A.N.MULLA, J. - (1.) MATRU Khan applicant has been convicted under Section 26 read with Section 5 of the Indian Forest Act and has been sentenced to a fine of Rs. 500/ -, in default 1 1/2 months' rigorous imprisonment. The appellate court also awarded a compensation to the Forest Department and directed the applicant to pay a sum of Rs. 2500/ -.
(2.) THE counsel for the applicant has raised two contentions before me, In the first place he contended that since no notification under Section 20 of the Indian Forest Act was passed in this case the tract of land from which the trees were cut away had not been declared to be a. reserved forest. In support of this contention he also drew my attention to the fact that the acts which are made penal in respect of the reserved forests are different from the acts which are made penal in respect of those forests about which only a notification under Section 4 of the Indian Forest Act has been issued. It seems that the State before it can declare any area as a reserved forest had to make two notifications. The first notification is to be issued under section 4, which may be described as a proposal for declaring a particular area as a reserved forest. After this notification is issued, claims are considered and decided and finally a second notification is issued under Section 20 when that area is finally notified as a reserved forest. It seems that unless an area is declared a notified reserved forest, the only penal provision that exists in the Indian Forest Act is contained in the first part of Section 26. This penal provision is as follows : "26. (1) Any person who : (a) makes any fresh clearing prohibited by Section 5, or (b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest; " The subsequent part of Section 26 deals with those acts which are prohibited in a reserved forest. This is admitted by the counsel for the State that no notification under Section 20 was issued in this case and only a notification under Section 4 was issued. I have, therefore, to see whether the conduct alleged against the applicant falls under sub -section (a) above, for obviously sub -section (b) has no relevance.
(3.) IN deciding this question it would be better to cite Section 5 of the Indian Forest Act. Section 5 runs as follows : "After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such light was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf," The contention of the counsel is that even if the allegation made by the prosecution is correct and the applicant cut away some trees from a portion of this area and only stumps were left behind, it does not come under the, words making a fresh clearing and, therefore, the penal provisions of section 26 cannot be applied to the conduct of the applicant. The counsel also drew my attention to the meaning of the word 'clearing' given in the Chambers Twentieth Century Dictionary. According to this Dictionary, 'clearing' has the following meanings : "1. The act of making clear : 2. a tract of land cleared of wood etc. for cultivation; 3. Method by which bankers exchange cheques and drafts, and arrange the differences;" The argument before me is that unless there is evidence to prove that the act of clearing was for the purpose of cultivation it cannot be said that the cutting away of some trees was an act of clearing. I have given full consideration to the argument advanced before me, but I am unable to accept it. I will now give my reasons for finding this argument to be untenable. In the first place the procedure mentioned above indicates that any tract of land cannot be immediately declared to be a reserved forest. A proposal has to be made first and a notification issued on that point and subsequently after an appreciable lapse of time that tract of land can be declared to be a reserved forest. The State, therefore, cannot come into possession immediately and there would always be a short or a long interval in which others come to know that the State intends to take possession of this tract. They would thus have plenty of time to defraud the State of the trees which are standing on that area. The State represents the community and, therefore, any interpretation of a law which permits an individual with criminal designs to defraud the community for his own personal gain cannot be given to the words of the statute unless the words leave no other option and this is the only meaning which can be given to those words. Where more than one interpretation is possible the interpretation which is in consonance with the spirit of the enactment or also in consonance with the welfare of the community should be preferred to that interpretation which endangers the welfare of the community. I have, therefore, to interpret the word 'clearing' used in sections 5 and 26 of the Indian Forest Act in this background.;