05 May 1964
Supreme Court


Case number: Appeal (crl.) 39 of 1962






DATE OF JUDGMENT: 05/05/1964


CITATION:  1965 AIR  147            1964 SCR  (8) 158

ACT: Forest Act-"Reserved forest"-Tripura Act replaced by  Indian Forest  Act-No preliminaries prescribed under  Tripura  Act- Notification  under  it whether can be deemed  to  be  under Indian  Forest ActTripura Act and Indian Forest  Act  object and purpose-Corresponding provisions-Indian Forest Act, 1927 (Act 16 of 1927), 159 Chs.  11  and  IV, Tripura Forest  Act,  1257  (1297?)  T.E. (Tripura Act 2 of 1257 T.E. 1297?) s. 5.

HEADNOTE: The   respondents  in  these  appeals  were   convicted   by Magistrates for offences under s. 26(1) of the Indian Forest Act.   Appeals were filed to the Sessions Judge,  where  the respondents  raised the contention that the forest areas  in which the alleged offences were committed were not  "Reserve forests"  within the meaning of the Act.   For  establishing that  these  "reserves" were "reserved forests"  within  the Indian  Act,  the  appellant relied  on  two  circumstances. First,  there was a Forest Act promulgated by the  Ruler  of Tripura  State  (Act  2  of 1257 T.E.  1297  T.E.  ?)  which contained  provisions somewhat analogous to those  contained in  the Indian Act.  Next, s. 5 of the Tripura  Act  enabled the  State Government to declare by notifications  published in the State Gazette, the boundaries of the forest areas  to be  governed  by  the State Act.   Such  notifications  were published  by  which the boundaries of the reserves  of  the forests in question were defined.  The appellant urged  that the  Tripura  Act was replaced by the Indian Forest  Act  by reason  of  legislative provisions upon the  merger  of  the native State of Tripura with the Dominion of India, and that the notifications under the Tripura Act which were continued in  force by these same provisions rendered  these  reserves "Reserved  forests"  under  the  Indian  Forest  Act.    The Sessions  Judge held that by reason of  these  notifications the  forest  areas  became  "reserved  forests"  under   the relevant  provisions of the Indian Forest Act and  dismissed the  appeals.  Thereafter, revisions were filed  before  the Judicial  Commissioner,  who ’differing  from  the  Sessions Judge  held  that  they  were  not  "reserved  forests"  and directed  the  acquittal of the respondents.  On  appeal  by



special leave: HELD:.....(i) From the provisions of the Indian Forest  Act, it  would  be seen that it is the notification under  s.  20 after  complying with the procedure prescribed by the  other sections of Chapter 11 commencing with s. 4 that constitutes a forest area "a reserved forest" within the Act. (ii).The  fact  that  under the Tripura Act  there  were  no preliminaries  Prescribed before a forest could be  notified as   a  reserved  forest  does  not  detract  from  such   a notification  being a notification under the  Indian  Forest Act. (iii).....In substance the object and purpose of the Tripura Act  was the protection of particular trees-the seven  types of  trees specified in s. 4. The notification under s. 5  is for  the  purpose of constituting areas  where  These  types would  be protected.  The penal provisions enacted  are  for insuring the protection of these trees.  (iv)  The prime purpose of Chapter II of the Indian  Forest Act is the constitution of reserved forests in which (1) all private  rights  within  the reserved  area  are  completely eliminated  by  their  being  bought  up  where  these   are ascertained  to  exist by payment of compensation,  (2)  the entire area being devoted to siviculture, every tree in  the forest being protected 160 from  injury  and within the scope of  the  penal  provision contained in s. 26. In other words, the reservation here  is to  the "forest area" as such and not the protection of  the particular  specified  trees or species of trees in  such  a forest. (v)..The  object of Ch.  IV of the Indian Forest Act is  the protection  of  particular trees and the  setting  apart  of particular  areas  as protected forests for the  purpose  of ensuring  the  growth and maintenance of  such  trees.   The object  sought to be achieved by the reservation in Ch.   IV is exactly similar to that which is sought to be achieved by the Tripura Act.  Only the Tripura Act makes the cutting  of protected  trees even outside a forest an  offence,  whereas there is no such provision under the Indian Forest Act. (vi).The  notification under s. 5 of the Tripura  Act  would constitute the area in question only as a "protected" forest under  Ch.   IV  of  the Indian Forest  Act  and  not  as  a "reserved"  forest  under s. 20 contained in Ch. 11  of  the Act, (vii).....The Judicial Commissioner was right in considering that the Provision.in  the Indian Forest Act "corresponding"  to  the Tripura Forest Act under.which  the notifications fixing the boundaries  of these forests in  question  were issued was that as regards  "a  protected forest" under Ch. IV and not "reserved forest" within s.  20 contained in Ch. 11.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 39, 49 of 1962. Appeals  by special leave from the judgment and order  dated August  26,  1960 of the Court of Judicial  Commissioner  of Tripura at Agartala in Criminal Revision Nos. 9, 8, 16,  22, 21, 32, 23, 18, 20, 24 and 17 of 1960. C. ..K. Daphtary, Attorney-General, D. N. Mukerjee and R.   H. Dhebar, for the appellant (in all the appeals).



