# STATE OF BIHAR v. LT. COL. K. S. R, SWAMI

- **Citation:** [1962] 3 S.C.R. 727
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appc&l No. 3ii4 of 1957
- **Bench:** K. N. Wanohoo, K. C. Das Gupta, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-v-lt-col-k-s-r-swami-2472
- **Pages:** 13

## Headnote

Forest Land-Reclamation-Whether Collector's or Fore&t
Officer's order should prwail--Extinction of rights-When takes
plaoo-Bihar Private
Forest Act, 1947 (Bihar 9 of 1948),
•· 30, Prouiso-Bihar Protected Forest Ruka, rr. 1 to 4, 8.
The respondent was the tenant of a tract of land which
formed part of a forest and continued to remain in possession
thereof after the Zemindari interest of the proprietor became
vested
in the State Government under the Bihar Land
Reforms Act, 1952. The Government notified its intention to
constitute the forest a private protected forest and by a
subsequent notification under s. 30 of the Indian Forest Act
prohibited the breaking up or cleaning the land of this and
certain other "protected forests" for cultivation whereupon
the employees of the Forest Department started interfering
with the agricultural operations carried on by the respondent.
The respondent then sought the permission of the Collector
to start reclamation and cultivation of this area and the
Collector gave him permission to "go ahead with the work of
reclamation and cultivation of this area." The forest officer
disregarded the Collector's order and made the respondent
stop
recla~tion. Ultimately the
Government
interfered
insisting on the withdrawal of the Collector's order. The
questions which arose for decision in this case was whether (I)
the order passed by the Forest officer on the basis of rule 4
of the Bihar Protected Forest Rules, which prohibited the
cutting or removal of trees without the permission of the
Forest Officer should prevail over the permission granted by
the Collector under r. 8 and (2) whether the respondent's
right to the land had ceased under s. 19 of the Bihar Private
Forests Act.
Held, that rr. 1 to 4 apply to the cutting or removal of
trees where inspite of such cutting the forest would remain a
forest but those rules did not control the cutting of trees which
would be necessary for clearing the land for cultivation or any
other purpose which was controlled only by r. 8. In the
present case the permission given by the Collector under r. 8
was in accordance with law and neither the Forest Officer nor
the Government had any authority in law to interfere with
that permission for the clearing or cultivation of the land.
The extinction of rights under s. 19 of the Act could
take place only after the publication of the final notification
1961
Sepi.mblr 22.
1961
Stat1 of Bihar
LI. Col. K. S. R.
SrHmi
Du Gu;taJ.
•
728
SUPREME COURf REPORTS
[1002]
under s. 30 ancl not by a notification under the proviso
thereof pending
the completion of enquiries under the
provisions of the Act.

## Text

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-
~-
---
3 S.C.R.
SUPREME COURT REPORTS
727
STATE OF BIHAR
v.
LT. COL. K. S. R, SWAMI
(K. N. WANOHOO, K. C. DAS GUPTA
and
J. c. SHAH, JJ.)
Forest Land-Reclamation-Whether Collector's or Fore&t
Officer's order should prwail--Extinction of rights-When takes
plaoo-Bihar Private
Forest Act, 1947 (Bihar 9 of 1948),
•· 30, Prouiso-Bihar Protected Forest Ruka, rr. 1 to 4, 8.
The respondent was the tenant of a tract of land which
formed part of a forest and continued to remain in possession
thereof after the Zemindari interest of the proprietor became
vested
in the State Government under the Bihar Land
Reforms Act, 1952. The Government notified its intention to
constitute the forest a private protected forest and by a
subsequent notification under s. 30 of the Indian Forest Act
prohibited the breaking up or cleaning the land of this and
certain other "protected forests" for cultivation whereupon
the employees of the Forest Department started interfering
with the agricultural operations carried on by the respondent.
