- (1.) This is an appeal by special leave from an order of the Board of Revenue, Bihar State, by which the orders of the Commissioner and the Settlement Officer relating to certain lands which had been taken on lease by the appellant from the Midnapur Zamindari Company Ltd. to be affirmed. By an indenture of lease dated June 27, 1942, the appellant took from Midnapur Zamindari Company Ltd. a lease in perpetuity on payment of a premium of Rs. 5952-2-0 a block of land including a parcel of 6.47 acres in Mauza Khokhro within the old survey plot Nos. 462 and 465 Khata No. 45, Thana No. 323 in district Hanbhum. Under the terms of the said lease the appellant was entitled, interalia, to erect and construct buildings, outhouses, garages etc., to plant trees and lay-out gardens, play-grounds and dig wells and do all other acts and things necessary for using the land for the persons residing in those buildings and houses. In the settlement proceedings which took place later the demised portions of old plot No. 462 were entered as plot No, 859 and portions of the old plot 865 were entered as survey plot Nos. 860 and 861. These plots were shown in the name and possession of the appellant. On April 29, 1953 a notification was issued by the Governor of Bihar in exercise of the power conferred by Section 29 of the Indian Forest Act 1929, hereinafter called the "Forest Act'. According to this notification, forest land and waste land in the district of Hanbhum specified in the schedule given in the notification were to be called "protected forest." The following portion of that notification may be reproduced:-- "The nature and extent of the rights of Government and private persons in or over the forest lands and waste lands comprised in this notification have not yet been enquired in to and recorded as laid down in sub-section 3 of the Sec. 29 of the said Act, but the State Government think that such enquiry and record will occupy such length of time as in the mean time to endanger the rights of Government and the enquiry and record of rights will hereafter be made. This notification is issued of subject to all ex(sic) rights of individual or communities." It appears that the enquiry contemplated by the notification with regard to tbe existing rights of individuals or communities has either not taken place or has not yet been completed. On or about December 6, 1961 the Settlement Officer, Singhbhum, suo motu purported to invite objections regarding the entries in the record of lights relating to the aforesaid land in possession of the appellant. On March 21, 1963 the Settlement Officer passed an order that the plot should be recorded in the name of "Bihar Sarkar Forest Department". It was further directed "the possession of the Tata Steel Co. Ltd should be recorded in respect of the house standing on plot No. 860 in Col. II which is the admitted case of both the parties." The entries were ordered to be corrected accordingly. The appellant preferred an appeal under the provisions of the Chhota Nagpur Tenancy Act 1908, hereinafter called the "Tenancy Act", which was disposed of by the Commissioner of Chhota Nagpur Division on September 16, 1963. He held that the appellant was not in cultivating possession of the plot in question which were not being used for agricultural purposes As such the settlement between the appellant and the Midnapur Zimindari Co Ltd amounted to an encumberance within the meaning of Section 4(a) of the Bihar Land Reforms Act, 1950, called the "Reforms Act". The State Government was, therefore, justified in including the plots in the notification issued under Section 29 of the Forest Act and the Settlement Officer had rightly recorded them as belonging to and in possession of the Forest Department.
(2.) The appellant took the matter in revision before the Board of Revenue. In the grounds of revision it was pointed out that the notification which had been issued under the Forest Act had not been followed by any action or notification under Section 30 nor had any demarcation of the plots been made. Moreover the notification itself made it clear that the rights of private parties were to be determined by means of a proper enquiry. The notification could not, therefore, extinguish or affect the rights of the appellant nor could it establish that the State was in khas Possession of the land in question. It was firmly maintained by the appellant that the Commissioner could not have given any decision in respect of the nature of the rights of the appellant. The question of the title could be decided not by the Settlement Officer or by the Commissioner in the proceedings which were taken but it was the Land Reforms Department which alone had the jurisdiction in the matter. The Board of Revenue called for a report with regard to the plots and made it clear that the mam dispute related to plot No. 861 only. Apart from the other contentions which were raised before the Board it was argued that although the proprietary rights passed to the Government under the Reforms Act, the lease-hold rights were not extinguished and continued to vest in the appellant. An alternative contention was raised that even if the appellant was considered to be a tenure-holder it was entitled to retain the land as a statutory raiyat under Section 5 of the Reforms Act. The Board examined the question of the lease being regarded as an encumberance which was liable to be annulled under Section 4(a) of the Reforms Act after the issuance of the notification under Section 3 or Section 3A of that Act. The orders of the Settlement Officer and the Commissioner were affirmed by tt.e Board of Revenue on the ground that plot No. 861 had been correctly entered in the name of the Government.
(3.) In order to dispose of the contention raised before us on behalf of the appellant the relevant provisions of the Forest Act may be noticed. Section 29 empowers the State Government to declare by means of a notification that the provisions of Chapter IV would be applicable to any forest land or waste land which is not included in a reserved forest but which is the property of the Government or over which the Government has proprietary rights etc. The forest lands and waste lands comprised in any such notification are to be called "protected forest" No notification is to be made unless the nature and the extent of the rights of Government and of private persons in or over the aforesaid lands have been enquired into and recorded at a survey or settlement or in such other manner as the State Government thinks sufficient. Every such record has to be presumed to be correct until the contrary is proved. The State Government can, even before this is done, declare the lands to be protected forest pending such enquiry but the existing rights of individuals or communities cannot be affected or abridged by such a declaration. Section 30 provides, interalia, that the State Government by notification, can declare that any portion of the forest specified in the notification shall be closed for such term not exceeding 30 years as the State Government thinks fit. The rights of private persons, if any, over such portion would be suspended during such term if certain circumstances given in the section exist. The notification which was issued in the present case on April 29, 1953, made it quite clear, as has been observed earlier, that it was being issued subject to all existing rights of individuals or communities because the rights of Government and private persons in or over the forest and waste lands had not yet been inquired in to and recorded as laid down in Sub-section (3) of Section 29 of the Forest Act,;