P L D 1953 Lahore 329 (PLP)

KAIKAUS, J.‑--Ghulam Muhammad, defendant No. 2 in the suit out of which this regular second appeal arises, is the owner of a large area of waste land situated in village Thamewali, Tehsil and District Mianwali, in which the residents of Thamewali, Nawan, Saluk and Jhor villages have rights of grazing etc. Disputes having arisen with respect to the exercise of these rights, fourteen residents of these villages filed a suit (not the present suit) against Ghulam Muhammad with respect to an area of 7313 acres 4 kanals and 14 marlas out of this land, seeking permanent injunction restraining him from interfering with their rights to graze their cattle in, and cut grass and wood from, tile area in suit. This suit was decreed on the 24th February, 1944, Ghulam Muhammad filed an appeal to the High Court. On the 6th December, 1946, Cornelius, J. affirmed the lower Court's decree with the qualification that the plaintiffs were liable to pay firni though its payment was not a condition precedent to the exercise of the rights. Ghulam Muhammad, it seems, did not let grass grow under his feet. He applied to the Provincial Government under section 38 of the Forest Act, which enables a private owner to get his land managed by the Provincial Government, and as a result there appeared on the 20th January, 1947, these notifications in the Punjab Gazette, Nos. 194 195 and

196. By notification No. 194, an area of 3399 acres and 12 marlas of land situate in. village Thamewali was declared a ` protected forest' and sections 30, 32, 33, 34 and 68 of the Act were applied to it. By notification No. 195, the whole of this area was declared ` closed ' under section 30 (b). By notification No. 196, certain rules were framed with reference to sections 30 and 32 of the Act. These rules prohibited grazing absolutely and placed certain restrictions on cutting of grass and trees. On the 18th November, 1948 the present suit was filed. The plaintiffs are three persons suing in a representative capacity on behalf of the residents of villages Thamewali, Nawan, Saluk and Jhor. Defendants are the Provincial Government and Ghulam Muhammad. The plaint refers to the previous suit against Ghulam Muhammad and says that the area now in dispute is out of the area in dispute in the previous suit. The allegations are that the residents of villages above mentioned have, as recorded. in the Wajib‑ul‑arz and settlement record of 1878, rights of grazing their cattle in, and taking away head loads of grass and fuel wood from, the area in dispute, which rights are established by decree and cannot be defeated by notification No.

