# C. V. K. Rao v. Dtntu Bhaskara Rao

- **Citation:** [1964] 8 S.C.R. 158
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Criminal Revision Nos. 9, 8, 16, 22, 21, 32, 23, 18, 20, 24 and 17 of 1960
- **Bench:** M. Hidayatullah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-v-k-rao-v-dtntu-bhaskara-rao-3244
- **Pages:** 21

## Headnote

Forest Act-"Reserved forest"-Tripura Act replaced by Indian Forest
Act-No preliminaries prescribed under Tripura
Act-Notification
under it whether can he deemed to be under Indian Forest ArtTripura Act and Indian Forest Act, object and purpose-Corresponding provisions-Indian Forest Act, 1927
(Act 16 of 19271,
S S.C.R.
SUPREME COURT REPORTS
159
Ch:J. II and IV, Tripura Forest Act, 1257 (1297?) T.E. (Tripura
Act 2 of 1251 T.E. 1297?) s. 5.
The respondents in these appeals were convicted by Magistrates for
offiences under s. 26(1) of the Indian Forest Act.
Appeals were filed
to the Sessions Judge, where the respondents raised the contention that
the forest areas in which the alleged offences were committed were not
"Reserve forests" within the meaning of the Act.
For establishing that
these "reserves" were "reserved forests" within the
Indian Act,
the
appellant relied on two circumstances.
First, there 'vas a Forest Act
promulgated by the Ruler of Triptira .State (Act 2 of 1257 T.E. 1297
T.E. ?) which contained provisions somewhat analogous to those contained in the Indian Act. Next, s. 5 of the Tripura Act enabled the
State Government to declare by notifications published in the State
Gazette, the boundaries of the forest areas to be governed by the State
Act. Such notifications were published by which the boundaries of the
reserves of the forests in question \Vere defined. The appellant urged that
the Tripura Act was replaced by the Indian Forest Act by reason of legis4
lative provisions upon the merger of the native State of Tripura with the
Dominion of India, and that the notifications under the Tripura Act which
were continued in force by these same provisions rendered these re'5ervcs
"Reserved forests" under the Indian Forest Act. The Sessions Judge held
that by reason of these notifications the forest areas became .. reserved
forests" under the relevant provisions of the Indian Forest Act and dis·
missed the appeals. Thereafter, revisions were filed before the Judicial
Commissioner, who tliffering from the Sessions Judge held that they were
not "reserved forests" and directed the acquittal of the respondents. On
ap:Jeal by special leave:
HELD: (i) From the prov1s1ons of the Indian Forest Ac.t, 1t wouid
be seen that it is the notification under s. 20 after complying with the
procedure prescribed by the other sections of Chapter II commencing
with s. 4 that constitutes a forest area "a reserved forest'' within the Act.
(ii) The fact that under the Tripura Act there \\'ere no preliminaries
prescribed before a forest could be notified as a reserved forest does nor
detract from such a notification being a notification under the Indian
Forest Act.
(iii) In substance the object and purpose of the Tripura Act was the
protection of particular trees-the seven types of trees specified in s. 4.
The notification under s. 5 is for the purpose of constituting areas where
these types would be protected.
The penal provisions enacted are for
ensuring the protection of these trees.
'iv) Tne prime purpose of Chapter II of the Indian Forest Act is the
constitution of reserved forests in which ( !) all private rights within the
reserved area are completely eliminated by their being bought up where
these arc ascertained to exist by payment of compensation, (2) the entire
area being devoted ·to siviculture, every tree in the forest being protected
1964
Union of India
v.
.A.bdul Jalil
1964
Union of Illd;.
••
Abdul Jalil
160
SUPREME COURT REPORTS
[1g64]
from lnJUfY and within the scope of the penal provision contained in
s. 26.
In other wvords, the reservation here is to the "forest ar-...a" as
such and not tbe protection of the particular specified trees or species of
trec,, in such a forest.
(v) The object of Ch. IV of the Indian Forest Act is the protection
of particular trees and the setting apart of particular area1 as protected
forests for the purpose of ensuring the gtowth and maintenance of such
trees. The object sought to be achieved by t

## Text

_Characters 0–39,817 of 45,330. This is a partial read: ask again with offset=39817 for what follows._

1964
C. V. K. Rao
v.
Dtntu Bhaskara
Rao
Bidayatullah J.
1964
May 5
158
SUPREME COURT REPORTS
serves a notice on him stating the quantity pre-empted and
the time within which the supply is to be made. The clause,
however, does not make it obligatory on Government to
prC-empt any quantity of mineral or at all.
There is no
obligation to buy nor is there any compulsion ·on the pan
ot the lessee to sell unless asked.
In these circumstances,
the clause does no -more than to keep intact a right of the
Government to obtain the minerals or their products as
and when Government requires
in preference
to others.
