# GURU DATTA SHARMA v. STATE OF BIHAR

- **Citation:** [1962] 2 S.C.R. 292
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 41 of 1960
- **Bench:** B. P. Sinha, A. K. Sarkar, K. c. DAS GUPTA, N. RAJAGOPALA AYYANGARand J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/guru-datta-sharma-v-state-of-bihar-2254
- **Pages:** 32

## Headnote

Forest-Protection-V olidity
of
enactment-Constitutional
validity-Legislative competence-Notification by State Government
-Validity-Bihar Private Forests Act, 1946 (Bihar 3 of 1946).
ss. 14, 21-Bihar Private Forests Act, 1947 (Bihar 9 of 1948),
ss. 14, 21-Ch. IIl-Bihar Private Forests (Validating) Act, I949
(Bihar I2 of 1949), s. 2--Government of India Act, I935 (25 & 26
Geo. 5 Ch. 42), s. 299(2)-Constitution of India, Arts. 19(1)(]).
JI (2).
In 1946 the appellant was granted a right to cut and
remove bamboos and certain other timber to· be found in a
specific area of the forest Village of Jun by certain persons
known as Manjhis who held under a mokarari lease granted by
the Raja of Ranka and whose names had been entered in the
revenue records. Meanwhile, the Bihar Private Forests Act,
lg46, was enacted and it came into force on February 25, 1946.
This Act was repealed and re-enacted by Bihar Act 9 of r948.
On October 14, 1946, the Governor of Bihar issued a notification
under ss. 14 and 21 of the Bihar Private Forests Act, 1946,
declaring the forest of Jun as a protected forest. Though in
the Schedule to the said notification, against the column headed
"name of the proprietor" the name of Raja of Ranka was entered, a copy of the notification was however served on the
Manjhis.
Immediately on the issue of the notification the officials of the Government of Bihar prevented the appellant from
working the forest any further.
The appellant challenged the validity of the proceedings
under the Act by filing a suit. The trial court held that the
Act was valid but decreed the suit on the. ground that the
notification issued under s. 14 was invalid, primarily for the
reason that tbe name of the Manjhis a.s landlord had not been
mentioned in it. The High Court on appeal reversed the decree
and dismissed the suit, holding that the omission of the name
of the Manjhis in the notification did not render the same invalid and that even otherwise the proceedings under Ch. III of
the Act had been validated bys. 2 of Bihar Act 12 of 1949·
Held, that the Bihar Private Forests Acts of 1946 and 1948
were validly enacted and were within the Legislative competence of the Province under the Government of India Act, lQ35,
and were not otherwise obnoxious to its provisions.
·
Bihar Act 3 of 1946 was an Act supplementary to, or rather
a complement of the Indian Forests Act of r927 and w,1s clearly
2 S.C.R. SUPREME COURT REPORTS
293
covered by the l.i.:ntry 'Forests' in iten1 22 of Provincial I.egislaI96I
tive List under which the Province could enact legislation not
1nerely gener31ly in relation to "Forests" but also to enable the
Guru Datta
Government to assu1ne m::inagement and control of forests belongShairna
ing to private pi"oprietors. Such a legislation involved no violav.
tion of the guarantee against "acquisition by the State without
State of .f/ihar
compensation" contained in s. 299(2) of the Government of India
Act, HJ35 Property, as a legal concept, was the sum of a bundle of
rights and the imposition of a compulsory Governmental agency
for the purpose of managing the forest with a liability imposed
to account to the proprietor for the income derived as laid down
by the statute was not an "acquisition" of the property itself
within s. 299(2) of the Government of India Act, 1935· Nor
does s. 299(5) affect the matter. The rights referred to in it are
derivative rights, 1ike interests carved by an owner-a lessee 1
mortgagee etc. and not an incident of a property right.
Held, further, that the correct specification of the name 6f
the landlord was not a legal pre-requisite of a valid notification
under s. 14 of the Bihar Act 3 of 1946 but the emphasis was on
specification of the land and not so much on the owner or the
person interested in it. The proceedings taken under Ch. III
of the Act including the notification issued under s. 14 of the
Act were valid and in accordance with the law and the validity
of the service of notices required by s. 14 or

## Text

_Characters 0–39,813 of 70,296. This is a partial read: ask again with offset=39813 for what follows._

I96I
April z4.
'
292
SUPREME COURT REPORTS
[1962]
GURU DATTA SHARMA
v.
STATE OF BIHAR
(B. P. SINHA, c. J., A. K. SARKAR, K. c. DAS GUPTA,
N. RAJAGOPALA AYYANGARand J. R. MuDHOLKAR, JJ.)
Forest-Protection-V olidity
of
enactment-Constitutional
validity-Legislative competence-Notification by State Government
-Validity-Bihar Private Forests Act, 1946 (Bihar 3 of 1946).
ss. 14, 21-Bihar Private Forests Act, 1947 (Bihar 9 of 1948),
ss. 14, 21-Ch. IIl-Bihar Private Forests (Validating) Act, I949
(Bihar I2 of 1949), s. 2--Government of India Act, I935 (25 & 26
Geo. 5 Ch. 42), s. 299(2)-Constitution of India, Arts. 19(1)(]).
