DURGAJI Vs. STATE OF BIHAR
LAWS(PAT)-1952-11-7
HIGH COURT OF PATNA
Decided on November 24,1952

DURGAJI Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

Imam, J. - (1.) This suit has been transferred from the Court of the Subordinate Judge of Palamau to this Court for trial. There are two plaintiffs(1) Shri Shri Durgaji, a deity through her hereditary Shebait Basudeo Missir, and (2) Easudeo Missir himself. According to the plaint, the village Aloudia is non-resumable debattar property dedicated to plaintiff 1 for meeting the costs of her daily worship. The plaintiff 1 has purchased undivided one-half share, that is to say, eight annas of village Bhang which is permanent 'jagirdari.' These properties of plaintiff 1 are being managed by the 'Shebait', plaintiff 2. Plaintiff 2, in his personal capacity, owns the jagirdari villages Turhamu and Jamira, and undivided one-half share, that is to say, eight annas of the jagirdari viliage Bhang. There are jungles in these villages which are private properties of the plaintiffs, and the incomes from these jungles are spent for the worship of plaintiff 1, and plaintiff 2 also enjoys the income from the villages standing in his name in his own right. The Bihar Forests Act, 1946 (Bihar Act 3 of 1946) was enacted by the Governor in the exercise of his powers under Section 93, Government of India Act, 1935, and the Bihar Provincial Legislature enacted the Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948) which, in effect, continued substantially the provisions of Bihar Act 3 of 1946. The defendant, viz., the State of Bihar, by notifications published in the Gazette on various dates in 1948 applied the provisions of Bihar Act 9 of 1948 to certain areas in village Aloudia, Turhamu, Jamira & Bhang, and in consequence, the defendant was interfering with the plaintiffs' right of management and control and right to receive all income from those areas and jungles in these villages so as to deprive the plaintiffs of their ownership substantially. The cause of action arose on 7-1-1948, and 14-1-1948. The suit was provisionally valued at Rs. 5,250/-, the plaintiffs reserving the right to a lull decree on accounts being taken on payment of additional court-fees, if any, be required. The following reliefs were claimed: 1. That it be declared that the defendant has no right to assume control and management under the provisions of Bihar Act 9 of 1948, or to receive any income under the provisions of Section 37, Bihar Act, 3 of 1946, or Section 40, Bihar Act, 9 of 1948, the said provisions being ultra vires and void in respect of any part of villages Aloudia, Turhamu, Jamira and Bhang. 2. That a permanent injunction be issued on the defendant preventing the defendant from interfering with the plaintiffs in managing the said jungles according to the laws and rules framed by the defendant or in receiving all and any income from any part of the said villages even though such part has been validly made a private protected forest under Bihar Act 3 of 1946, or Bihar Act 9 of 1948. 3. That the defendant be ordered to account for all the incomes from the jungles aforesaid already in his hand and to deliver the same to the plaintiffs. 4. That all costs of the suit and interest thereon be decreed in favour of the plaintiffs, against the defendant. The defendant, the State of Bihar, filed a written statement denying the plaintiffs' allegations contending that Bihar Acts 3 of 1946 and 9 of 1948 were validly enacted, and that the provisions of these enactments were not ultra vires and that the suit was barred by Section 71, Bihar Private Forests Act, 1947. An additional written statement was filed to the effect that the plaintiffs' entire interest in all the estates and tenures including the disputed forest had vested -in the State of Bihar in consequences of Notification No. 110 LR/ZAN, dated the fi-9-1952, under Section 3, Bihar Land Reforms Act, and as such the suit had become infructuous. As a consequence of this additional written statement, an argument was made on behalf of the plaintiffs that if the main purpose of the suit that Bihar Acts 3 of 1946 and 9 of 1948 fee declared ultra vires, was defeated, at any rate the plaintiffs were entitled to recover sums of money received by the defendant from 1948 till the aforesaid notification in 1952.
