to the objects of the trust. In a recent decision of their Lordships of the Supreme Court in the case of -- 'the State of Bihar v. Kameshwar Singh', AIR 1952 S C 252 Mahajan, J. observed as follows:
"Mr. Chakravarty who appeared in three cases Nos. 326, 327 and 344 of 1951, urged that as regards trust properties, the Bihar legisla- ture had no power to acquire them without payment of full compensation as certain educational and charitable institutions would thereby be seriously affected. He was, however, unable to point out how the Bihar Legislature had no power to acquire trust properties."
30. Thus Mr. De has failed to point out anything from which it can be said that Sections 34 and 40, Bihar Act, 9 of 1948, are ultra vires the Government of India Act, 1935, or have become void after the enforcement of the Constitution of India.
31. In this view of the matter, these issues are decided in favour of the defendant
32. Issues 1 and 5 : These issues were not pressed at the time of hearing.
33. Issue 6 : The plaintiff is not entitled to any relief.
34. The result is that the suit fails and is dismissed but without costs.