Till Government makes up its mind and serves a notice
there is no obligation to make any deliveries and even
though the word 'subsists' is a word of wide import, it
cannot be said that a contract for the sale of goods subsists
because a contract requires an offer and its acceptance and
is not a mere reservation of a right.
Taking the most liberal view of the matter it is clear that
cl. 21 did not bring into being a contract for the supply of
goods. All that it did was to reserve to the Government
the right to prior purchase of the minerals raised by the
respondent.
The rese11;ation of such rights docs not
amount to a contract for the supply of goods which can be
said to subsist between the parties. The High Court was,
therefore, right in reversing the decision of the Election
Tribunal. The appeal fails and is dismissed with costs.
Appeal dismissed.
UNION OF INDIA
v.
ABDUL JALIL AND ORS.
(M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.)
Forest Act-"Reserved forest"-Tripura Act replaced by Indian Forest
Act-No preliminaries prescribed under Tripura
Act-Notification
under it whether can he deemed to be under Indian Forest ArtTripura Act and Indian Forest Act, object and purpose-Corresponding provisions-Indian Forest Act, 1927
(Act 16 of 19271,
S S.C.R.
SUPREME COURT REPORTS
159
Ch:J. II and IV, Tripura Forest Act, 1257 (1297?) T.E. (Tripura
Act 2 of 1251 T.E. 1297?) s. 5.
The respondents in these appeals were convicted by Magistrates for
offiences under s. 26(1) of the Indian Forest Act.
Appeals were filed
to the Sessions Judge, where the respondents raised the contention that
the forest areas in which the alleged offences were committed were not
"Reserve forests" within the meaning of the Act.
For establishing that
these "reserves" were "reserved forests" within the
Indian Act,
the
appellant relied on two circumstances.
First, there 'vas a Forest Act
promulgated by the Ruler of Triptira .State (Act 2 of 1257 T.E. 1297
T.E. ?) which contained provisions somewhat analogous to those contained in the Indian Act. Next, s. 5 of the Tripura Act enabled the
State Government to declare by notifications published in the State
Gazette, the boundaries of the forest areas to be governed by the State
Act. Such notifications were published by which the boundaries of the
reserves of the forests in question \Vere defined. The appellant urged that
the Tripura Act was replaced by the Indian Forest Act by reason of legis4
lative provisions upon the merger of the native State of Tripura with the
Dominion of India, and that the notifications under the Tripura Act which
were continued in force by these same provisions rendered these re'5ervcs
"Reserved forests" under the Indian Forest Act. The Sessions Judge held
that by reason of these notifications the forest areas became .. reserved
forests" under the relevant provisions of the Indian Forest Act and dis·
missed the appeals. Thereafter, revisions were filed before the Judicial
Commissioner, who tliffering from the Sessions Judge held that they were
not "reserved forests" and directed the acquittal of the respondents. On
ap:Jeal by special leave:
HELD: (i) From the prov1s1ons of the Indian Forest Ac.t, 1t wouid
be seen that it is the notification under s. 20 after complying with the
procedure prescribed by the other sections of Chapter II commencing
with s. 4 that constitutes a forest area "a reserved forest'' within the Act.
(ii) The fact that under the Tripura Act there \\'ere no preliminaries
prescribed before a forest could be notified as a reserved forest does nor
detract from such a notification being a notification under the Indian
Forest Act.
(iii) In substance the object and purpose of the Tripura Act was the
protection of particular trees-the seven types of trees specified in s. 4.
The notification under s. 5 is for the purpose of constituting areas where
these types would be protected.
The penal provisions enacted are for
ensuring the protection of these trees.
'iv) Tne prime purpose of Chapter II of the Indian Forest Act is the
constitution of reserved forests in which ( !) all private rights within the
reserved area are completely eliminated by their being bought up where
these arc ascertained to exist by payment of compensation, (2) the entire
area being devoted ·to siviculture, every tree in the forest being protected
1964
Union of India
v.
.A.bdul Jalil
1964
Union of Illd;.
••
Abdul Jalil
160
SUPREME COURT REPORTS
[1g64]
from lnJUfY and within the scope of the penal provision contained in
s. 26.
In other wvords, the reservation here is to the "forest ar-...a" as
such and not tbe protection of the particular specified trees or species of
trec,, in such a forest.
(v) The object of Ch. IV of the Indian Forest Act is the protection
of particular trees and the setting apart of particular area1 as protected
forests for the purpose of ensuring the gtowth and maintenance of such
trees. The object sought to be achieved by the reservation in Ch. IV is
exactly similar to that which is sought to be achieved by the Tripura Act.
Only t.h..:- Tript:ra Act makes the cutting of protected trees even outside
a for~:.t ~tn cff!ncc, whereas there is no such provision under the Indian
Forest A.ct.
(vi) ~fhe notification under s. S of the Tripura Act would constitute
the area in question only a.'i a "protected" for~t under Ch. IV of tbie
lndi~;i Forest Act and not as a "reserved" forest under s. 20 contained
in Ch. !l of the Act.