JI (2).
In 1946 the appellant was granted a right to cut and
remove bamboos and certain other timber to· be found in a
specific area of the forest Village of Jun by certain persons
known as Manjhis who held under a mokarari lease granted by
the Raja of Ranka and whose names had been entered in the
revenue records. Meanwhile, the Bihar Private Forests Act,
lg46, was enacted and it came into force on February 25, 1946.
This Act was repealed and re-enacted by Bihar Act 9 of r948.
On October 14, 1946, the Governor of Bihar issued a notification
under ss. 14 and 21 of the Bihar Private Forests Act, 1946,
declaring the forest of Jun as a protected forest. Though in
the Schedule to the said notification, against the column headed
"name of the proprietor" the name of Raja of Ranka was entered, a copy of the notification was however served on the
Manjhis.
Immediately on the issue of the notification the officials of the Government of Bihar prevented the appellant from
working the forest any further.
The appellant challenged the validity of the proceedings
under the Act by filing a suit. The trial court held that the
Act was valid but decreed the suit on the. ground that the
notification issued under s. 14 was invalid, primarily for the
reason that tbe name of the Manjhis a.s landlord had not been
mentioned in it. The High Court on appeal reversed the decree
and dismissed the suit, holding that the omission of the name
of the Manjhis in the notification did not render the same invalid and that even otherwise the proceedings under Ch. III of
the Act had been validated bys. 2 of Bihar Act 12 of 1949·
Held, that the Bihar Private Forests Acts of 1946 and 1948
were validly enacted and were within the Legislative competence of the Province under the Government of India Act, lQ35,
and were not otherwise obnoxious to its provisions.
·
Bihar Act 3 of 1946 was an Act supplementary to, or rather
a complement of the Indian Forests Act of r927 and w,1s clearly
2 S.C.R. SUPREME COURT REPORTS
293
covered by the l.i.:ntry 'Forests' in iten1 22 of Provincial I.egislaI96I
tive List under which the Province could enact legislation not
1nerely gener31ly in relation to "Forests" but also to enable the
Guru Datta
Government to assu1ne m::inagement and control of forests belongShairna
ing to private pi"oprietors. Such a legislation involved no violav.
tion of the guarantee against "acquisition by the State without
State of .f/ihar
compensation" contained in s. 299(2) of the Government of India
Act, HJ35 Property, as a legal concept, was the sum of a bundle of
rights and the imposition of a compulsory Governmental agency
for the purpose of managing the forest with a liability imposed
to account to the proprietor for the income derived as laid down
by the statute was not an "acquisition" of the property itself
within s. 299(2) of the Government of India Act, 1935· Nor
does s. 299(5) affect the matter. The rights referred to in it are
derivative rights, 1ike interests carved by an owner-a lessee 1
mortgagee etc. and not an incident of a property right.
Held, further, that the correct specification of the name 6f
the landlord was not a legal pre-requisite of a valid notification
under s. 14 of the Bihar Act 3 of 1946 but the emphasis was on
specification of the land and not so much on the owner or the
person interested in it. The proceedings taken under Ch. III
of the Act including the notification issued under s. 14 of the
Act were valid and in accordance with the law and the validity
of the service of notices required by s. 14 or other provisions
of the Act could not be challenged in view of the provisions of
s. 2 of the Bihar Private Forests (Validating) Act, 1949·
Held, also, that the legislation under which the appellant's
rights were extinguished, subject to his claim for compensation,
was a valid law which took effect in 1946, long before the Constitution came into force and the appellant had therefore no
rights which could survive the Constitution so as to enable him
to invoke the protection of Part III thereof.
M.D. Sir Kameshwar Singh v. State of Bihar, [1950] I.L.R.
29 Pat. 790 and Dwarkaaas Shrinivas of Bombay v. Sholapur
Spinning & Weaving Co., Lid. [1954] S.C.R. 674, distinguished.
Sm. Khemi Mahatani v. Cha.ran Napit, A.LR. 1953 Pat. 365,
K.B.N. Singh v. State, (1956) I.L.R. 36 Pat. 69, Administrator,
Lahore Municipality v. Daulat Ram Kapur, [1942] F.C.R. 3r,
State of West Bengal v. Subodh Gopal Bose, [1954] S.C.R. 587,
Bhikaji Narain Dhakras v. State of Madhya Pradesh, [1955] 2
S.C.R. 589, Slattery v. Naylor, (1888) 13 App. Cas. 446 and Shanti
Sarup v. Union of India, A.LR. 1955 S.C. 624, referred to.