194. The reliefs claimed are a declaration as to the existence of the rights and the invalidity of notification No.

194. The defendants in their reply have denied the rights alleged by the plaintiffs but have asserted, at the same time, that there was a large area of land belonging to Ghulam Muhammad which was sufficient and convenient for the exercise of the rights claimed. It has been objected that without attacking notifications Nos. 195 and 196 the suit cannot proceed. There is also a plea that the suit does not lie in the declaratory form because consequential relief is open. Other technical objections have been taken which are no longer material. The learned Subordinate Judge, who tried the suit, dismissed it in the first instance on the ground that the Government have a statutory right to declare the land a protected forest and a suit for mere declaration was incompetent. Learned District Judge, Mianwali, on appeal, remanded the suit with a direction that the question whether the area not included in the notification was sufficient and convenient for the exercise of the plaintiffs' rights (this being a condition of closing the forest under section 30 (b) of the Forest Act) and also for a reconsideration of the issue as to the maintainability of a suit for a declaration with reference to the effect of the previous suit for injunction. The learned Subordinate Judge found on remand that the area, which had been left over for the exercise of the plaintiffs' rights, was sufficient as well as in a locality reasonably convenient for the exercise of the plaintiffs' rights and, therefore, the notification impeached was valid. He held further that the Government did not stand in the shoes of Ghulam Muhammad defendant and were not bound by the decree for injunction already obtained by one of the plaintiffs in the suit against Ghulam Muhammad. He found also that the suit in the form in which it yeas filed was incompetent. On appeal the learned District Judge set aside the learned Subordinate Judge's finding as to the area not taken over by Government being sufficient and convenient for the exercise of rights. He found also that the Government was bound by the decree in the previous suit and, therefore, a suit for mere declaration lay. Accepting the appeal, he decreed the suit. Government has filed this second appeal. Before us learned counsel appearing for the appellants attacks the finding of fact of the learned District Judge on the ground that he has failed to consider important evidence and in fact has misread the record. He argues too that a suit for a mere declaration is not competent. The failure of the plaintiffs to attack notifications Nos. 195 and 196 is, according to him, fatal. There is no doubt that the learned District Judge's finding on the question whether sufficient area has been left over for the exercise of the plaintiff's rights cannot be regarded as binding. He says "it was urged on behalf of the respondent, that the area left for the plaintiffs measured 13653 acres, but there is not sufficient data on the record to justify this inference". When making this observation, the learned District Judge failed to take note of the evidence of ‑D. W. 1, Ata Muhammad, Patwari of Thamewali Circle, who had given definite figures as to the total area 'belonging to Ghulam Muhammad and the area left over for exercise of the plaintiff's rights. D. W. 1 has stated that the area not taken over by the Government was 13653 acres and 13 marlas. The learned District Judge did say in the preceding part of his judgment that in the area not taken over there was scarcity of grass and fuel and it was not sufficient for grazing etc. But had he taken note of the large area left over we cannot say that his judgment would not have been influenced. When he says there is no data for the existence of this large area of 13653 acres, it does seem that he did not regard this fact as immaterial. Therefore, had the decision of the question as to the sufficiency of the area left over for the exercise of the plaintiff's right been essential, we would have had to record our own finding, But we have reached the conclusion that on account of other objections to the notifi?cations it is unnecessary to do so. The position taken up before us by the learned counsel for the appellant is not that the plaintiffs do not initially possess the rights for which they seek a declaration. He urges, on the other hand, that they possess these rights not only in the area in suit but in 13653 acres belonging to Ghulam Muhammad which area is not in suit and which is sufficient as well as in a locality convenient for the exercise of their rights. On the merits the only question that need to be considered in this appeal is how far those rights have been affected by the three Government notifica?tions mentioned above. In order to appreciate the legality and effect of the notification it will be proper to consider the object and scope of the principal provisions of the Forest Act. The main object of the Forest Act is the formation and conservation of forests and the method adopted to achieve this object is that the Provincial Government is authorised to declare any ' forest land' or ` waste land' as ` reserved' or ` protected' forest. These ` reserved' or ` protected ' forests are given certain protections by certain sections in the Act, as well as by enabling the provincial Government to frame rules with respect to then, the powers of the Provincial Government with respect to `reserved" forest being wider. These provisions are primarily intended only for forest hind or waste land which is "the property of the Government or over which the Government has proprietary rights or to the whole or any part of the forest produce of which the Government is entitled" but they can be made applicable under circumstances which will be explained later even to privately owned land. If the Provincial Government wants to declare any land a `reserved forest' it has first to publish a notification declaring its intention and appointing a Forest Settlement Office? who is to enquire into the existence, nature and extent of rights alleged to exist in favour of any person in respect of such land. The Forest Settlement Officer is an independent person for the provision is that ordinarily he should not hold any forest office. The Forest Settlement Officer is then to issue a notification inviting claims with respect to rights and to give his decision after taking evidence and examining certain records. There is an appeal provided against his decision to a Revenue Officer not below the rank of a Collector. After the rights have been determined the Forest Settlement Officer is to make an order "ensure in the continued exercise of the rights so admitted". If he finds that consistently with "the maintenance of the reserved forest" some rights cannot be exercised he is to commute such rights by payment to the persons concerned of a sum of money in lieu thereof or by the grant of land or in any other suitable manner. The procedure with respect to protected forests' is not so elaborate. Under section 29, the Government can issue a notification declaring `forest land' or `waste land' a 'protected forest' with the proviso, however, that no such notification can be issued unless the rights of private persons have been ascertained and recorded. If the case is regarded as one of emergency, the Provincial Government may issue a notification pending such enquiry but so as not to abridge or affect any existing rights of individuals or communities". Section 30 provides the powers the Government has with respect to `protected forests'. Clause (b) of this section enables the Government to close in part a protected forest and suspend private rights exercisable therein, but subject to the condition that the area not closed is sufficient and in a locality reasonably convenient for the exercise of the rights existing in the closed area. Section 32 grants power to Govern?ment to frame rules for regulating certain matters with respect to such forests. Section 33 makes the doing of certain acts in a closed forest and infringement of rules framed under section 32, offences. At the same time, it grants a power to the Government to suspend certain right in case a fire is wilfully or by negligence caused in a protected forest. Section 34 provides that no act is to be deemed prohibited by the chapter relating to protected forests which is done with the permission of the Forest Officer or in accordance with rules framed by Government or .in exercise of rights recorded under section 29 except where such rights have been suspended under section 30 (b) or the second part 'of section