(vii) The Judicial Commissioner was right in considering that the
provis!on in the !;idian Fori!st Act "corresponding .. to the Tripura Forest
Act under which the notifications fixing the boundaries of these forests
in question \Yere issued was that as regards "a protected forest" under
Ch. IV and not "reserved forest" within s. 20 contained in Ch. Il.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
~OS. 39, 49 of 1962.
Appeals by special leave from the judgment and order
dated August 26, 1960 of the Court of Judicial Commissioner of Tripura at Agartala in Criminal Revision Nos. 9, 8,
16, 22, 21, 32, 23, 18, 20, 24 and 17 of 1960.
C. K. Daphtary, Attorney-General, D. N. Mukerjee and
R. H. Dhebar, for the appellant (in all the appeals).
P. K. Chauerjee, for the respondents (in Appeals Nos. 39,
42, 23, 46. 43 and 49 of 1962).
May 5, 1964. The Judgment of the Court was delivered
by:
Ayyan1ar I.
AYYANGAR, J.-The respondents in these several appeals
were prosecuted before Magistrates in Tripura for offences
under s. 26 (I) of the Indian Forest Act, 1927 and were
convicted and sentenced to terms of imprisonment and fine.
Their appeals to ,the learned Sessions Judge, Tripura having
been dismissed, they preferred Criminal Revision Petitions
to the Judicial Coou-niMiOD.er, Tripura. The learned Judicial
8 S.C.R.
SUPREME COURT REPORTS
161
Commissioner allowed their revisions by a common judgment
and directed their acquittal. From these orders of acquittal
the Union of India has filed these appeals by virtue of
special leave granted by this Court under Art. 136 of the
Constitution.
Before proceeding to narrate the facts ·which have led to
these appeals it is necessary to mention that three of these
11 appeals----Criminal Appeals 40, 41 and 45 of 1962 have
become infructuous.
The notices issued to the respondents
in Appeals 40 and 45 of 1962 of the filing of the appeals
could not be served on them as it was reported that they
had left for Pakistan.
The appeals could not accordingly
prosecuted. In regard to Criminal Appeal 41 of. 1962 it
is reported that the accused died pending the hearing of the
appeals and hence the appeal has abated. We are, therefore, concerned only with the other 8 appeals.
The material clauses of s. 26 (1) of the Indian Forest
Act, 1927 for contravention of which the respondents in the
several appeals were prosecuted read:
"26. ( 1) Any person who-
(a) makes any fresh clearing prohibited by section 5.
or who, in a reserved forest-
( d) trespasses or pastures cattle, or permits cattle to trespass:
(e)
(f)
(g)
(h)
51 S.C.-11.
fells, girdles, lops, taps or burns any tree or
strips off the bark or leaves from. or otherwise damages, the same:
clears or breaks up any land for cultivation
or any other purpose;
shall be punishable with imprisonment for a
term which may extend to six months,
or
with fine which may extend to five hundred
rupees, or with both, in addition to such com1964
Unio11 of lndi'-
v,
Abdul lalil
Ayya11gar /.
1964
Union of India
v.
Abdul Jalil
Ayyangar 1.
162
SUPREME COURT REPORTS
pensation for damage done to the forest as
the convicting Court may direct to be paid."
The magistrate convicted some of the accused respondents
of offences under els. (a) and ( d) others of offences under
els. (d) & (h).
'
It is common ground that in order to constitute an
offence under s. 26 (I ) the acts specified in the clauses of
the sections should be committed in an area
which is a.
"reserved forest" under the Act. We might point out that if
the area concerned was a reserve forest, the guilt of the
respondents would practically be made out and their conviction by the Magistrates, confirmed by the Sessions Judge,
Tripura might have to be upheld. The principal, if not the
sole question for consideration in the appeals, however, i;
whether the forest area where the respondents were held to
have committed the acts alleged against them was such a
"reserve forest".
Before, however, dealing with that question, it would be
convenient to set out very briefly the facts which have given
rise to these prosecutions. The forests wherein the several
respondents are stated to have committed the offences set
out in the clauses of s.26 ( 1) of the Act quoted above are
comprised in three distinct areas in the former Indian State
of Tripura. These three areas are known," respectively, as
the Garjichhera reserve, Chandrapur reserve and the North
Sonamura reserve. In April, 1958 an officer of the Forest
Department went on circuit duty in these forest areas and
found that the several accused had cleared the forests,
reclaimed some land and had dug tanks for the purpose of
cultivation and had made homesteads there. On . the averment that these acts on the part of the several accused who
are respondents in the several appeals constituted offences
under s. 26(1 )(a) and (h) and in some cases under s.
26(1)(a), (d) and (h) and in still some others under s.