Belfast Corporation v. 0. D. Cars Ltd., [1960] A.C. 490,
applied.
CrvIL
APPELLATE JURISDICTION:
Civil
Appeal
No. 41 of 1960.
38
Guru Datta
Sha,ma
v.
State of Bihar
Ayyangar ].
~:
294
SUPREME COURT REPORTS
[1962]
Appeal from the judgment and decree dated April
28, 1958, of the Patna High Court in appeal from
Original Decree No. 70 of 1953.
L. K. Jha, A. K. Jha, S.S. Shukla, E. Udayarathnam
and K. K. Sinha, for the appellant.
Lal Narayan Sinha, Bajrang Sahay and S. P.
Varma, for .the respondent No. 1.
1961. April 24. The Judgment of the Court was
delivered by
AYYANGAR, J.-This appeal comes before us on a
certificate granted by High Court of Patna under
Art. 133(1) of the Constitution.
'The appellant had filed a suit against the State of
Bihar before the Subordinate Judge, Daltonganj and
had succeeded in obtaining a decree in his favour the
details of which we shall presently narrate. The State
preferred an appeal to the High Court and by the
judgment now under appeal the learned Judges of the
High Court had allowed the appeal and dismissed the
suit with costs, and the plaintiff has come np on
appeal to this court.
The facts giving rise to the suit and the appeal may
now be briefly stated. The village of Jun in the district
of Palamau in the State of Bihar was within the estate
of the Raja of Ranka. This proprietor had granted
a mokarari lease df the Yillage which consisted mostly
of forest lands, in favour of certain persons who have
been referred to in these proceedings as the Manjhis.
The Manjhis in their turn entered into a registered
agreement on February 23, 1946, with Gurudutt
Sharma-the appellant before us, whereby the latter
was, in consideration of the payment of a sum of
Rs. 6,000, granted the right to cnt and remove bamboos and certain other timber to be found i.n a specified area of this forest-village. This right the appellant was to have for a period of 8 years ending on
March 1, 1954.
By a further deed executed on March
15, 1946, which was howeyer unregistercd,the 1\fanjhis
granted to the appellant the right to pluck; or collect
and carry away bidi leaYes in the same for<'st area for
2 S.C.R. SUPREME COURT REPORTS
295
a period of 9 years ending Ma.rch l, 1955, for a consideration of Rs. 200~ It is the case of the appellant
that immediately after these deeds were executed, he
started cutting the trees and otherwise exercising the
rights granted to him under them.
Meanwhile the Governor of Bihar who had, by
proclamation issued by him under s. 93 of the Government of India Act, 1935, assumed to himself the
powers vested in the Provincial Legislature, enacted
in exercise of the powers so assumed, the Bihar Private Forests Act, 1946. (Bihar 3 of 1946). It is the
validity of this enactment and the interpretation of
its provisions and of the similar provisions in the
Bihar Pri,,ate Forests Act, 1947 (Bihar 9 of 1948), by
which it was repealed and re-enacted, that form the
main subject of controversy in this appeal. It is
therefore necessary to set out certain of the relevant
provisions and also the action taken under them in
order to appreciate the contentions raised by learned
Counsel for the appellant. The Governor's Act of
1946 extended to the whole of the Province of Bihar
and came inl.o force on February 25, 1946, when
having received t.he assent of the Governor-General it
was first published in the Bihar Gazette. There were
certain forests which were excepted from the operation of this Act by its second section, but the forestE
in the village of Jun with which this appeal is concerned were not among them. The Act contained the
definition of a "landlord" as meaning 'the owner of
the estate or tennre in which a forest is comprised who
is entitled to exercise any rights in the forests'. It is
obvious tl;iat the Manjhis would be "landlords" within
this definition. Section 4 of this Act enacted:
"The rights of the landlord and ...... the rights of
any other person to out., collect or rem·ove trees,
timber or other forest produce in or from ...... in any
forest shall not be exercised in contravention of the
provisions made in or under this Act."
There were other restrictions on the rights of landlords or persons claiming through them but these are
not very )llaterial for the point required to be decided
in this appeal. Chapter Ill of this enactment which
Guru Datta
Sha)tn{'
v.
Stale of Bihar
Ayyangar ].
z96z
Guru Datta
Sharma
v.
Slate of Biha.-
Ayyangar J.
296
SUPREME COURT REPORTS
[1962]
comprised ss. 13 to 30 dealt with "private protected
forests" which were defined in s. 3( 10) as 'a forest
specified in a notification issued under sub-s. (1) of
s. 29'. Sectionl3 with which this Chapter opens made
provision for the Provincial Government, "if satisfied
that it was necessary in the public interest to apply
the provisions of this Chapter to any private forest"
to constitute such forest "a private protected forest."
