- (1.) THIS is an application by petitioner Jaikishan Das under Art. 226 of the Constitution of India.
(2.) THE petitioner has related a long woeful tale covering a period of about 11 years showing his rights have been encroached upon by one authority or the other at different times. He has stated that he is a forest contractor and that he took the private forest of zamindars of village Khoh (Alwar State) on lease in 1947 for 4 years on payment of Rs. 4000/- to them. In lieu of the said consideration, the zamindars executed in his favour a lease-deed on the 3rd of August 1947, and handed over to him the possession of the forest known as Khoh. He has produced a copy of the said lease deed and it has been marked as Ex P. T. THEn, he proceeds to say that according to certain private-forests-rules which were in force in the erstwhile Alwar State, it was necessary to obtain permission of the Government before cutting the forest and therefore he applied for the required sanction. He was able to get the desired permission from the Matsya Government after a long time on 12. 1. 49. THEreafter, the Administrator of the Matsya State restrained him from cutting the forest in August, 1949, on the basis of some complaint made to him. THE petitioner made a representation against the said order. Before it was decided, the Matsya State merged in the State of Rajasthan. His case remained pending and after about 7 years, the Government of Rajasthan decided on 28. 2. 56 that he had a right to exploit the forest Khoh under the rules in force in the former Alwar State. At the same time, the Government imposed upon him certain terms to be observed for cutting the forest. He has produced a copy of the said order of the Government and the terms imposed upon him and they are respectively marked as Ex. P. 2 and Ex. P. 3. He says that after the said order of the Government was passed, the zamindars executed in his favour another lease-deed 1 x. P. 4 on 4th March, 1956, for cutting the said forest for 10 years. THEreafter, he started cutting wood from the forest from April, 1956, but the Forest Department put many hurdles in his way and lodged complaints with the Government. THE Government was however pleased to pass an order (Ex. P. 5) on the 5th of June, 1956 and he was permitted to exploit the forest, subject to certain conditions mentioned therein. THEreafter, the petitioner executed an agreement in favour of the State of Rajasthan on 6th November, 1956. It is marked as Ex. P. 6. He goes on to say that when he started working the forest again, certain, residents of Khoh village, who claimed to be Biswedars, brought a declaratory suit against him in the court of the Civil Judge, Alwar, with a further prayer that the petitioner be restrained from cuting the forest. THEy managed to get from the court an ad-interim injunction but the learned Judge vacated the same by his order dated the 5th May, 1955 (Ex. 7 ). Even then, certain interested persons initiated against the petitioner proceedings under Sec. 145 Cr. P. C. in the court of Magistrate First Class Alwar. That petition was dismissed on 11th March, 1958 by the Magistrate's order (Ex. P. 9 ). THE persons interested against him then moved the Collector, Alwar, who directed him to stop working the forest without giving him any notice. Against this order, he had to file a writ petition in the High Court, but before it was heard, the Collector, himself vacated his previous order by a subsequent order dated the 18th April, 1958 (Ex. P, 10 ). THE petitioner then started working the jungle from 18. 4. 58. But, this time, the Chief Conservator of Forests issued certain instructions to his subordinates to stop the petitioner from exploiting the forest. THE petitioner was able to satisfy the Chief Conservator of Forests by showing him, Ex. P. 6 and so he withdrew his order by Ex. P. 11 Hated the 6th May, 1958. THEn, all of a sudden the petitioner received an order from the Ranger Rajgarh Range, on 31st May, 1s58 to stop the cutting of the Khoh forest immediately. This order was given by the Ranger in pursuance of the order of the Deputy Secretary to the Government of Rajasthan in the Revenue Department No. 9832/f. 1 (78) F. G. R. 189 dated 23rd May, 1958. He has produced copies of both the orders and they are marked as Ex. P. 12 and Ex. P. 13. It is the validity of these last orders, Ex. P. 12 and Ex. P. 13, which he has challenged in this Court. It is urged by the petitioner that before issuing the said order, Ex. P. 13, the Government of Rajasthan did not serve him with any notice of its intention to stop working the forest; nor did it supply to him a copy of any complaint, if any, received against him. It is contended that the order of the Dy. Secretary (Ex. P. 13) is illegal, that it encroaches upon the fundamental rights of the petitioner to hold and dispose of the property which he is enjoying under a lease from the zamindars. It is further urged that the Government has no authority under any law to use its police power to stop him from working the forest and that the said unlawful interference by the Government has had the effect of depriving him of his property, which he was holding under a valid lease. He has, therefore, prayed for a writ or order quashing the impugned orders, Ex. P. 12 and Ex. P. 13 as being illegal and for a direction restraining the respondents from interfering with his right to work out the Khoh forest in accordance with terms of the lease and the agreement entered into with the Government. It would appear from what has been stated above that although the petitioner has given a long history of his case in order to impress upon the Court in what manner he has suffered for about one decade, the main point for determination is whether the legal rights of the petitioner