State vs Hira Lal

R. Dayal, J.—This is a Government Appeal against the acquittal of Hira Lal of an offence u/s 33 of the Indian Forest Act (XVI of 1927) by the Additional Sessions Judge of Kumaun who set aside the order of conviction by a Judicial Magistrate of Lansdowne.

Hira Lal, opposite-party, constructed a house on a portion of plot No. 288 which was a Qaisar-e Hind plot. Rule 6 of the Rules made by the Governor in 1939 and notified in Notification No. 357/ XIV-1928, dated, the 3rd August, 1939, and published in the Government Gazette of U.P., dated the 5th August, 1939, Part I-A, at page 249, is:

No building shall be erected on unmeasured land without the permission of the Deputy Commissioner.

These rules were made under Sections 30 and 32 of the Forest Act. Hiralal was prosecuted because he made these constructions without the permission of the Deputy Commissioner. His defence was that the shop was constructed by his father who died in 1939. This defence was not believed.

The relevant portion of Section 30, Clause (r) of the Forest Act is:

The Provincial Government may by notification in the official Gazette prohibit from a date fixed as aforesaid the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.

Section 33.-The relevant portion of Section 33, Sub-section (1)(c) is:

Any person who commits any of the following offences, namely, contrary to any prohibition u/s 30 breaks up or clears for cultivation or any other purpose any land in any protected forest, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both.

It is clear that the prohibition about erecting any building ordered under Rule 6 mentioned above does not come within the powers given to the Provincial Government u/s 30, Clause (c) and that even if such a power can be deemed to come u/s 30, any contravention of the rule does not make out any offence u/s 33. No other clause of Section 33, Sub-section (1) except Clause (c) can have any bearing on this question and even Clause (c) refers to the breaking up or clearing for cultivation or any other purpose of any land in any protected forest contrary to any prohibition u/s 30. The construction of a house by itself does not come within the expression of breaking up or clearing land.

There was no allegation against the applicant that he had cleared up or broken land. There was no evidence about it. The opposite-party was not questioned about it by the learned Magistrate. On the other hand, the evidence on the record makes it quite possible that the land of plot No. 288 was actually broken up or cleared by Ram Dayal, father of the opposite-party.

Narain Singh, P.W.1, deposed that plot No. 288 had kachcha terrace walls and that in the last settlement which took place in 1940 the accused prepared plot No. 288 for cultivation but crop was not sown.

Dayanand, Patwari, deposed that towards plot No. 289 there was a fencing of bushes running to some length of edge of plot No. 288 and that the growth of fencing appeared to be seven or eight years'' old. His statement that plot No. 288 had No terrace is not consistent with the statement of Narain Singh.

Kripal Singh, P.W.3, supports Narain Singh''s statement that plot No. 288 had terrace walls towards old shop which is on plot No. 287 and that the accused had laid a banana plantation long ago over a small part of plot No. 288.

Maniklal, D.W. 1, deposed that a cactus fence, Singwari and Anand fence surrounded the land.

In view of this statement it is quite possible that the land had been cleared and broken up by Ram Dayal, father of the accused, and that the accused himself did not commit any offence u/s 33 in connection with the clearing and breaking of land.

Further the rule about not constructing the house without the permission of the Deputy Commissioner does not appear to come under any of the provisions mentioned in Section 32 with respect to which the Provincial Government could make rules. It might have come under the provisions of Clause (k) of that rule which gives the Government power to make rules to regulate protection and management of any portion of the forest closed u/s 32. There is nothing on the record to show that plot No. 288 lies in any such closed area of the forest.

The learned Deputy Government Advocate has been unable to show us any notification u/s 30 declaring that any portion of the forest would be closed for a certain term. It follows, therefore, that this Rule 6 in its general form cannot be said to be framed within the rule-making power of the Government u/s 30 or Section 32 of the Forest Act.

The result is that the opposite-party cannot be held guilty of contravening any rule made u/s 32 of the Forest Act.

In view of the above we are of opinion that Hiralal has been rightly acquitted of the offence u/s 33 of the Forest Act. We, therefore, dismiss the appeal.