Section 14 required the Government, when proposing
to constitute a private forest as a "private protected
forest" "to issue a notification (a copy of which shall
be served on the landlord in the prescribed manner)
(a) declaring its proposal, (b) specifying the situation
and limits of the forests and stating that landlords
whose interests are likely to be affected by the constitution of the private protected forests to state their
objections in writing against the proposal." Section 15
prescribed the procedure for hearing the objections
which might be presented under s. 14 and after the
diHposal of the objections a notification might issue
declaring "that it has been decided to constitute" a
demarcated area as "a private protected forest" and
for other consequential matters including the determination of the existence a'1d nature of rights other than
those of the landlords in or over such forests.
After
the issue of the notification under s. 15, the Forest
Settlement Officer was· required by s. 16 to publish a
proclamation in the village in the neighbourhood of
the forest requiring persons claiming rights other than
those of a landlord, to appear before him and state the
particulars thereof and the compensation which they
claimed for the infringement of their rights. Sections
17 and 18 dealt with the enquiry by the ]'orest Settlement Officer in respect of these objections and his
powers in doing so.
Section 19 made provision for
the extfoction of the rights and claims which had not
been preferred in response to a notification under s. 16
unless the officer was satisfied that the same was not
made for sufficient cause. Section 29 enacted:
"29. (1) When the following events have occurred,
namely:-
( a) the period fixed under section 16 for preferring
t
2 s.c.R.
SUPREME COURT REPORTS
297
claims has elapsed, and all claims, if any, made
under sections 16 and 22 have been disposed of by
the Forest Settlement Officer; and
(b) if any such claims have been made, the period
limited by section 26 for appealing from the orders
passed on such claims has elapsed, and all appeals
(if any) presented within such period lrnvc been disposed of by the appellate officer,
the Provincial Government shall publish a notification in the official Gazette, specifying definitely
according to boundary marks erected or othel'wise,
the limits of the forest which is to be constituted a
private protected forest, and declaring the same to
be a private protected forest from a date fixed by
the notification, and from the date so fixed such
foreRt shall be deemed to be a private protected
forest:
Provided that, if in the case of any forest in
respect of which a notification under section 14 lias
issued, the Provincial Government considers tlrnt
the enquiries, procedure and appeals referred to in
this Chapter will occupy such length of time as in
the meantime to endanger the CfJnservaLion <)f the
forest, the Provincial G1Jvemment may, pending the
completion fJf the said enquiries, procedures and
appeals, declare such forest to be a private pl'fJtected forest, but not, except as provided in sectio1rn 20
and 21, so as to abridge or affect any existing
rights.
(2) Any declaration made in respect of any forest
by the .Provincial Government under the proviso to
sub-section (1) shall cease to have effect from Uie
date of any final order passed under secl.ion 15
directing that the proposal to constitute snch forest
a ptivate protected forest shall be dropped, or of
any order passed under wb-section (l)."
But pending this notification by which "a, private protected forest" was constituted there were provisions
for keeping things in status. quo and for the t'Xtii1guishment of rights by payment of compensation of
the interests of persons who were not landlords.
Section 20 imposed a ban on landlords entering into
Guru Datta
Sha1n1a
v.
State of Bihar
Ayyangar .f.
Guru Datta
Sha1ma
v.
State of Bt'har
Ayyangar ].
298
SUPREME COURT REPORTS
[1962]
contracts with any other person conferring on the
latter the right to cut, collect or remove trees, timber or
other forest produce after the issue of a notification
under s. 14.
Having thus dealt with the landlord,
s. 21 proceeded to enact a similar ban to have effect
between the date of the notification under s. 14 and
the formal constitution of "a private protected forest"
by a notification under s. 29 against the cutting,
collection or removal of trees by every person including the landlord as well as any person claiming rights
under him. Section 22 laid down the procedure for
dealing with claims of persons who had entered into
contracts with landlords whereby they had obtained
the right to cut, collect and remove trees, timber or
other forest produce etc. It also made provision for
the payment of compensation to such contractors.
Sections 23 to 28 made provision for miscellaneous
matters to which it is not necessary to refer.
There are other provisions which are material for
the points raised in this.appeal but to these we shall
advert later.
To resume the narration of facts, there was issued
on October 14, 1946 a notification under ss. 14 and 21
under Bihar Act III of 1946 of which the operative
words were:
"In exercise of the powers conferred by s. 14 of
the said Act the Governor is pleased to declare his
intention of constituting the said forest (described in
the lst Schedule hereto annexed) a private protected forest and direct that any landlord whose interests are likely to be affected by the said declaration
may, within 3 months from the date of this notification, present to the Deputy Collector of Palamau
an application in writing stating his objection to
the said forest being constituted a private protected
forest.."