26(1 )(d), (f) and (h), the accused were produced in the
courts of the Magistrates having jurisdiction. The accused
admitted that they had made homesteads and were living in
structures constructed at the places where they were found
and the only defence then raised was that they were entitled
8 S.C.R.
SUPREME COURT REPORTS
to do so under a claim of jote rights on the lands. No evidence was, however, produced by any of the accused to
substantiate their claim to trespass on and plough-up and
cultivate and erect· homesteads on the lands on which they
were found squatting and the learned Magistrates holding
that while the prosecution had made out their case,
the
accused had not established their defence, found tnc accused
guilty and passed appropriate sentences on them. Appeals
were filed against these convictions by the several accused
to the learned Sessions Judge of Tripura. At that stage the
accused raised the contention that the forest areas comprised
in the Garjichhara,
Chandrapur
and
North
Sonapurn
reserves were not "Reserve forests" within the meaning of
the Act. For establishing that these three "reserves" were
"reserved forests" within the Indian Act, the
prosecution
relied on two circumstances. First, there was a Forest Act
promulgated by the Ruler of the Tripura State (Act 2 of
1257 TE 1297 T.E.?) which contained provisions somewhat analogous to those contained in the Indian Act. Next,
s. 5 of the Tripura Act enabled the State Government te>
declare by notifications published in the Stule Gazette, the
boundaries of the forest areas to be governed by the State
Act.
There were three such notifications published in the
Tripura State Gazette in 1346 and 1349 T.E. corresponding
to 1936 and 1938 by which the boundaries of the three
reserves of the Garjichhera, Chandrapnr and North Sonamura
forests were defined.
The contention urged by the prosecution was that the Tripura Act was replaced by the Indian
Forest Act by reason of legislative provisions to which wrc:
shall advert later and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these three reserves "Reserved
forests"
under the Indian Forest Act. We shall have to sot out the
terms of the Act as well as of the notifications later but it i>
sufficient to mention at this stage that the places where thQ
respondents cleared the forests and built their homeste.li!s
were admittedly within one or other of these three reserves.
The respondents in Appeals 39, 43, 47 and 49 had trespassed into the Garjichhera re.~erve, while those concerned in
appeals 42, 46 and 48 had trespassed into the Chandrapur
reserve, and the respondent in appeal 44 was found to have
Union of India
v.
Abdul Jalil
Ayyangar J.
196'
Union of lntiia
V.
11.oaut 1a1n
Ayyangar I.
SUPREME COURT REPORTS
[rg64]
~ommitted a similar offence in respect of the forest described
as the North Sonamura reserve. When these three notifications were produced before the learned Sessions Judae he
0
held that by reason of these notifications the three forest
areas became "reserved forests" under the relevant provisions of the Indian Forest Act and he therefore upheld the
order of the Magistrate convicting the accused and dismissed the appeals of the several accused. Thereafter revisions
were filed to the Judicial Commissioner,
Tripura.
The
same question of law viz., whether having regard to the
terms and provisions of the Tripura Forest Act, the notifications setting out the boundaries of the three reserves constituted these "reserves" "reserve forests" within the Indian
Forest Act, was again debated before the learned Judicial
Commissioner. the learned Judicial Commissioner differing
from the Sessions Judge held that they were not, and on this
finding, directed the acquittal of the several accused.
It is
the correctness of this conclusion of the learned
Judicial
Commissioner that is challenged in these appeals.
It would be seen from the above narrative that the question for consideration is whether the areas where the offences
are said to haye been committed
were
within
"reserve
forests" within the meaning of the Indian Forest Act.
On the terminology employed by the Indian Forest Act,
"reserve forests" are those areas of forest land which are
constituted as "reserve forests" under Ch. II of the Act.
Chapter II comprises ss. 3 to 27 and is headed "Of Reserved Forests". Section 3 empowers the State Government tn
constitute "any forest land or waste land which is the prow..rty of Government or over which the Government has
proprietary rights or to the whole or in part of the forest
produce to which the Government is entitled, a
reserved
forest in the manner hereinafter provided". Section 4 requires
that the State Government, when it has decided to constitute any land as a "reserved forest", should notify by the
issue of a notification in the Official Gazette specifying the
situation, limits, etc. of that land and declare its decision to
constitute the land as "a reserved forest". Section 6 makes
8 S.C.R.
SUPREME COURT REPORTS
165
provision for a proclamation of the notification issued under
s. 4 by publication in several places, so that persons who
might be affected by the issue of the notification may prefer
objections thereto. Section 7 directs an enquiry by a Forest
Settlement Officer of all claims made by persons in response
to the publication of the notification under s. 6. Section 9
provides generally for the extinction of rights in respect of
which no claim has been preferred under s. 6. Where claims
are preferred and are found to be made out s. 11 provides
for the acquisition of such rights or of lands in respect of
which the rights are claimed in the manner provided by the
Land Acquisition Act.
The next succeeding provisions of
the Act enable appeals to be filed against the orders and for
their hearing by the appellate authorities.