have been infringed by order Ex. P. 13. It may be pointed out that Ex. P. 12 has been passed only in compliance with Ex. P. 13 and therefore its validity would automatically depend upon Ex. P. 13. On behalf of the non-petitioners, i. e. the State of Rajasthan, the Chief Conservator of Forests for Rajasthan, the Conservator of Forest E-Circle, Kotah, the Divisional Forest Officer, Bharatpur and the Ranger of Rajgarh Range, Alwar district, a joint reply has been filed. In that reply, an attempt has been made to justify the past action taken by various authorities against the petitioner, but it is not at all necessary for this Court to enter into the question whether those actions against the petitioner were justified or not. It is only one out of those objections which needs to be referred at this place. It has been stated in the reply of the non-petitioners that they did not admit the delivery of possession of the forest Khoh to the petitioner, in pursuance of his lease agreement with the zamindars. It has been averted that the possession of the forest in 1940 was with the Forest Department, since the forest in dispute was a protected forest under the Alwar Government Notification No. 11 dated the 21st of May, 1940, published in Alwar State Gazette No 23 of the 3rd June, 1940. It was not clearly stated by the non-petitioner if the forest in dispute was in the possession of the State before the impugned order dated 23. 5. 58 (Ex. P. 13) was passed. The above reply was given in vague terms just to cast a cloud on the right of the petitioner relating to the possession of the disputed forest. It was urged by Mr. B. C. Chatterji appearing on behalf of the non-petitioners at the time of arguments, that the petitioner should be directed to file a regular suit for declaration of his right to possess and cut the forest. But, in our opinion, this objection ought not to have been raised when the non-petitioners did nor challenge the correctness or legality of the order of the Forest Minister dated 24. 2. 56 (Ex. P. 16) on which Ex. P 2 is based. Ex. P. 16 is a detailed order of the Forest Minister of the Government of Rajasthan dated 24. 2. 56. It shows that the Minister after looking into all the record had come to the conclusion that the disputed forest was that of zamindars, that it was at one time taken by the Alwar State into its possession, but it was restored to the possession of the zamindars in the year 1935 A. D. Thereafter, there was a proposal to keep it as a protected forest, but no such orders were eventually passed. It was, therefore, held by him that the forest belonged to the zamindars, that it was not a protected area, that the complaint made against the petitioner was wrong and that he agreed with the orders which were passed by the Development Minister of the Matsya State. In the end, the Hon'ble Minister passed an order directing that the petitioner be permitted to cut the forest, but the cutting should be done in 10 years according to the law in force. It is crystal clear from this order that on the 24th February, 1956, the Government of Rajasthan admitted in unequivocal terms that the disputed forest was the private forest of the zamindars of village Khoh, that it was not a protected forest, and that the petitioner had a right to cut the same according to his lease agreement. The only restriction which was imposed upon the petitioner was that the forest would be divided into 10 coupes, that he would cut only one coupe in one year, that he would not cut the same coupe for the second time and thus he would be able to cut the trees within a period of 10 years. It was in pursuance of this decision on the Forest Minister that the Revenue Secretary to the Rajasthan Government wrote to the Collector vide Ex. P. 2 dated the 28th February, 1956, intimating the Collector, Alwar, of the operative part of the above decision. Mr. B. C. Chatterji has not been able to point out to us any subsequent order of the Government revoking the decision of 24th February, 1956 (Ex. P. 16) or acquiring the forest in dispute. Under these circumstances, it was not proper on the part of the non-petitioners or their learned counsel to urge that the present application should be dismissed and that the petitioner should be directed to first establish his right to possess or cut the forest in a civil court. Regarding Ex. P. 12 and Ex. P. 13, it has been admitted by the non-petitioners that Ex. P. 13 was passed without giving any notice to the petitioner and that Ex. P. 12 proceeds on the basis of Ex. P. 13. It has been stated in the reply that numerous complaints were received against the petitioner. One complaint Ex. 4 has been produced and it is pointed out that on this complaint, an inquiry was made and an inspection report Ex. 5 was made by the Sub-divisional Forest Officer, Alwar on 3rd May, 1958, It has also been stated that the petitioner had made breach of his agreement and since those breaches substantially affected the interest of the State it was found necessary by the State authorities t6 stop the petitioner from working the forest. It was open to the petitioner to move the Government and convince it that there was no violation of the terms of the agreement on his part. It is further urged that the petitioner had an alternative remedy by way of suit in regular civil courts if he did not want to approach the Government and this Court should not exercise its extra-ordinary jurisdiction since no fundamental right or legal right of the petitioner has been infringed. The first question which now calls for determination is whether any legal right of the petitioner has been encroached upon by the non-petitioners and, if so, whether we should exercise our extra-ordinary jurisdiction or leave the petitioner to seek the