The notification contained a further paragraph containing a direction purporting to be by virtue of the
power cont11ined in J· 21 "to prohibit every person
from cutting, collectrng or removing any tree or class
of trPes from the forests until the publication of the
notification under s. 29 of the Act." In the Schedule
2 S.C.R. SUPREME COURT REPORTS
299
annexed, village Jun was included with details of its
location. Against the column headed "Name of the
proprietor" was entered the Raja of Ranka though, as
stated already, the rights over the forest had passed
to the Manjhis whose name had been entered in the
revenue records. It is stated that until October 21,
1946 no rules had been framed under the Act prescribing the form and contents of the notification and of
the procedure to be followed in the issue of the
notification as well as for the conduct of the subsequent proceedings.
Immediately on the issue of this notification the
officials of the respondent-State prevented the appellant from working the forest any further.
The appellant at first took proceedings on the basis
of his rights under the Act. Meanwhile as the life- of
the Bihar Act III of 1946 was limited bv the terms of
s. 93 of the Government of India Act, 1935, the Legislature of the Province of Bihar enacted the Bihar
Private Forests Act, 1948 (Act IX of 1948), repealing
and re-enacting the Governor's Act. This enactment
came into force on March 3, 1948 and its terms,
subject to immaterial variations, were identical with
those contained in the Governor's Act which it replaced. The proceedings taken by the appellant continued
even after Act IX of 1948 came into force.
But it is
not necessary to refer to the steps taken by the appellant to assert certain rights and prefer certain claims
under this enactment, because they either failed or
were withdrawn at a later stage and nothing turns on
them.
Having failed in these proceedings under the Act,
the appellant filed the suit which has given rise to the
present appeal T. S. 1 of 1952 in the' Court of the
Subordinate Judge of Daltonganj impleading the
State of Bihar and one A. R. Chaudhuri to whom the
right to cut and collect bamboo and timber in a portion of the area covered by the appellant's contract
was granted by the Government, as the ~econd defendant. The plaint set out the various proceedings
which the pbintiff had taken under the Act, but the
gro111Hfo 011 \\'hich he ,c;ought the reliefs claimed were
Gu1v Datta
Shartua
v,
State of Bi.bar
Ayyangar ]·.
Guru Datta
Sharma
v.
State of Biknr
Ayyangar ].
300
SUPREME COUHT HEPORTS
[1962]
rested on: (1) The Forest Acts of 1946 and 1948 were
unconstitutional and void as being in contravention
of the provisions of the Government of India Act,
lil35. (2) That even if valid when originally enacted,
their provisions violated the frndament1tl rights
guaranteed by Part Ill of the Constitution a1"d could
not therefore be operative or be enforced after January
26, 1950, (3) The proceedings by which the suit-forest
was declared "a private protected forest" were illegal
and invalid principally for the reasons that (a) the
notification under s. 14 did not conform to the requirements of the statute, (b) the notices required to be
served on the landlord under the Act were not served,
and ( c) the notifications were not properly published
in the village as required by the Act.
Based on these grounds, the reliefs sought in the
plaint were set out in para. 17 and of these the
material ones were: (1) a declaration that the plaintiff
had a right to work the forests by cutting and
c~,rry
ing away the trees, timber etc. and the bidi leaves
which he was entitled to do under the deeds dated
February 23, 1946 and March 15, 1946, executed by
the Manjhis in hiB favour unaffected by the Bihar
Private .Forests Act, the validity of the proceedings
un_der which was impugned, (2) a decree for Rs. 55,000
being the estimated damages suffered by the plaintiff
by reason of the wrongful acts of the Government,
(3) restoration to possession of the forest lauds included in the two deeds, and (4) for mesne profits.
The learned Subordinate Judge who tried the suit,
though he held the Act valid, accepted the plaintiff's
contention that the notifications issued under s. 14
and the other provisions of Chapter III of the Act
were invalid, primarily for the reason that the name
of the Manjhis as the landlord had not been mentioned in the notification issued under s. 14 and on this
ground he passed a decree directing the State to restore
. possession of the forest to the plaintiff so as to euable
him to enjoy the same for a substituted period making allowance for the 7! months for which he had
worked the jungle before his enjoyment was interfered in October 1946. In this view the claim for
2 S.C.R. SUPREME COURT REPORTS
301
damages for Rs. 55,000 and for mesne profits was disallowed.
The State filed an appeal to the High Court of
Patna from this judgment and decree. The learned
Judges reversed the decree of the Subordinate Judge
and dismissed the suit with costs, holding that the
omission of the name of the Manjhis in the notification issued on October 14, 1946, did not render the
same invalid and that even otherwise the proceedings
under Ch. III of the Act had been validated by s. 2
of Act XII of 1949 to whose terms we shall refer in
due course. In view of the previous· decisions of the
High Court which upheld the constitutional validity
of the Bihar Private Forests Act, that point was not
pressed in the High Court. The plaintiff thereafter
applied to the High Court for a certificate under Art.