The respondent then sought the permission of the Collector
to start reclamation and cultivation of this area and the
Collector gave him permission to "go ahead with the work of
reclamation and cultivation of this area." The forest officer
disregarded the Collector's order and made the respondent
stop
recla~tion. Ultimately the
Government
interfered
insisting on the withdrawal of the Collector's order. The
questions which arose for decision in this case was whether (I)
the order passed by the Forest officer on the basis of rule 4
of the Bihar Protected Forest Rules, which prohibited the
cutting or removal of trees without the permission of the
Forest Officer should prevail over the permission granted by
the Collector under r. 8 and (2) whether the respondent's
right to the land had ceased under s. 19 of the Bihar Private
Forests Act.
Held, that rr. 1 to 4 apply to the cutting or removal of
trees where inspite of such cutting the forest would remain a
forest but those rules did not control the cutting of trees which
would be necessary for clearing the land for cultivation or any
other purpose which was controlled only by r. 8. In the
present case the permission given by the Collector under r. 8
was in accordance with law and neither the Forest Officer nor
the Government had any authority in law to interfere with
that permission for the clearing or cultivation of the land.
The extinction of rights under s. 19 of the Act could
take place only after the publication of the final notification
1961
Sepi.mblr 22.
1961
Stat1 of Bihar
LI. Col. K. S. R.
SrHmi
Du Gu;taJ.
•
728
SUPREME COURf REPORTS
[1002]
under s. 30 ancl not by a notification under the proviso
thereof pending
the completion of enquiries under the
provisions of the Act.
CIVIL APPELLATE JURISDICTION: Civil Appc&l
No. 3ii4 of 1957.
Appeal from the judgment and decree dated
October 7, 1955, of the Patna High Court in Misc.
Judicial Case No. 422 of 1954.
L. K. Jlia, D. P. Singh, R. K. Garg, 1lf. K.
Ramamurthi and S. C. Agarwala, for the appellant.a.
B. K. P. Sinha and A. G. Ratnaparkhi, for
respondent.
1961. September 22. The Judgment of tho
Court was dolivl'red by
DA.s GUPTA, J.~This appeal by the Sta.to of
Bihar challenges the correctness of an order madti
by the High Court at Patna in an application by
the respondent under Art. 226 of the con;titution.
The respondent was inducted as a tenant on a
tract of land measuring :!45.69 acres in village
Singpur by tho then proprietor in ~ovcmber, 1945,
and con tinned to remain in possession after the
Zemindari interest of the proprietor bccamo vel!tcd
in the State of Bihar in consequence of a notification under the Bihar Land Reforms Act (Bihar Act
XXX of 1952) on the 30th December, 1952.
In
1945 this area was forest land. On Septcmb~r 15,
1946, a notification was published under section 14
of thll Biha.r Pri\•ate Forest Act, 1946 declaring
tho Government's intention of constituting the
forest a private protected forest.
By the same
notification the Governor further ordered that
until the publication of a notification under s. 30
of the Act all the rights to cut, collect and remove
trees or any class of troos in or from the forest
shall cease to exist subject to conditions .and speci·
fications specified in the Second Schedule. The
result of tm~ notilka.tion was that immediately on
its publication in the Government Gazotto the
respondent's right to cut, collect and remove trees
' ...
-
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3 S.C.R. SUPREME COURT REPORTS
729
ceased so long as this forest continued to be a
private forest. On the 6th April, 1948, a noti·
fi~ation under the proviso to s. 30 of the Bihar
Private Forest Act, was published. After the
forest fond became vested in the State on the 30th
December, 1952, there was a notification on January
22, 1953, which both parties agree, was in substance
under the proviso to s. 29 of the Indian Forest
Act, 1927. It is the common case of both the
parties that in consequence of this notification the ·
forests in Singpur Village became a protected
fore st. On May 29, 1953, a further notifivation
under section 30 of the Indian Forest Act was
made prohibiting the breaking up or clearing the
land of this and certain other "protected forests"
for cultivation. As local employees of the Forest
Department acting under the Divisional Forest
Officer, Gaya, started interfering with the agricultural operations carried on on behalf of the petitioner apparently on the strength of this notification
of May 29, 1953, the respondent sought the permission of the Collector of Gaya to start reclamation and cultivation of lands. On April 22, 1954
the Collector ·Of Gaya gave the petitioner permission "to go ahead with the work of reclamation and
cultivation in this area." The Forest Officer however disregarded the Collector's orders and made
the petitioner to stop reclamation.