33. From the foregoing provisions of the Act relating to reserved and protected forest, it will be apparent that private rights are scrupulously protected. It is only with respect to reserved forests that an exceptional power is given, in case its exercise is essential for the maintenance of the reserved forest, that the rights can be commuted into money or land etc. 1n fact the proviso about compensation makes it clearer that there is no intention to extinguish rights. The direction to the Forest Settlement Officer is that he will pass an order "ensuring the continued exercise" of rights of private persons. In the case of protected forests, when an interim notification is made under section 29, it is provided that private rights shall not be abridged or affected. Section 30 does provide that a part of the protected forest can be closed but the condition precedent is that the remaining part of the forest be sufficient as well as convenient for the exercise of the rights. The most important section, however, in respect of protected forest is section 34, which provides that nothing in the chapter would prohibit any act done "in exercise of any right recorded under section 29", except when the forest is closed or rights are suspended under section 33 on account of a fire. The effect of this section is that in spite of any rule framed by Government and in spite of section 33 (1), which creates offences, if a right is recorded under section 29, its exercise would be lawful. It is clear that so far as the land which is "the property of the Government or over which the Government has preferential rights or to the whole or any part of the forest produce of which the Government is entitled" is concerned, any rights which a person possesses in the land (and I presume they are recorded under section 29) cannot be adversely affected by the land being declared a protected forest except to the limited extent indicated above. We have now to consider the powers of the Government in respect of private land which is declared a protected forest. The relevant section is

38. It provides that an owner of land can apply to Government that his land be managed on his behalf by the Forest Officer as a reserved or protected forest, and thereupon the Provincial Government can, by notification in the Gazette, apply to it such provisions of the Act as the Provincial Government regards suitable and as are desired by the applicant. There is no indication that the position of a right‑holder can be worse in the case of privately owned land and there is no reason on principle why it should be so. With this background we will now examine the notifications. The first notification No. 194 merely declares the land in suit to be a protected forest and applies sections 30, 32, 33, 34 and 68 to it There can be no objection to its legality but it does not in any way affect the plaintiffs' rights. It is only further notifications under the sections applied that can interfere with rights. The second notification No. 195 declares the whole of the protected forest a closed area under section 30 (b). Section 30 runs as follows:‑ "The Provincial Government may, by notification in the Official Gazette‑ (a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term not exceeding thirty years, as the Provincial Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest produce in any such forest, and the breaking up or clear?ing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest." It will be observed that under clause (b), only a part of the protected forest could be declared closed. The words `such forest) in this clause, clearly refer to a protected forest mentioned in clause (a). The notification is clearly illegal, there being no authority to declare the whole area closed. The condition pre?cedent to closing of an area is that that part of the protected forest which is not closed be sufficient and in a locality reason?ably convenient for the due exercise of the rights suspended in the closed area". The whole being closed, this condition cannot possibly be fulfilled. The notification is ultra rues. Notification No. 196, it will be necessary to reproduce in full. It runs:‑ 196‑Ft.‑In exercise of the powers conferred under sections 30 and 32 of the Indian Forest Act, 1927, which have been applied to the land specified in the schedule appended to the Punjab Government notification No. 194‑Ft., dated the 25th January 1947, and of all other powers enabling him in this behalf, the Governor of the Punjab is pleased to direct that the following rules shall apply to the said lands:‑

1. No person shall cut, fell or lop any tree for any purpose whatsoever, or remove any forest produce; provided that subject to rule 3 below, the owner and right‑holders may fell and remove trees, timber or other produce for their own do?mestic and agricultural purposes at any time.

2. Subject to the approval of the Divisional Forest Officer, Jhelum Forest Division the owner may sell trees provided that the trees have first been marked by the Divisional Forest Officer.

3. No living tree standing within 30 feet of the bank of any stream or torrent bed shall be felled for any purpose what?soever.

4. No person shall herd pasture, graze or retain sheep, goats, camel or cattle on the lands specified in the Schedule appended to Punjab Government notification No. 194‑Ft., dated the 25th January 1947.