133(l)(a) of the Constitution and having obtained it
has preferred the present appeal. In the petition of
appeal as originally filed, the constitutional points
regarding the validity of the Private Forests Act were
not raised, but subsequently the appellant filed an
application under 0. XVIII, r. 3(2) of the Supreme
Court Rules for permission to urge additional grounds
in support of the appeal which we granted. The principal ground urged in this application was that the main
operative provisi0ns of the Bihar Private Forests Act,
both as originally enacted in 1946 as well as when reenacted in 1948, were unconstitutional as contravening the requirements of s. 299(2) of the Government
of India Act, 1935.
We consider that it will be convenient to deal first
with the point as to whether, assuming that the Bihar
Private Forests Act, 1946 and 1948 were valid, the
proceedings under Chapter III of the Act for declaring the village of Jun as "a private protected forest"
were legal before considering the question as to the
constitutionality of the Act raised by the additional
grounds urged before us. As would have been noticed
even from the narration of the facts, the principal
point urged for impugning the validity of the proceedings undei: Ch. III of the Aot was that the Manjhis,
39
Guru Datta
Shat ma
v.
State of Bihar
Ayyanga1 ].
r96I
Guru Datta
Shanna
v.
State of Bihar
302
SUPREME COURT REPORTS
[1962]
whose name had been entered in the record of rights
as the land-holders of the suit-village of Jun had not
been set out in the notification published under s. 14
of the Act and this was the ground upon which the
learned Subordinate Judge decided the suit in favour
of the appellant.
The provi8ions of s. 14 are in these
terms:
"14. Whenever it is proposed by the Provincial
Government to constitute any private forest a
private protected forest, the Provincial Government
shall issue a notification (a copy of which shall be
served on the landlord in the prescribed manner)-
(a) declaring that it is proposed to constitute
such forest a private protected forest;
(b) specifying as nearly as possible, the situation
and limits of such forest; and
(c) stating that any landlord whose interests are
likely to be affected if such forest is constituted a
private protected forest may, within such period,
not being less than three months from the date of
the notification, as shall be stated in the notification,
present to the Collector in writing any objection to
such forest being constituted a private protected
forest.
Explanation-For the purpose of clause (b), it
shall be sufficient to describe the limits of the forest
by roads, rivers, ridges or other well-known or
readily intelligible boundaries."
It would be seen that s. 14 contemplates two stages:
(1) the issue of a notification, and (2) the service of
the notification, as issued, on the landlord which has
to be in the prescribed manner. The expression
'Landlord' is defined in s. 3(6) as:
"the owner of the estate or tenure in which a
forest is comprised who is entitled to exercise any
rights in the forest."
So far as the notification itself is concerned, while
provision is made for the specification of the three
matters which are set out in sub-els. (a), (b) and (c),
there is no requirement in terms, that the name of the
landlord should be set out. It will further be observed
that the notification enables any person claiming
2 S.C.R. SUPREME COURT REPORTS
303
interest as a landlord and who considers that his
interests are likely to be affected by the proceedings
taken to prefer his objections to the declaration as a
"private protected forest". In other words, the notification is a general notice and its aim is to specify the
land in respect of which the declaration is proposed to
be made, so that the emphasis is more upon the
identity of the land than about the person who owns
the land or has rights over it. Besides, the section in
terms specifies what the legal and essential requirements as regards the contents of the notification are
and the ordinary rule of construction would point to
those requirements being exhaustive of what the law
demands. If therefore the specification or mention of
the name of the landlord is not an express requirement
of the section, is such a specification or mention a
requirement by any necessary intendment?
We have already set out the text of the impugned
notification dated October 14, 1946, and it would be
seen that it did mention the name of the landlord, but
this was incorrect in the sense that the Raja of Ranka
who was the proprietor of the estate but who had
parted with his rights over the forests by a mokrari
lease in favour of the Manjhis was shown as the landlord instead of the Manjhis. It was never the case of
the appellant that the mention of the proprietor's
name in the notification misled him or anyone as
regards the identity of the land. We might also mention that Mr. Jha, learned Counsel for the appellant
admitted that he could not impugn the validity of the
notification if notwithstanding that the name of the
landlord specified was incorrect, the notification was
served upon the proper landlord. It is also common
ground that the appellants took part in the proceedings under Ch. III, so that he knew the identity of
the property which was intended to be dealt with by
the notification.
The succeeding provisions of the enactment far from
supporting the case that the correct specification of
the name of the landlo,d is a legal pre-requisite of a
valid notification, points to the coriclusion that so far
1961
Guru Datta
Sharma
v.
State of Bihar
Ayyangar ].
Guru Datta
Sharma
v.
State of Bthar
Ayyangar ].