These are followed by s. 20 under which, after the stage of enquiry and
decisions on claims made is completed, the State Government is directed to issue a notification in the Official Gazette
"specifying definitely, according to boundary-marks erected
or otherwise the limits of the forest which is to be reserved,
and declaring the same to be .reserved from a date fixed by
the notification. Sub-section (2) of the section enacts:
"20.(2) From the date so fixed such
forest sl1all
be deemed to be a reserved forest."
Section 21 provides for the translation of the notification and
its publication in every town or village in the neighbourhood
of the forest.
The next relevant provision is s. 26 which
prohibits the doing of certain acts in "a reserved forest" and
provides for punishment for these contraventions the material
parts of which we have already set out.
From these provisions it would be seen that it is the notification under s. 20
after complying with the procedure prescribed by the other
sections of the Chapter commencing with s. 4 that constitutes a forest area "a reserved forest" within the Act.
The forests in the former State of Tripura were not declared "reserved forests" under a notification issued uncier s.
20 of the Indian Forest Act after following the procedun
prescribed by Ch. II. We have, therefore, to examine tne
steps by which this result is said to have been reached. We
have already referred to the existence of the Tripura Forest
1964
Union of India
v.
Abdul Jalll
Ayyangar J.
1964
u,..,,,. of India
v.
Abdul lalil
Ayyangar J.
166
SUPREME COURT REPORTS
Act 1257 (1297?) T.E. enacted by the Ruler of Tripura
under which certain provisions were made for the preservation of Forest areas in the State and the notifications issued
thereunder constituting the three areas as "reserve forests"
for the purpose of that Act.
It would be necessary to examine the details of these provisions, but this we shall defer
till we complete the narration of the constitutional changes
which brought the State of Tripura into the Indian Union
and the legislation which accompanied and accomplished
these changes. Tripura was a native State and the ruler by
a merger agreement with the Governor-General of
India
merged his State with the Dominion in the year 1949.
By
para 5 of the Tripura Administration Order, 1949 issued on
October 15, 1949 under the powers conferred in that behalf
by the Extra Provincial Jurisdiction Act, 194 7 all the laws
in force in the State of Tripura immediately before the c0mmencement of the said Order were continued in force until
they were repealed or amended by a competent legislature
or authority. Then came the Constitution which was operative from January 26, 1950 and under it Tripura became
a Part C State of the Union of India.
By virtue of Art.
372 of the Constitution ihe laws in force in the territory
of India which would have included the Tripura Forest Act
in so far as it applied to the territory of the former Tripura
State, were continued in force until repealed or amended by
competent legislation.
Next, came the Part C States (Law<)
Act, 1950 enacted by Parliament.
By its s. 3 the Acts and
Ordinances specified in the Schedule to the Merged States
(Laws) Act, 1949 were extended to and directed "to be in
force in the State of Tripura ...... as they were genernlly
m force in the territories to which tney extended immediately
rn:fore the commencement of that Act".
One of the enactments specified in the Schedule to the Merge a States (Laws)
Act, 1949 (Act LIX of 1949) was the Indian Forest Act,
1927.
The Indian Forest Act was thus extended to
the
T ripura State.
Section 4 of the Part C States (Laws) Act,
1~50 :provided that "any law which immediately before the
r,0nunencement of the Act (April 15, 1950) was in force
m anv of the St1t~s which included Tripura and corresponded
to a~ Act extended to that State by the Act was therehy
repeale,l''.
The operation of the repeal was subject to two
8 S.C.R
SUPREME COURT lZEPORTS
167
provisos and it is the second of these provisos that calls for
construction in these appeals. This proviso ran:
Provided further that, subject to the preceding proviso, anything done or any action taken, including any appointment or
delegation
made,
notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme
framed, certificate, patent, permit
or licence
granted or registration effected, under such law
shall be deemed to have been done or taken
under section 2 or, as the case may be, under the
corresponding provision of the Act or Ordinance
as now extended to the State by section 3, and
shall continue in force accordingly, unless and
until superseded by anything done or any action
taken under the said section 2 or, as the case
may be, under the said Act or Ordinance."
Shortly stated, the question for consideration in these
appeals is whether as a result of the operation of ss. 3 and
4 of the Part C States (Laws) Act read in the light of the
proviso above-quoted the three reserved forests which were
notified under the Tripura Act of 1257 (T.E.) could be deemed to be "reserved forests" under Ch. II of the Indian
Forest Act, 1927.
Stopping here, it would be convenient to notice a few matters. In the first place, when the Indian Forest Act, 1927
was extended to the State of Tripura in 1950 it would have
been open to Government to have taken steps to constitute
"reserved
forests"
within
the
State
by
following
the procedure prescribed by Ch. II to which we
have
already adverted.
But this was not done and the Government seem to have proceeded on the basis that the areas
notified as "reserved forests" under the Tripura Act were
"reserved forests" under the Indian Forest Act.
Next, it is
common ground that the Tripura Act which was continued
by the Tripura Administration Order, 1949 did not survive
1964
Union of India
v.
Abdul Jali/
Ayyangar J.
1964
Union of India
v.