On being
approached by the appellant the Collector called
upon the !forest Officer to furnish an. explanation
as to why he had flouted deliberately the Collector's
<?rders. Ultimately, the Bihar Government sent a
telegram to the Collector, Gaya, on June 10, 1954
. desiring that the order issued by the Collector on
April 2:.!, permitting the respondent "to go ahead
with the reclamation should be withdrawn pending
the decision of the Government in the matter" .
. The Collector forwarded a copy of this telegram to
the respondent for information and necessary action
. on June 11, 1954;
-~·
11141
Statt of Bihar
v.
Lt. Col. K. S. R.
Swami
Das Gupta J.
IS~l
S1at4 of BiMr
v.
LJ, Col. K. S. R.
Srvanri
D., Gupta ]•
'
730
SUPREME COURT REPORTS
(1962]
It does not appear that any further order
has been made by Go\·ernment in the matter.
On
August 2~ 1954 the respon.dent made 11is application
to the High Court of Judioature at Patna praying
that au appropriate writ be issued for cancellation
by the Government of Bihar of the directions
given on June IO, 1954 to the Collector and for
restraining the Government of Bihar and the Forest
Officer from interfering with the petitioner's possossion over this land in village Singpur.
The petitioner's case was that the forest
having becume a protected forest under Chapter IV
of the Indian Forest Act the Collector was the
proper and competent authority to give permission
to clear or break up for cultivation, land in tliis
forost under Rule 8 of the rulos made by the Government of Bih&r in exercise of the power conferred
by sectiun 32 of the Indian Forest Act, 1927 and
that neither tho Forest Officer nor the Government
of Bihar itself could in law interfere with what
he was doing on the strength of that permission.
In opposing the petition tho Stat{) of Bihar
contended that the Collector's order was of no
avail in the face of rule 4 of tho rules made by the
Government of Bihar under section 32 which provi·
des that "no person shall cut, eonvort, or remove
from the said forest or otherwise deal in trees etc.,
of the forest" oxcopt in accordance with Rules I, II
and III.
At the hearing of tho petition it was further
argued on beh<1lf on the State that the right of the
petitioner to the land in dispute had been extin·
guished under section 19 of the Bihar Act IX of
1948, on the p'Rblication of a notification by the
Government of Bihar under the proviso to section
30 of that Act. The High Court rejected this argu·
mcnt, being of tho opinion that extinction could
take place only when the final notification under
section 30 was published and as this final notification was not pulilished section 19 had no application
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....
...
3 S.C.R.
SUPREME COURT REPORTS
731
to the .case. The High Court also held that in a
oase where a Collector grants permission under
Rule 8 of the Bihar Protected Forest Rules the
Divisional Forest Officer had no power to interfere
by virtue of Rules 1 to 4 of the· same Rules. Accord·
ingly the High Court allowed the petition and
made an order quashing the State Government's
order conveyed in their telegram of the 10th June
and the order of the Forest Officer dated the lst
May, by which. this Officer had prohibited reclamation of the disputed land by the petitioner.
In this Court, Mr. Jha raised both the points
on which the petition was resisted before the High
Court, viz., (1) that the petitioner's right to the
land had ceased under s. 19 of the Bihe.r Private
Forests Act and (2) that the order passed by the
Forest Officer on the basis of Rule 4 of the Bihar
Protected Forests Rules should prevail over the
permission granted by the Collector under r. 8.
Mr. Jha's first contention on the first point
was that when a notification is made under the
proviso to·section 30, no further notification under
section 30 need be made at all. In our opinion,
there is no force in this contention.