304
SUPREME COURT REPORTS
[1962]
as the notification is concerned the name of the landlord is not a legal requirement. For instance, reference
may be made to s. 21 where provision is made for the
issue of an order prohibiting, until the date of the
publication of a notification under s. 29, the cutting,
collecting or removal of any trees in any forest. Such
an order might be issued simultaneously with a notification under s. 14 and the order is "to be published in
the neighbourhood of the forest". Provisions of this
sort indicate what we have already mentioned, that
the emphasis in the notification is on specification of
the land and not so much on who the owner or the
person interested i:r; it wa.~. We are therefore clearly
of the opinion that the learned .Judges of the High
Court were right in holding that the notification under
s. 14 did not contravene the statute.
The next question that arises is whether the notification which was legal under s. 14, had been properly
served on the interested persons as required by the
provisions of Ch. III. The principal point that was
urged to call in question the validity of the service of
the notifications was based on the fact that the notices
had to be served under the terms of s. 14 "in the
prescribed manner" and that the rules which prescribed the manner of service were framed and issued
only on October 21, 1946, with the result that any
service of notice effected before that date could not be
deemed to be a proper service or a service in accordance with the rules and therefore of the statute. We
might however state that it was admitted that no
notices were, in fact, served.
Any enquiry, however,
of the validity of the service of notices required by
s. 14 or other provisions of the Act or the effect of the
failure to serve them has been rendered superfluous by
the provisions of s. 2 of the Bihar Private Forests
(Validating) Act (Act XII of 1949) which enacted:
"No proceeding or action taken under section 15,
21 and 29 of the Bihar Private Forests Act, 1946 or
under section 15, 21 or 30 of the Bihar Private
Forests Act, 1948, or under any other section of any
of the said Acts from the respective dates of
commencement of the said Acts, to the date of
2 s.c.R. SUPREME COURT REPORTS
305
commencement of this Act shall be deemed to be invalid or shall be called in question in any Court, or
proceeding whatsoever merely on the ground that a
copy of the notification under section 14 of any of
the said Acts was not served on the landlord, or
that there was any defect or ir.regularity in the
service of such notification, nor shall any suit, prosecution or other legal proceeding whatsoever, lie in
any Court of law against any servant of the crown
for or on account of or in respect of any such
proceeding or action taken by him."
The learned Subordinate Judge, by a process of reasoning which we are unable to follow, held that the
terms of this enactment were insufficient to validate
the non-service of the notice on the landlord as required by s. 14 and the other provisions of Ch. III of the
Bihar Private Forests Act. The learned .Judges of the
High Court, on the other hand, held and, in our
opinion, correctly, that the effect of the failure to
serve notices or any informality in the service of the
notices required bys. 14 anrl succeeding sections of the
Act was rectified and validated by the Act. In agreement. with the learned Judges of the High Court we
hold that the proceedings taken under Ch. III of the
Act, including the notification issued under s. 14 were
valid and in accordance with the law and that if the
Bihar Private Forests Act were valid the plaintiff
could have no legal ground of cpmplaint which he
could agitate in the suit and that the suit was therfore
properly directed to be dismissed.
This leaves the question of the constitutional v:ili·
dity of the Act for consideration. It is necessary to
state at the outset, that under the deeds dated February 23, 1946 and March 15, 1946, the status of the
appellant quod the Manjhis is only that of a licensee
or contractor having the right to cut and remove the
trees etc. and not that of a lessee. This wa.s the conclusion reached by the Subordinate Judge on the relevant terms of the two deeds and this was apparently
not even challenged in the High Court. On this basis
the only provisions of the Act which could be said to
directly invade the rights of the appella,nt are those
Guru Datta
Sharn1a
v.
State of JJihar
Ayyangar ] .
Guru Datta
Sharma
v.
State of Bihar
Ayyangar ].
306
SUPREME COURT REPORTS
[1962]
contained in Ch. III the material sections of which
we have already set out. As provision is made in
s. 22 of the Act for the ascertainment and payment of
compensation to forest contractors whose rights were
either modified or extinguished, the plea that there
was a violation of the guarantee against acquisition
by the State without compensation contained in
s. 299(2) of the Government of India Act, 1935, would
be seen to have no factual foundation.
But learned
Counsel for the appellant urged that the extinction of
the rights of contractors under the provisions of
Oh. III, was really in the nature of an ancillary provision complementary to and designed to render effective, the taking over of the management of "private
protected forests" under Ch. IV (to which we shall immediately advert) and that if the taking over of the
management was constitutionally impermissible, the
provisions of Oh. III must also be struck down as unconstitutional. We see force in this contention and
will therefore consider the constitutional validity not
so much of Oh. III as of Oh. IV.
"When a private forest is declared a "private protected forest" under the provisions of Ch. III the provisions of Oh. IV come into operation. Section 31 with
which this Chapter opens enacts:
"31. The control and management of every private protected forest shall vest in the Provincial
Government."