Abdul Jalil
.tyysngar J.
I.68
SUPREME COURT REPORTS
the Part C States (Laws) Act, 1950 because the Indian Forest Act being "a corresponding law" to the Tripura Forest
Act stood repealed by the operation of s. 4 of that enactment.
Besides, the provisions of the Tripura Forest Act
under which the notifications constituting these forests
as
"reserved forests" were issued were under the proviso to s. 4
"deemed to have been done under the corresponding provision of the Act as now extended to the State by s. 3". The
position, however, is that the Indian Forest Act whose extension to the Tripura area effected the repeal of the Tripura
Act, contains provisions of two distinct types or kinds for
the exercise of control over forests and forest areas and the
question then arises as to which of the provisions of the
Indian Act, "correspond" to those of the Tripura Act, to
enable one to say that the notifications under the latter Act
should be deemed to have been issued. On a consideration
of the relevant provisions of the Tripura Forest Act the
learned Judicial Commissioner held that at the most the corresponding provision of the Indian Forest Act to which the
Tripura notification could be related was as a "protected
forest" under Ch. IV of the Indian Forest Act and not a
"reserved forest" under Ch. II of the Act. He,
therefore,
decided that as the offence for which the accused were being
prosecuted was one under s. 26 the accused could not be
held guilty since there was no legal or effective notification
of the forest area as a "reserved forest" within s. 20 of the
Indian Forest Act and accordingly directed the acquittal of
the accused. The appeals challenge the correctness of this.
last conclusion.
The principal submission of
the
learned
AttomeyGeneral who appeared for the Union of India in support of
the appeals was directed to establish that the notification
constituting the three forests as reser ;ed forests under the
repealed Tripura Forest Act II of 1257 (1297?) T.E. must
be deemed to have been taken under Ch. II of the Indian
Forest Act, 1927 which, it was contended, was the provision
corresponding to the repealed Tripura Act. It is the validity of this submission that now calls for
consideration.
Before entering on a discussion of this question we might
dispose of a minor consideration which might be urged in
8 S.C.R.
SUPREME COURT REPORTS
order to show that the notification under the Tripura Act
could not be deemed to be a notification under s. 20 of the
Indian Forest Act. One of the submissions under this head,
and this was one 0f the points that appears to have· appealed
to the learned Judicial Commissioner, was that Ch. II of the
Indian Forest Act prescribes an elaborate procedure which
is mandatory and is required to be complied with, before
any land 'could be constituted into a "reserved forest" under
that Act.
The Tripura Act admittedly does not make provision for any such procedure being followed before an area
is notified as "a reserved forest" or is constituted into one.
The argument based on this was that in the absence of identity between the procedural requirements of the two Acts,
a notification under the repealed Act could not be deemed
to be one under a "corresponding provision" of the Act
extended to the territory, the emphasis being on the words
"corresponding provision".
We are unable to accept the
correctness of this submission.
The scheme of the Part C States (Laws) Act is this.
In the first place, by reason of s. 3 certain enactments are
extended to these State5. If there is no law in that State
which was in force on the date of the extension of a particular enactment under s. 3' which is in pari materia and
covers the same field as the law that is extended, s. 4 does
not come into play and consequently there is no question of
the repeal of any pre-existing law. If such were the case
the law in force in the native State of Tripura would have
first continued by reason of the provision contained in s. 5
of the Administration of Tripura (Laws) Order, 1949, already referred to which was promulgated on October, 15,
1949 !ind later by reason of Art. 372 of the Constitution.
To the extent to which there was no repeal by virtue of s. 4
of the Part C States (Laws) Act, 1950 the Tripura law
would have continued in force. It is only on the basis that
the Indian Forest Act whose operation was extended to that
territory by s. 3 was "a corresponding law" that the Tripura_
Act can stand repealed.
For the purpose of effecting the
repeal under s. 4 the only consideration is whether any
existing law of that State "corresponded" to a law which
was extended by reason of s. 3.
19U
Union o/ Indi.'
v.
Abdul Jalil
Ayyangar I.·
1964
Union of India
v.
Abdul Jalil
\
A.yyangar J.
SUPREME COURT REPORTS
As stand earlier, it is common ground that the Tripura
Forest Act "corresponded': to the Indian Forest Act, 1927
and that the former therefore stood repealed on the extension
to Tripura of the latter enactment. If then the extension of
the Indian Forest Act to the State effected a repeal of the
Tripura Forest Act we have next to consider whether the
notification under the Tripura Act could be deemed to be a
notification under "the corresponding provision"
of
the
Indian Forest Act. For that purpose the preliminaries to the
notification or the procedure which must precede a notification are not of any relevance but only whether the particular notification could be held to be under a corresponding
provision under the extended enactment, viz., the
Indian
Forest Act. If the notifications had been issued after complying with the formalities prescribed by the State law and
they are kept alive by the proviso to s. 4, the notifications
would necessarily have to be deemed to have validly been
made under the latter Act.