The provisions of the Bihar Private Forests
Act, 194 7 in respect of private Protected Forests
are contained in Chapter III of tho Act. The scheme
of these provisions is· that the State Government
on being satisfied that it is necessary in the public
interest to apply the provisions of the chapter to any
private forest, may constitute such forest a protected
forest in the manner laid down; the first step that has
to be taken is the issue of a notification under section
14 declaring that it is proposed to constitute a
forest a private protected forest and calling for
objections of all laudlords whose interests are
'likely to be affected.
Tho hearing of objections
is provided for in section 15, sub-section 3 of which
section further provides that if no. objection is
presented or when objection is so presented and
1961
State of Bihar
.
V,
LI. Col. K. S. R.
Swami
Das Gupta J,
'
1961
S1ct1 of Bi.har
v.
Lt C./, K. S. R.
SrlfOnri
Das Gupi• J.
i32
SUPREME COURT REPORTS
[1962]
finally disposed of the Government may issue a.
notifica.tion deela.ring its <leciaion to constitute the
area. a private forest and appointing an officer "to
enquire into 11.nd determine the existence, nature
and extent of any rights other than landlord's
rights, alle~d to exist in favo11r of any person in
or over any fond in the foreet". Section 16 provides that on the i86ue of such a notification undec
sub-s. 3 of s.15 the Forest Settlement Officer shall
publish a procla.ma.tion fixing a. period of not les1
than three months from the date of such proclamation for claims to be made by all peraoos as rega.rd1
rights othor than landlord's rights. Section 17
empowers the Forest Settlement Officer to enquire
into a.II claims preferred in response to the notification and alto into tho existence of any rights mentioned in sub·s.3 of s. 15 and not claimed under
s. 16. Sect.ion 22 of this Cha.ptor deals with tho
procedures for <lea.ling with claims of forest contra.-
ctors and grantees. Section 23 provides that in
the case of claim to a right in or over a.ny land
other tha.n a right of way or right of pasture or a
right to forest produce or water course the Forest
Settlement Officer shall pass an order admitting or
rejecting the same in whole or in part subject to
the provisions of scctiollB 25 and 26.
Section 27
givos a right of appeal to any person who has
ma.do a cla.im under section 16 or section 22 against
the 01der passed by tho Forest Settlement Officer
under BB. 22, 23, 24 or 26. Section 30 provides for
the fina.l a.ction to be taken by the Government in
the matter of constituting a private protected
forest.
The main portion of the section is in these
words:-
"Whero the following events have occurred,
namely,
-..
(a.) the period fixed under section Hi for
preferring claims has elapsed and all claims,
__ _.,...
if any, made under sections 16 and 22 ha.ve
been disposed of by the forest settlement
officer, and
-
--
3 S.C.R.
SUPREME COURT REPORTS
733
(b) if any such claim has been made, the
period limited by section 27 for appealing
from the orders passed on such claims has
elapsed, and all appeals (if any) presented
within such period have been disposed of by
the appellate officer,
the State Government shall publish a
notification in the Official Gazette specifying,
definitely according to boundary marks erected
or otherwise, the limits of the forest which is to
be constituted a private protected forest, and
declaring the same to be a private protected
forest, from the date fixed by the notification
and from the date so fixed such forest shall
be deemed to be a private protected forest".
It is followed by a proviso in the
following
words:-
"Provided that, if in the case of any
forest in respect of which a notification under
section 14 has issued, the State Government
consider that the inquiries, procedure and
appeals referred to in this Chapter will occupy
such length of time as to cause undue delay in
the forest being declared a private protected
forest,
such delay, in the opinion of the
State Government being prejudicial to the
public interest, the State Government may,
pending the completion of the said enquiries,
procedure and appeals, declare by a notification containing the particulars Bpecified in
this section, such forest to be a private
forest".