P....K. Chatterjee, for the respondents (in Appeals Nos. 39, 42, 23, 46, 48 and 49 of 1962). May 5, 1964.  The Judgment of the Court was delivered by: AYYANGAR, J.--The respondents in these several appeals  were prosecuted before Magistrates in Tripura for offences  under S.  26(1) of the Indian Forest Act, 1927 and were  convicted and  sentenced  to  terms of imprisonment  and  fine,  Their appeals  to the learned Sessions Judge, Tripura having  been dismissed,  they preferred Criminal Revision  Petition,,  to the Judicial Commissioner, Tripura.  The learned Judicia 161 Commissioner  allowed their revisions by a  common  judgment and   directed  their  acquittal.   From  these  orders   of acquittal  the  Union of India has filed  these  appeals  by virtue of special leave granted by this Court under Art. 136 of the Constitution. Before  proceeding  to narrate the facts which have  led  to these appeals it is necessary to mention that three of these II  appeals--Criminal  Appeals 40, 41 and 45  of  1962  have become  infructuous.  The notices issued to the  respondents in  Appeals 40 and 45 of 1962 of the filing of  the  appeals could not be served on them as it was reported that they had left  for  Pakistan.  The appeals could not  accordingly  be prosecuted.   In regard to Criminal Appeal 41 of 1962 it  is reported  that the accused died pending the hearing  of  the appeals and hence the appeal has abated.  We are, therefore, concerned only with the other 8 appeals. The  material clauses of s. 26(1) of the Indian Forest  Act, 1927  for  contravention  of which the  respondents  in  the several appeals were prosecuted read: "26. (1) Any person who- (a)  makes any fresh clearing prohibited by section 5, or who, in a reserved forest- (d)  trespasses  or  pastures cattle, or permits  cattle  to trespass: (e) (f)  fells, girdles, lops, taps or burns any tree or  strips off  the bark or leaves from, or other.. wise  damages,  the same;                             (g) (h)  clears  or  breaks up any land for cultivation  or  any other purpose; 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, in addition to such corn- 51 S.C.-11. 162 sensation for damage, done to the forest a-, the  convicting Court may direct to be paid." The magistrate convicted some of the accused respondents  of offences  under  cls. (a) and (d) others of  offences  under cls. (d) & (h). It  is common ground that in order to constitute an  offence under  s.  26(1) the acts specified in the  clauses  of  the sections should be committed in an area which is a "reserved forest" under the Act.  We might point out that if the  area concerned was a reserve forest, the guilt of the respondents would  practically be made out and their conviction  by  the Magistrates, confirmed by the Sessions Judge, Tripura  might have-to be upheld.  The principal, if not the sole  question for  consideration in the appeals, however, is  whether  the forest  area  where  the  respondents  were  held  to   have committed the acts alleged against them was such a  "reserve forest". Before,  however,  dealing with that question, it  would  be