alternative remedy by way of suit. We have already pointed out above that Ex. P. 16 and P. 2 make it quite clear that the petitioner is holding a tease of private forest from the zamindars of village Khoh and that position has been recognised by the Government by the said orders. It cannot be gainsaid that the petitioner has got the rights and interests of a lessee in the property, namely, the forest. It has not been denied by the non-petitioners that the petitioner was in actual possession of the said property at the time when order Ex. P. 13 was passed Art. (19) (1) (f) of the Constitution of India provides that all citizens have a right to acquire, hold and dispose of property. Art. 31 (1) of the Constitution further provides that no person shall be deprived of his property save by authority of law. It is quite clear from the above provisions that the State of Rajasthan had no authority to deprive the petitioner of his property save by the authority of law, nor could his right to hold and dispose of the property be taken away arbitrarily. The petitioner has stated in his rejoinder which is supported by an affidavit on oath, that he had not made any breach of the agreement, that he was not even informed of the complaint Ex. P. 4 about which he has come to know for the first time after the reply of the non-petitioners, that no inquiry was made in his presence, that he was not given any notice, that the allegations made against him were baseless and that the State has mis-used its power. He has also pointed out that he had written to the Sub-divisional Forest Officer vide Ex P. 18 dated the 5th July, 1938, that he was wrongly stopped from working out the jungle and deprived of his possession over it by appointing a guard at that place. It is thus clear from the petitioner's rejoinder that he has been deprived of his possession over the disputed property as also of his rights and interests therein. It is therefore, in-cumbent upon the non-petitioners to show that they have proceeded to take action against the petitioner by some authority of law. It is not sufficient for them to say that the petitioner should move the Government to reconsider its order or that be should exercise his alternative remedy by way of suit. Ex. P. 19 shows that the petitioner was restrained by the Administrator Matsya from working out his forest in August, 1949, even though permission was earlier given to him by the Matsya Government on 12. 1. 49. It was after about 7 years that the Government of Rajasthan gave a decision is his favour on 24. 2. 56 (Ex. P. 16 ). Then Ex. P. 7 and P. 9 further show that the petitioner has already been through civil and criminal courts. Under these circumstances, a still heavier duty is cast upon the non-petitioners to show by what authority of law order Ex P. 13 has been passed against the petitioner. His fundamental right to hold and dispose of the property has certainly been infringed and there is no justification in the contention raised by the non-petitioner that we should not exercise out extra-ordinary jurisdiction and drive the petitioner to have another round of his alternative remedy by way of a regular civil suit. 8 We have now to see whether the petitioner has been deprived by the non-petitioners of his possession over the disputed property by any authority of law. Learned Assistant Government Advocate has urged that the Government has the authority to exercise its control even on those forests and lands which are not the property of the Government. He has referred to sec. 35 of the Rajasthan Forest Act (Act no. 13 of 1953) which will be referred hereafter as the Act. He also urged earlier that the Government had similar powers under the law, which was prevailing in the former State of Alwar. So far as the Alwar Forest Regulation II of 1935 is concerned, it would suffice to say, that sec. 88 of the Act repealed the same and it was no longer in force after 1. 6. 53 when the said Act came into force. We have now to see if sec. 35 of the Act helps the non-petitioners. 9- Sec. 35 of the Act runs as follows : - "protection of forests for special purposes : - (1) The Government may. by notification, in the Rajasthan Gazette, regulate or prohibit in any forest or waste land : (a) the breaking up or clearing of land for cultivation. (b) the pasturing of cattle; or (c) the firing or clearing of the vegetation; (d) the unregulated felling of trees; when such regulation or prohibition appears necessary for any of the following purposes : - (i) for protection against storms, winds, rolling stones and floods; (ii) for the preservation of the soil on the ridges and slopes and in the valleys of hilly tracts, the prevention of landslips or of the formation of ravines and torrents or the protection of land against erosion or the deposit thereon of sand, stones, or gravel; (iii) for the maintenance of a watersupply in springs, rivers and tanks; (iv) for the protection of roads bridges, railways and other lines of communication. (v) for the prevention of the public health; (vi) for the prevention of denundation of forest. (2) The Government may for any such purpose construct at its own expense, in or upon any forest or waste land, such work as it thinks fit. (3) No notification shall be made under sub-sec. (1) nor shall any work be begun under sub-sec. (2), until after the issue of a notice to the owner of such forest or land calling on him to show cause, within a reasonable period not exceeding one month to be specified in such notice, why such notification should not be made or work constructed as the case may be, and until his objections, if any, and any evidence he may produce in support of the same, have been heard by an officer, duly appointed in that behalf and have been considered by the Government. It