It is abundantly clear that the notification
under the proviso is not intended to amount to a
final constitution of the private forest as a private
protected forest. The notification under the proviso
is to be made only "pending the completion of the
said enquiries procedure and appeals". Quite clearly,
bh<'>se enquiries, procedure and appeals are not stopped
ty the declaration under the proviso. They have to
1961
Slat• ofB;har
v.
Lt. Col. K.S.R.
Swami
Das Gupta J,
19111
Stat• of RiMr
v.
L;. Col. K. S. R,
Suawi
Das 011/>t" ].
1
734'
SUPREME COURT REPORTS
[1962J
be completed a.nd it is only after their completion
that a notiJica.tion can bo made by the Government
under tho main part of the section. On a reasonable reading of tho section it is therefore abundantly
clear that O'fllll where the Government thinks fit
to make 11. declaration under the proviso, this will
have effect only so long as tho period fixed under
section 16 for preferring claims (i) has not expired;
(ii) claims under ss.l{) and 22 ha;e not, been disposed
of; (iii) the periods limited by section 27 for appealing from tho orders passed in respect of those
claims have not elapsed; and (iv) all appeals preferred against such orders have been disposed of.
Turning now to section 19 of this Chapter we
find it laying down that "rights (other than landlord's rights) in respect of which no claim has boen
urefcrred under s. 16 and of the oxist{Jnce of which
no knowledge has been acquired by enquiry under
s. 17, aha.II be extinguished, unless before tho notificaticn under 8. 30 is published, the person claiming tht>m satisfies tho Forest S cttlemcnt OJiicer that
he had sufficient cause for not preferring such claim
within the period fixed under s. 16."
The appellant's argumont is that the words
"notification under s. ~O is published" includes a
notification made under the proviso to that section
and that consequently when a notification under
the proviso to s. 30 has been published all rights
other than landlord's rights, in respect of which no
claim has been preferred and of the existence of
which no knowledge has been acquired by an en·
quiry undllr s. 17, shall be extinguished.
This argument is in our opinion wholly un·
acceptl1 ble. Considered in the background 0f the
provisions in the Act for claims to be mado under
s. W, for enquiry into these by . tho Forest
Officer and thereFLftcr for ap'peels from the decision
of tl1e Forest Officer, after the completion of all of
which only the final notification constituting the
private forest a private protected forest can be
•
-
-
...
-i -
3 S.C.R. SUPREME COURT REPORTS
735
made, it is clear that rights "other than landlord's
rights" in respect of which no claim has been preferred under s. 16 or which have not
been
disclosed by enquiry under s. 17 were intended
by the legislature to be extinguished only o.fter the
final notification is made. It is to he noticed that
three months' time from the date of the proclamation under s. 16 is to be allowed for making claims.
The enquiry under s. 17 can start only after
these claims have been made and some more time
must elapse before an enquiry can .be completed into the existence of rights which have not been
claimed under s. 16. A notification under the
proviso of s. 30 can however be made at any
time after the
notification under s. 14 has
issued. It is meaningless to speak of rights in respect of which no claim has been preferred under s.16
and of the existence of which no knowledge has
been acquired by
an
enquiry under
s. 17,
before the period for the enquiry under s. 17
has expired. Again, there will be no extinction of
rights, under s. 19, if the person claiming the
rights satisfies the Forest Settlement Officer that he
had sufficient oause for not preferring the claim
within the period fixed under s. 16. The question
of thus satisfying the Forest Settelment Officer can
clearly not arise before the period fixed under s. 16
has expired. All this clearly shows that the extinction of rights under s. 19 can take place only after
the final notification under s. 30 has been published.
It is necessary to consider next the apparent
conflict between the powers of the Officers of the
Forest Department under rr. 1 to 4 and the
powers of the Collector under r. 8 of the Protected Forest Rules. Under r. 1 persons who
are bona fide residents of Khasmahal lands may
eut, convert and remove to their homes for their
.,,...
own domestic use certain trees but the Forest
Officer can in his discretion withdraw this privilege.
Certain other trees as specified in the Rule may
1961
State of Bihar
v.