5. No person shall clear or break up land for cultivation, provided that if in the opinion of the Divisional Forest Officer, Jhelum Forest Division, the land is sufficiently protected from damage by floods and erosion, the owner and right‑holders may cultivate the land to the extent permitted by the Divisional Forest Officer.

6. No person shall cut or remove grass, sarut or kahi; provided that the owners and right‑holders may cut grass, sarut or kahi for their own use or allow its sale with the approval of and within the period allowed by the Divisional Forest Officer, Jhelum Forest Division, on the condition that the grass is cut above ground with drat (sickle) only when the seed has fallen.

7. No person shall set fire to grass, trees or timber, or kindle fire on the land without taking reasonable precautions to prevent its spreading.

8. The quarrying of stone or the burning of lime at places where such stone or lime has not ordinarily been so quarried or burnt prior to the publication of Punjab Government notifica?tion No. 194 Ft., dated the 25th January 1947, shall be regulated by the Punjab Minor Mineral Rules, published under Punjab Government notification No. 4345‑R., dated the 23rd December, 1933.

9. Income from the composition of offences, against these rules under section 68 of the Indian Forest Act, shall ‑be credited to Government. Learned counsel who appeared for the appellant, argues that though the rules contained in this notification were framed on the supposition that the area was closed under section 30 (b), (and that notification is void), such rules as can fall within the powers of the Provincial Government under sections 30 and 32 should be held valid. He admits that under section 32, rights can only be regulated and not curtailed. He accepts that rule 4 above mentioned cannot be justified. He contends, however, that the remaining rules are intra vices and should be declared valid. We will consider the effect of the rules apart from the objection that they were framed o‑n the supposition that the area concerned had been validly closed. Rule 4 having been admitted to be ultra vires, it will be observed that the only rules that can affect the plaintiffs are 1, 3 and

6. Rule 1 would not limit the plaintiffs' right but for the reference in it to rule

3. Learned counsel for the appellant regards the limitation placed by rule 3, with respect to the trees within an area of 30 feet not being liable to be cut, as a mere regulation of the plaintiffs' right. We cannot say that if trees within 30 feet are not allowed to be cut, there will still be available trees sufficient and in a reasonably convenient place for the exercise of the right of cutting fuel. The difference between regulation and abridgment of rights is that in case of regulation the full benefit of the exercise of the right still remains available to the parties, though the mode of its exercise is prescribed and to that extent limited. If ever the mode of exercise is one which causes substantial inconvenience, that fact may by itself amount to curtailment of rights. It is not shown with respect to rule 3 that it merely regulates rights and for this reason alone we would hold it beyond the power of the local Government under section

32. But we would place the case on a broader ground. We have already examined the provisions of the Forest Act to show that the intention to curtail rights is entirely absent. Section 34 which occurs in the chapter relating to protected forests runs thus:‑

34. Nothing in this chapter shall be deemed to prohibit any act done with the permission in writing of the Forests Officer, or in accordance with rules made under section 32, or, except as regards any portion of a forest closed under section 30, or as regards any rights the exercise of which has been suspended under section 33, in the exercise of any right recorded under section 29". The last part would show that rights recorded under section 29 cannot be interfered with at all except in a closed forest or when rights are suspended on account of fire under section 33 (2). This forest is not validly closed under section 30 (b) and sec?tion 33 (2) has no application. Therefore, nothing done under the provisions of the Chapter relating to protected forest can affect the rights of the plaintiffs. No doubt section 29 has not B been applied to this land and rights have not been recorded but by the mere non‑application of section 29, the persons concerned cannot be deprived of rights which they would have if it was a Government instead of a private forest. It is significant that sections 32 and 34, which have been applied, contain a reference to section