The management and control thus vested is to be
exercised through forest officers and s. 32 provides:
"32. The Provincial Government shall, by notification, appoint a Forest-Officer for the purposes of
each private protected forest or of a specified portion of each private protected forest."
His powers are defined by the succeeding sections and
next we haves. 35 which defines the limits subject to
which the landlord is permitted to remove timber and
other produce from private protected forests whose
control vests in the ProvinciaL Government under
s. 31, and s. 36 .enables the Collector to grant permission to the landlord to erect embankments at suitable
places within the forest for the purpose of irrigating
2 S.C.R. SUPREME COURT REPORTS
307
the land beyond the boundaries of the said forest. The
section that follows is important and so we shall set
it out in full:
"37. 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."
Section 38 requires the Provincial Government to
maintain the revenue and expenditure account with
an obligation to supply an extract of the yearly
account to the landlord of such forests. The disbursement of the revenues which it receives or the income
which it collects under s. 37 is provided for by s. 39
which runs:
"39. (1) The Provincial Government shall,,during
the period of its 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
Forests 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,
(2) For the purpose of calculating the net profits,
the total expenditure incurred on the working and
management of the forest shall be adjusted against
the total Income from the working and management up to the date of account and the amount of
any deficit shall be carried forward with interest at
the prescribed . rate from year to year till such
amount is made up and surplus is effected.
(3) .............................................................. "
I96I
Guru Datta
Sharma
v.
Stale of Bihar
Ayyangar ].
1961
Gu1'u Datta
Sharma
v.
State of Bihar
Ayyangar ].
308
SUPREME COURT REPORTS
[1962]
ands. 40 which might be termed a residuary provision reads:
"40. The rights of right-holders in a private
protected forest shall be exercised in accordance
with the rules."
It is only necessary to add that the provisions contained in the re-enacted Act IX of 1948 are substantially identical except as to variation in the numbering of the sections and it is therefore unnecessary to
cum her this judgment with a reference to the corresponding provisions of that enactment.
In the main, the argument of Mr. Jha, learned
Counsel for the appellant on this point was based on
the reasoning contained in the judgment of a Special
Bench elf the Patna High Court in M. D. Kameshwar
Singh v. State of Bihar (1) where the learned Judges
held the Bihar Sta~e Management of Estates and
Tenures Act, 1949, to be ultra vires of the powers of
the Provincial Legislature as contained in the Government of India Act, 1935. The Act there impugned
was one which was described as an "Act to provide
for the State Management of estates and tenures in
the Province of Bihar".
Provision was made for
Government notifying any estates or tenures in tho
Province and on such notification the management of
the estate or tenure was to vest in an officer designated by the Act. On such management being taken
over, the power of the proprietor or tenure-holder to
manage the estate was to cease and he was rendered
incompetent to deal with or have any right to create
interests in the property by way of mortgage or lease.
The rents and profits accruing from the estate were to
be payable to and to be collected by tho Manager who
alone was, nnrfor the statute competent to grant valid
receipts thernfor. Tlwre \\·ere Rpetfal provisions emp01vering the Manager to orr!cr the removal of mortgagees or lessees-in-posRession by virtue of agreements
with the proprietor or tenure-holder. Special provisions were also mr1de for dealing with the claims of
creditors-both secured and unsecured. Section 20(5)
of the Act made provision for the disposal of the
(1) (1950) I.L.R. 29 Patna 790.
2 S.C.R. SUPREME COURT REPORTS
309
income, rents and profits received by the manager.
They were to be applied first for the payment of revenue to Government,. then to municipal rents, next to
costs of management and supervision, then for an
allowance to the proprietor to be fixed by rules made
by Government, and any surplus remaining thereafter
was to be paid to the proprietor at the end of each
financial year with power, however, to .the manager
to retain such portion of the surplus which he might
consider necessary as a working balance for the ensuing year. The manager was to have power to contract
loans on the security of the estate or tenure. The
jurisdiction of the civil courts was barred in respect
of matters for which provision was made by the Act.
Though there was a direction that the manager should
have his accounts audited with a right to the proprietor or tenure-holder to inspeot these accounts, in cases
however where these accounts were not audited the
right of the proprietor was merely to draw the attention of the Government to the lapse, with however a
bar on enforcing such rights by resort to the courts
even in the event of the Provincial Government not
taking any action.
The validity of the enactment was challenged principally on two grounds: (1) that an Act of this sort
which deprived the proprietors and tenure-holders of
possession of their property for no default on their
part and for no justifiable reason grounded on public
interest was beyond the legislative competence of the
Province, (2) that even if competent, it amounted to
"an acquisition of property without compensation"
and for a purpose which was not a public purpose so
as to be repugnant to the provisions of s. 299(2) of the
Government of India Act, 1935.