Lt. Col. K. S, R.
SWtJmi
Das Gupta J.
l~l
Stale of Bihar
v.
Lt. Col. IC S. R.
Swan1i
Das G11Pta J,
736
SUPREME COURT REPORTS
[1962)
be cut by suoh bona fide residents with the pre vi om
permission of the Forest Officer.
Under r. 2
the Forest Officer may by an order in writing authorise in certain circumstances villagers of adjacent
villages alRo to cut and remove trees mentioned in
r. I.
Rulo 3 providoa th"t
the
Divisional
Forest Officer may grant license to' any inhabitant
of 'l. town or vilIR-ge in the vicinity of a forest to
take treos, timber, or other produce for his own
use to any person whatsoever authorising him to fell
or remove trees for the purpose of trade on payment of fees at current rates as may be sanctioned by
the
Chief
Conservator
of
Fore8ts.
Rule 4 on which special reliance is placed on behalf
of the Stato is in these words :-"No person shall
cut, convert or remove from the said forest or
otherwi~e deal with any trees, timber or other
forest p1·oduce of the said forest ............ except as
providecl in Ruloa I, TI and III. Rulo Sunder which
the Collector gave permission rm1s thus : "No land
in the said forest shall be cleared or broken for
cultivation or any other purpose without the written
permission of.the Collector". There is an apparent
conflict here between the provisions of r. 4 and
r. 8 ; for, while under r. 4 no cutting, conversion or removal of trees can be made except under
license issued under r. 3 or permisAion granted
bv the Forest Officer under r. 2 or under tho
p~ovisions of r. 1, all this can be set at naught if
a written permission is granted by the Collector for
clearing or breaking up the land for cultivation or
any other purpose necessarily involving the cutting
and removal of trees.
On b<>half of tho appellant-Stiite Mr. Jha
argued that r. 8 has no operation so long as
trees are standing and it is only if trees have been
cut or removed under the provisions of rr. 1, 2
and 3 and only stumps of thoso trees aro standing
that the Collector can give permission for clearing
tho forest land or breaking it up for cultivation.
We are unable to persuade oul'!!elves that in ma.king
. r
.
-
-
--
-·
3 S.C.R.
SUPREME COURT REPORTS
737
these rules the Government intended to give such
limited authority only to the Collector.
It is obvious that while Rules 1, 2, 3 and 4
were made under clauses a, b, c and d of section 32,
Rule 8 has been made under clause g of section 32
which is for the definite matter of "clearing and
breaking up of land for cultivation or any other
purpose" in a protected forest. The reasonable way
of reading Rules 1 to 4 and Rule 8 appears to us to
be that Rules 1 to 4 apply to the cutting or removal
of trees where in spite of such cutting the forest
would continue to be a forest; but cutting of trees
which is necessary for clearing the land for cultivation or any other purpose is not controlled by Rules
1, 2, 3 or 4 but only by Rule 8.
That seems to us
to be the only way of harmonious construction of
Rules 4 and 8 and that must, in our opinion, have
been intended by the rule making authority.
In the present case therefore when the tenant
on the land asked for permission to clear the land
for cultivation and it was this clearing which
involved the cutting and removal of trees Rules 1
to 4 had no application and Rule 8 under which the
Collector acted applied. It may be mentioned here
that though Rule 8 is in the negative form, it is
what has been called a pregnant negative, saying
on the one hand that land in the forest may be
cleared or broken for cultivation or any other
purpose with tho written permission of the Collector
and on the other hand that without such permission
no such clearing or breaking up for cultivation or
any other purpose shall take place. The permission
given in the present case by the Collector was
therefore in accordance with law and neither the
Forest Officer nor the Government had any authority in law to interfere with that permission.
The last argument advanced by Mr. Jha is
that the prohibition by the State Government of
clearing or breaking up for cultivation or for any
other purpose of any land in a protected forest by
the notification dated May 29, 1953, under s. 30 of
1961
State of Bihar
v.
Lt. Col. K. S R.