29. In any case the affect of sections 30 and 32 will be the same as in the case of Government forest. If a section in the Act has a particular interpretation and effect on account of the existence in the Act of other sections, the Government, though empowered to apply such sections as it thinks proper, cannot by applying only the first mentioned section and omitting to apply to last mentioned sections, change the interpretation and effect of the first mentioned section. That would neither be the intention of the Act nor would it be legal if such a result be in fact intended. It is one of the permissible forms of delega?tion of legislative power that the executive should determine whether or not an enactment should be applied but that presumes an existing law and cannot cover a case where, in the application of a law, the executive may also amend it and apply a law not existing otherwise. When sections in an Act are con?trolled, limited or affected, in their interpretation and effect, by other sections, they can be applied by the Provincial Government only with the meaning and effect given to them in the Act. As sections 30 and 32 are subject to section 34, they were not intended except in a case of a closed forest to abridge private C rights. Rules 1 and 3, therefore, would not affect the plaintiffs rights. Rule 6 is sought to be justified under section 30 (c), which empowers the local Government to prohibit the taking away of any forest produce from a protected forest. In the first place, section 30 (c) speaks of a notification with a date mentioned in the notification from which prohibition is to take effect and this condition is not fulfilled in the present case. In the second place, the result of the foregoing discussion is that section 30 is con?trolled by section 34 and is not intended to enable the Provincial Government to interfere with the exercise of a right, except when the forest is validly closed. We would hold, therefore, that rule 6 too is invalid.??????? We are of opinion also that the fact, that the rules were framed on the assumption that the forest was closed, is itself a defect which renders the rules ineffectual against the plaintiffs. It follows from the above discussion that the plaintiffs' rights of grazing cattle in the land in dispute and of taking head loads of grass and fuel remain unaffected by the three notifications Nos. 194, 195 and

196. The argument that as notifications Nos. 195 and 196 had not been specifically challenged, the suit is defective, has no force. The plaintiffs sued for the declaration of their rights. The fact that no declaration, as to the invalidity of the notifications is asked for, does not bar a consideration of the legality of the notifications, for deciding rights that are claimed. There remains the question of relief. The appellant had objected, as it does now, that a suit for a simple declaration without further relief did not lie, as the relief of injunction was open. The learned District Judge overruled this objection on the ground that one of the plaintiffs had already got a decree against Ghulam Muhammad (this plaintiff was a party to the previous suit) and by virtue of section 52 of the Transfer of Property Act, which had been applied to the Punjab, the Government would stand in the shoes of Ghulam Muhammad and would be bound by the previous decree. Before us too, learned counsel for the respondents did make some effort to justify the decision of the learned District Judge on this point. But there are two obvious objections to the argument and ulti?mately he bad to agree that an injunction ought to have been asked for. The objections are first, that only one of the present plaintiffs has a decree in his favour and secondly, if there is a decree the proper remedy would be to go to the executing Court and apply for the execution of decree for injunction and they, existence of the decree would not avail to get rid of the objec?tion that further relief is not asked for. Learned counsel for the respondents has now asked orally that we should, at the same time, pass a decree for injunction. The suit has been pending for a long time and the parties' rights have been thrashed out in three Courts. It is not denied that we have got the jurisdiction to grant the appropriate relief. This is not a case where allowing further relief would necessitate enquiry into any further facts. If such were the case, of course, there should have been an amend?ment of the plaint and the defendant should have had an oppor?tunity to contest whether the newly asked for relief can be granted at all. In the present case, the objection taken by the defendant ?appellant is that if the plaintiffs are entitled to a declaration they would, at the same time, be entitled to an injunction. The objection of the defendant‑appellant being itself based on the relief of injunction following the relief of declaration there is no necessity of making any further enquiry as to whether this relief of injunction should be granted, once we reach the conclu?sion that the plaintiffs are entitled to a declaration. We would, therefore, pass in favour of the plaintiffs a decree for injunction also. The next question is the exact form in which relief should be granted. We have already held that notification Nos. 195 and 196 are ineffective as against the plaintiffs rights. To clarify the position we will include in the decree a declaration to that effect. So far as the injunction is concerned it can only be granted in this form that at present the plaintiffs are entitled to an injunc?tion unless and until some further legal action is taken by the defendant‑appellant by virtue of which the appellant is able to any extent to interfere with the plaintiffs' rights. The decree, therefore, will be in the form of a declaration as to the rights of the plaintiffs which they have already asked for (excluding of course the reference to notification No. 194 which is valid) with the addition that notifications Nos. 195 and 196 are ineffective as against these rights, and an injunction that the defendant shall not interfere with the rights of the plaintiffs contained in the declaration except by means of further legally valid action and to the extent authorized by that action. The appeal is, therefore, dismissed but the decree is modified as stated above. Parties will bear their own costs in all Courts. A. H. ?????????????????????????????????????????????????????????????? ??????????????????????????????????? Appeal dismissed.