Judged by this test it appears
to us that the fact that under the Tripura law there were no
preliminaries prescribed before a forest could be notified
as a reserved forest does not detract from such a notification
being a notification under the Indian Forest Act, 1927.
We have next to consider whether the notification under
the Tripura Act could be deemed to be a notification under
Ch. II or under s. 20 of the Indian Forest Act for that is the
basis upon which the entire prosecution case rests. For this
purpose it is necessary to analyse the provisions of the Tripura Act and also examine the corresponding provisions of
the Indian Forest Act. We sha!J first take up the Tripura
Act.
Its preamble, after reciting that some clas:,es of trees
are regarded as protected ones from times immemorial, goes
on to state that it was expedient to consolidate the law with
a view to bring order in the matter of the supervision of the
protected trees and also to place the same on a sound footing.
This would appear to indicate that the Act was designed for the protection of particular trees as distinguished
from the reservation of an area as a forest for the purpose of
protecting all the trees within that forest. We shall in ~ue
course have to refer to the provisions of Ch. IV of the Indian
8 S.C.R
SUPREME COURT REPORTS
Forest Act headed "Of Protected Forests" under which also
the aim of the law is to afford protection to certain trees in
particular areas.
To revert to the Tripura Act, its s.
3
provides for the repeal of the earlier laws and saves only
rules or customs not inconsistent with the Act.
Section 4 is
one of the key provisions of the Act and under it are specified seven classes of trees which shall be deemed to be protected within the independent State of Tripura.
The Act is
divided into seven chapters of which the first one is headed
"Of protection of Rakshita Bana" which, as stated earlier,
has bem transla1ed as "Protected Forests". Section 5 under
which the three notifications to which we have already referred were issued reads:
"The boundaries of 'Rakshita Bana ', shall be fixed
and publication of the same shall be made in
all police stations, offices, markets, ports and
other public places within this independent
State".
Section 6 runs:
"No person shall be entitled to carry out any 'Jhum'
cultivation (shifting cultivation) within half a
mile radius of a Rakshita Bana".
Sections 9 to 11 specify the acts which are prohibited in the
notified forest areas.
These enact:
"9. No person shall set fire to the hills in such a
manner which may cause damage to a Rakshita
Bana in any way".
"10. No person shall enter into a Rakshita Bana carrying fire."
"11. No person shall enter into a Rakshita Bana
carrying axe or other weapons which may be
used for cutting trees without permission."
Chapter II with which s. 12 opens is headed "Of Gradual
Development of Rakshita Banas." The relevant sections of
this Chapter are ss. 12 to 17 and they read:
"12. In each year protected trees like sal etc. and
other valuable trees shall be grown either by
sowing seeds or otherwise.
1964
Union of lnditl
v.
Abdul Jalil
Ayyangar ],
1964
Union ••I India
'"
Abdu.I Jo/ii
AyyaJJgar J.
172
SUPREME COURT REPORTS
[1964]
"13. In order to give effect to the provisions of section 12, suitable sites will be selected at regular
intervals after taking sanction for the same."
"14. If there are other trees in a Rakshita Bana than
those mentioned in section 4, and if it is considered expedient that such other trees are harmful to the growth of the protected trees, then
such trees shall be cut."
"15. In case any old tree referred tt> in section 4
is cut, then a new tree shall be grown in its
place."
"16. No person on any account shall be allowed to
cut
any tree within the reserved forest in a
manner which might cause any damage ti:J the
block."
"17. If there be dense growth of any specific type
of tree as mentioned in section 4 and if such
growth is mutually detrimental to the general
growth of the trees then to facilitate growth of
the species some may be cut according to necessity."
Chapter III i~ headed "Of Penalties" and of the sections
comprised in it is sufficient to refer to s. 18 under which
any person kindling fire in a forest is made punishable with
imprisonment, s. 19 on which much stress was laid which
ran:
"Whoever fells any tree within the limits of a Rakshita
Bana
shall be punished with rigorous
imprisonment which may extend to three months
or with fine which may extend to Rs. SOOJor with both".
and s. 20 which ran:
"20. Any person who cuts any tree
as
specified
under section 4 outside the limits of a reserved
forest shall be punished with rigorous imprisonment which may extend to two months or with
fine which may extend to Rs. 200/ - or with
both."
8 S.C.R.
SUPREME COURT REPORTS
173
1n this connection it'is necessary to point out that under s.20
the cutting of the protected trees specified in s. 4 is made an
offence even if the cutting were to take place beyond the
limits of the forest notified under s. 5. The only point of
difference brought in ~y the cutting being within the bounJaries of the forest is that in that case the punishment is
heavier.
The other chapters relate to the officials and the manner
in which they should perform their duties and have not much
relevance for the purposes of these appeals.
From the above summary of the provisions it would be
seen that in substance the object and purpose of the Tripurn
Act was the protection of particular trees-the seven types
of trees specified in s.4.