Swami
Das Gupta J.
1961
Stall of Dit..r
v.
LI. C.1. K. S. R.
Swcmi
Du Gupta J,
738
SUPREME COURT REPORTS
(111~2]
the India Forest Act, 1927, must prevail over the
permission given by tho Collector. It is to be
noticed that when'.as ooction 30 empowers the State
Government int-,r alia to prohibit such breaking 11p
or clearing for cultivation of any land in a
protected forest, soction 32 empowers tho State
Government to make rules to regulate imer alia
"tho clearing and breaking of land for eulfrration
or any other purpose" in a protected forest.
Even
if the legislature bad said nothing else in this
matter, it would have been plausible to argue that
the prohibition under the notification would yield
before any permission given under the Rules under
s. 32. All doubts are however set at rest by section
.34 of the Aet which runs thus :-
"Nothing in this Chapter shall be deemed
to prohibit any act done with the permission
in writing of the Forest Officer,
or in
accordance with rules made 11ndcr s. 32, or
except as rc~ards any portion of a forest
closed under s. 30, or as regards any rights the
exercise of which has been suspended under
B. 33, in the exercise of any right recorded
under section 29".
It follows clearly and necessarily from section
34 that the prohibition by
notification of the
clearing of land would be ineffective where such
clcarin~ is being mado in accordance with Rule 8
of the Rules made under section 32.
All the contentions raised in tho appeal
therefore fail.
We are of opinion that there is no
legal authority for tho State Government to
interfere with the clearing or cultivation of land by
tho respondent which iB proposed to be done in
accordance with the written permission granted by
the Collector under Ruic 8 of tho Protected :Forest
Rules, 1953.
It appears that through some O\'ersight the
High Court ordered the issue of a writ of certiorari,
chough a. writ in the nature of mandamus was
. '
-
,
--·
•
3 s.c.R.
SUPREME COURT REPORTS
73g
prayed for. It is clear that the approp.riate w:it ~n
• - the circumstances of the present oase 1s a writ Ill
the nature of mandamus and we modify the order
made by the High Court to this extent that a writ
in the nature of mandamus be issued directing the
appellant-Government to cancel its order on the
Collector made on June IO, 1954 and restraining
the Government and the Forest Officer from inter-
-,.
fearing with the petitioner's possession over 245.69
acres of land in village Singpur which he possesses
as tenant.
-
The appeal is dismissed with coat8.
Appeal dismissed.
IMMANI APPA RAO AND OTHERS
v.
GOLLAPALLI RAMALINGAMURTHI AND ORS.
(B. P. SINHA, C. J., P. B. GAJllJNDRAGADKAR and
RAGHUBAR DAYAL, JJ.)
,_
~raud--R•nami Conveyance in fraud of creditor.-Suit by
b•n,am•dar for posseS!ion-Plea ~f.fraud in defence-If barred by
••loppel--Proper approach-Public inter'81-lndian Trusts Act
1882 (2 of 1882) s. 84.
_..-
The conveyance in mit was tI.e result of a collusive plan
between respondent I and respondent 2 to defraud the latter's
creditors.
The a.izreement was that respondent I was to act as
the benamidar for respl)ndent 2 and hfa sons, the appellants.
The fraud succeeded and the creditors of respondent 2 were in
_... fact defrauded. Thereafter respondent I brought the present
suit for declaration of title and recovery of possession against
respondent 2 and the appellants on the basis of the conveyance.
The latter resisted the suit on the ground that the conveyance
wa. fraudulent, unmpported by consideration and passed no
title. The High Court in oecond appeal held that the
appellants and respondent 2 were estopped from pleading
fraud in the suit and decreed the same. The question was
whether the view taken bv the High Court was correct and the
~stensible owner was entitled to a decree.
Held, that there could be no question of estoppel in a case
where both the parties were gu!ity of fraud
1961
State of Bihar
v.
Lt. Col. K. S. R.
Swami
Das Gupta],
1961
September 22.