(2.) When the suit was before the Subordinate Judge of Palamau, the following issues had been framed : 1. Is the suit undervalued and the Court-fee paid insufficient. 2. Whether the provisions of Bihar Act 3 of 1946 and Bihar Act 9 of 1948 are ultra vires, and whether it is illegal for the defendant to assume the control and management and to receive income of the property in suit. 3. Is the suit barred under Section 71, Bihar Forests Act, 1947. 4. To what relief, if any, is the plaintiff entitled. As a result of the filing of the additional written statement by the defendant, the issues had to be recasted, and they are now as follows: 1. Is the suit undervalued and the court-fee paid insufficient. 2. Whether the provisions of Bihar Act 3 of 1946 and Bihar Act 9 of 1948 are ultra vires and whether it is illegal for the defendant to assume the control and management and to receive income of the property in suit. 3. Whether in view of Notification No. 110/ LR/ZAN, dated 6-9-1952, and Notification No. 170-LR/ZAN, dated 11-9-1952, Issue No. (2) arises. If so, can the plaintiffs recover any sum of money from the defendant for income received from forest from 7-1-1948 to 11-9-1952. 4.Whether 16 annas of village Aloudia and 8 annas of village Bhang is debattar property. If so, can the right of the plaintiffs in these villages be affected by any notification under the Land Reforms Act (Bihar Act 30 of 1950) . 5. Is the suit barred under Section 71, Bihar Forests Act, 1947. 6. To what relief, if any, is the plaintiff: entitled."
(3.) Mr. B. C. De on behalf of the plaintiffs has urged that the Bihar Private Forests Act, 1947 (Bihar Act 9 of 1948), hereinafter to be referred to as the impugned Act, was ultra vires because it contravened the provisions of Section 299, Government of India Act, 1935, that under the provisions of the impugned Act when the plaintiffs' private forest and areas covered by the notifications made thereunder amounted to 4 acquisition of property of the plaintiffs, and as the impugned Act did not provide for compensation, the provisions of Section 299, Government of India Act, 1935, had not been complied with, and therefore, the impugned Act was ultra vires. Even if Notification No. 110-LR/ZAN, dated 6-9-1952, made under the provisions of the Bihar Land Reforms Act (Bihar Act 30 of 1950), vested the properties of the plaintiffs mentioned therein in the State, the plaintiffs were entitled to the money received by the defendant from January 1948 to Sept. 1952, because the impugned Act was ultra vires, and the defendant had wrongly taken over the properties in suit under the provisions of the impugned Act. Mr. De further contended that as sixteen annas interest in village Aloudia and eight annas interest in village Bhang of plaintiff 1 were debattar properties belonging to the deity, they could not vest in the State of Bihar under the Bihar Land Reforms Act having regard to the provisions of that Act. Mr. De argued, in the alternative, though it is no part of the reliefs claimed under the plaint, that the impugned Act was ultra vires having regard to the observations of the learned Judges in the case of 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB). The provisions of the impugned Act imposed unreasonable restrictions upon the right of the plaintiffs to hold properties as guaranteed by Article 19 of the Constitution of India. On behalf of the defendant it had been urged that the provisions of the impugned Act did not amount to acquisition of any property of the plaintiffs. Consequently, the provisions of Section 299, Government of India Act. 1935, had not been contravened. Even though sixteen annas in village Aloadia and eight annas in village Bhang belonging to plaintiff 1 be 'debattar' property, the provisions of the Bihar Land Reforms Act did empower the State of Bihar to vest in itself such properties if such properties were notified under the provisions of that Act. It was further contended on behalf of tbe defendant that even if the plaintiffs be allowed to raise the question which had not been raised in their plaint that the provisions of the impugned Act imposed unreasonable restrictions upon the right of the plaintiffs to hold proper-ties under Article 19 of the Constitution of India, the provisions of the impugned Act, in fact, did not impose any unreasonable restriction. The impugned Act had been enacted with respect to item No. 22 of the Provincial Legislative List in the Seventh Schedule of the said Act. With respect to the subject of item No. 22 of the said List, viz., forests, the Provincial Legislature had plenary powers of Legislation and so far as the provisions of the Government of India Act, 1935, were concerned, entirely unrestricted, save and except the provisions of Section 299 of the said Act. So far as the relief claimed for monies received by the defendant from January 1948 until September 1952, that question could only arise if the impugned Act were declared ultra vires and the defendant was found to have taken over the properties in suit unlawfully.;


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