is clear from a perusal of this above section that it no doubt gives to the Government, control even over those forests which are not its property and it can pass regulatory and prohibitory orders for certain purposes detailed therein. But it is clear at the same time that before exercising such power, the Government has got to issue a notification. Then, sub-sec. (3 clearly provides that no notification shall be made under sub-sec. (1) nor shall any work be commenced under sub-sec. (2 ). so long as a notice is not issued to the owner of the forest concerned requiring him to show cause within a reasonable period not exceeding one month, which has to be specified in the said notice, as to why such notification should not be made or work constructed as the case may be. It further enjoins that before making a notification, the objection of the person against whom notice has been issued must be considered by an officer duly appointed in that behalf by the Government. The officer must give to the said person an opportunity to produce evidence in support of his objection and then he should be given a hearing before it is decided. We gave time to learned Assistant Government Advocate to point out if any notification under sec. 35 of the Act was made by the Government in respect of the forest in dispute. We have been informed by him that he has not been able to lay his hands on any such notification. It is therefore obvious that the non-petitioners cannot justify the order Ex. P. 13 on the basis of sec. 35 of the Act. Learned Assistant Government Advocate has not been able to point out any other authority of law to support the action taken by the non-petitioners. He has, however, urged that the petitioner himself had entered into an agreement with the Government of Rajasthan (vide Ex. 6) and that under the said agreement, the Government had authority to pass the impugned order. The next question which therefore arises for our determination is whether any such power has been given to non-petitioners under Ex. P. 6. Learned Assistant Government Advocate has urged that we should not decide this point in our extraordinary jurisdiction and that the petitioner should be left to get it decided in a regular civil court. It may be observed that this objection is not tenable and it ill-behaves the non-petitioners even to raise it, the more so, because the petitioner has stoutly denied the non-petitioners' authority to pass such an order even under the agreement. We have carefully gone through Ex. P. 6. It is a long document covering 6 pages and we gave an opportunity to learned Assistant Government Advocate to point out under which item he wanted to justify the order Ex. P. 13. He first referred us to clause (3) which runs as follows - "khilaf warji shart haja ka notice Range Officer dwara deea jane par under miyad do saptah thekedar ko thoonthon ki trandurusti karana hoga varna Sub-divisional forest officer ko akhtiyar hoga kijab tak thekedar dwara thoonthon ki tandurusti na ho kam katai ya nikasi mal ya donon bund ker deve and thoonthon ki tandurusti mahkme dwara tali karali jave jiska kul kharcha thekedar ko ada karna hoga ya chothan ya jamanat se vaja kar liya javega aur yah kharch thekedar ko ander ek hafta jame karaua hoga varna nikasi wa katai bund rahegi". A perusal of the above term shows that the forest contractor was required to dress up stumps of trees within two weeks on a notice being received by the Range Officer and if he failed to carry out that direction, then the Sub-divisional Forest Officer was authorised to get it done departmentally and to stop the contractor from cutting the trees or taking them away. In our opinion, this term does not apply to the present case, because it has not been stated by the non-petitioners that any notice was given to the petitioner by the Range Officer and that he failed to carry out the directions given in that notice. The non-petitioners referred to numerous complaints in their reply, but it is significant that only one complaint Ex. 4 was produced. This complaint also appears to have been made by one Hafiz Munna and Hafiz Barkat resident of Ajmeri Gate, Jaipur. It does not show how they were interested in the matter. No notice of that complaint was given to the petitioner. The non-petitioners have no doubt referred to Ex. 5, i. e. the inspection note of the Sub-divisional Forest Officer, but this inspection was also made in the absence of the petitioner. Thus, the requirement of the above mentioned term was not fulfilled by the non-petitioners themselves and under these circumstances, they cannot justify their action under the same. We have also been referred to clause 21 of the agreement, but in our opinion it also does not advance the argument of the learned Assistant Government Advocate. In this clause it was provided that the contractor would be responsible for any loss to the forest caused by him or his agents or labourers and that if he would commit the breach of any of the terms of the agreement, the Divisional Forest Officer would take action against him and that action would be forfeiture of the chothan amount deposited by him partly or in full. In the present case, the Divisiona1 Forest Officer has not taken any action against the petitioner for breach of any of the terms of the agreement, nor has he proceeded to forfeit the amount of chothan to any extent. Learned Assistant Government Advocate has thus not been able to justify Ex. P. 13 with reference to any law or the term of the agreement between the parties. We therefore find it impossible to maintain Ex. P. 13 or Ex. P. 12 which is based thereon. The writ application is therefore allowed and the orders Ex. P. 12 and P. 13 are hereby quashed. The petitioner will receive his costs from the non-petitioners. .;