The notification uncl 'r s. 5 is for
the purpose of constituting areas where these types of trees
would be protected.
The penal provisions enacted are for
ensuring the protection of these trees.
No
doubt, s. 16
enacts a ban against the cutting of any tree within a forest
so as to cause damage to any block and s. 19 penalises the
cntting of any tree within the area of a forest,
but it is
obvious that in the context of the other provisions of the
Act and the purpose which the enactment is
intended to
subserve, these prohibitions under penal
sanctions
were
designed primarily and essentially to ensure more effective
protection to the trees specified in s.4.
Now, let us see whether Ch. IT of the Indian Forest Act
r.ould be said to be a provision which corresponds to the
Tripura Act, so that the notification under s. 5 of the latter
enactment could be deemed to be a notification under Ch. II
or s. 20 of the India~ Forest Act. We have set out the
several provisions of Ch. IT and their object.
The prime
purpose of that Chapter is the constitution of reserved
forests in which ( 1) all private rights within the reserved
uea are completely eliminated by their being bought up
where these are ascertained to exist by payment of compen·
sation, (2) the entire area being devoted
to siviculture,
every tree in the forest being protected from injury am!
within the scope of the penal provision contained in s. 26
In other words, the reservation here is to the "forest area"
as such and not the protection of particular specified trees
or species of trees in such a forest.
1964
Union of India
Y.
Abdul Jalil
.-t yyrutgar J.
1964
Union of lndio
...
Abdul Joli!
Ayyongor J.
174
SUPREME COURT REPORTS
[rg64J
In this connection some point was sought to be made
from the terms of the notification under s. 5 of the Tripura
Act by which the boundaries of the several forests were
specified.
The three notifications were substantially in the
same form and it is, therefore, sufficient to set out the one
setting out the boundaries of the Garjichhera reserve. The
relevant conditions are:
"2. Jhum cultivation will not be permissible in this
forest area.
3. The land previously settled within this forest area
shall remain valid.
Plough cultivation will be
permissible in that area.
4. The fallow Taluka land falling within .this area
shall be deemed as
not being
within
this
reserve.
5. Until further orders, cutting of all kinds of trees
are prohibited within this Reserve.
Cutting and
export of unclassified forest products ....... .
will be p~rmissible.
6. Except in the settled area, grazing of all kinds of
animals elsewhere within this Reserve ·will be
prohibited.
7. All kind of hunting within this Reserve is prohibited."
In regard to these conditions stress was laid principally on
condition no. 5 under which all cutting of trees was forbidden.
The provision here appears to be a reproduction of s.
16 of the Act and to have no futther or more extended
operation. We are therefore unable to accept the submission that by reason of this clause the area which is notified
as the reserved forest is constituted a reserved forest of the
same type as under Ch. II of the Indian Forest Act. In the
first place, as the notification was issued under the Tripura
Act it would be reasonable to construe it with reference to
the prolu"bition against cutting of trees contained in the Act
itself and we have already adverted to the terms of s. 16
which we have held was designed for the purpose of protecting the trees set out in s. 4. But that apart, clause 5
;
\
'
8 S.C.R
SUPREME COURT REPORTS
175
itself pennits the cutting oi certain forest produce which it
was evidently thought would not interfere with the functioning of the forest as a place for the protection of the protected trees.
The other two notifications do not permit the
cutting of BambOo etc.
without Gove~-nment permit, bllt
this in our opinion makes no difference.
If one now turns to the provisions of Ch. IV of the
Indian Forest Act the correspondence between the Tripura
Act and the provisions of Ch. IV would become clear.
Section 30, corresponding to s. 4 of the Tripura Act, in
Ch. Il enables the State Government by notification in the
Official Gazette-
(a) to declare any trees or class of trees in a protected forest to be reserved from a date fixed
by the notification;
(b) declare that any portion of such forest .specified in the notification shall be dosed for such
term, not exceeding thirty years, as
the State
Government thinks fit, and that the rights of
private persons, if any, over such portion shall
be suspended during such term, provided that
the remainder of such forest be sufficient, and
in a locality reasonably convenient, for
the
due exercise of the rights suspended in the portion so closed; or
( c) prohibit, from a date fixed
as aforesaid, the
quarrying of stone, or the burning of lime or
charcoal, or the collection or subjection
to
any manufacturing process,
or removal
of,
any forest-produce in any such forest and the
breaking up or clearing for cultivation,
for
building, for herding cattle or for any other
purpose, of any land in any such forest."
Section 31 provides for the publication of a notification
under s. 30 and s. 32 for the regulations which may be
made for protected forests i.e., areas in which particular
trees are protected and s. 33 provides for
penalties for
acts in contravention of a notification under s.
30 or of
rules, under s. 32.
This section enacts:
1964
Union of India
v.
Abdul Jalil
A.yyangar h
1964
Union of India
.
v.
Abdul Jalll
Ayyangar ].
SUPREME COURT REPORTS
[1g64)
"33.