convenient  to  set out very briefly the  facts  which  have given  rise to these prosecutions.  The forests wherein  the several  respondents  are  stated  to  have  committed   the offences set out in the clauses of s.26(1) of the Act quoted above  are comprised in three distinct areas in  the  former Indian  State  of  Tripura.  These three  areas  are  known, respectively, as the Garjichhera reserve, Chandrapur reserve and  the North Sonamura reserve.  In April, 1958 an  officer of  the  Forest  Department went on circuit  duty  in  these forest areas and found that the several accused had  cleared the  forests, reclaimed some land and had dug tanks for  the purpose  of cultivation and had made homesteads  there.   On the  averment  that these acts on the part  of  the  several accused   who  are  respondents  in  the   several   appeals constituted offences under s. 26(1) (a) and (h) and in  some cases  under  s. 26(1) (a), (d) and (h) and  in  still  some others  under  s. 26(1)(d), (f) and (h),  the  accused  were produced   in   the  courts  of   the   Magistrates   having jurisdiction.   The  accused  admitted that  they  had  made homesteads and were living in structures constructed at  the places  where  they  were found and the  only  defence  then raised was that they were entitled 163 to do so under a claim of jote rights on the lands.  No evi- dence  was,  however,  produced by any  of  the  accused  to substantiate  their claim to trespass on and  plough-up  and cultivate  and erect homesteads on the lands on  which  they were  found  squatting and the learned  Magistrates  holding that  while  the prosecution had made out  their  case,  the accused had not established their defence, found the accused guilty  and passed appropriate sentences on  them.   Appeals were -filed against these convictions by the several accused to the learned Sessions Judge of Tripura.  At that stage the accused   raised  the  contention  that  the  forest   areas comprised in the Garjichhara, Chandrapur and North  Sonapura reserves  were not "Reserve forests" within the  meaning  of the  Act.   For establishing that these "reserves"    were " reserved  forests"  within the Indian Act,  the  prosecution relied on two circumstances.  First, there was a Forest  Act promulgated by the Ruler of the Tripura State (Act 2 of 1257 TE   1297  T.E.?)  which  contained  provisions  some   what analogous to those contained in the Indian Act.  Next, s....5  of the Tripura Act enabled the State  Government  to declare by notifications published in the State Gazette, the boundaries  of the forest areas to be governed by the  State Act.   There were three such notifications published in  the Tripura State Gazette in 1346 and 1349 T.E. corresponding to 1936 and 1938 by which the boundaries of the three  reserves of  the Garjichhera, Chandrapur and North  Sonamura  forests were  defined.  The contention urged by the  proseution  was that  the Tripura Act was replaced by the Indian Forest  Act by reason of legislative provisions to which we shall advert later and that the notifications under the Tripura Act which were  continued in force by these same  provisions  rendered these  three  reserves "Reserved forests" under  the  Indian Forest  Act.  We shall have to set out the terms of the  Act as  well as of the notifications later but it is  sufficient to  mention  at  this  stage  that  the  places  where   the respondents  cleared the forests and built their  homesteads were admittedly within one or other of these three reserves. The  respondents in Appeals 39, 43, 47 and 49 had  trespased into  the  Garjichhera  reserve, while  those  concerned  in appeals  42,  46 and 48 had trespassed into  the  Chandrapur reserve, and the respondent in appeal 44 was found to have 164



committed  a  similar  offence  in  respect  of  the  forest described  as the North Sonamura reserve.  When these  three notifications  were  produced before  the  learned  Sessions Judge  he  held that by reason of  these  notifications  the three  forest  areas  became "reserved  forests"  under  the relevant  provisions  of  the  Indian  Forest  Act  and   he therefore upheld the order of the Magistrate convicting  the accused  and dismissed the appeals of the  several  accused. Thereafter   revisions   were   filed   to   the    Judicial Commissioner,  Tripura.   The  same question  of  law  viz., whether  having  regard to the terms and provisions  of  the Tripura  Forest  Act,  the  notifications  setting  out  the boundaries   of   the  three  reserves   constituted   these "reserves"  "reserve forests" within the Indian Forest  Act, was again debated before the learned Judicial  Commissioner, the   learned  Judicial  Commissioner  differing  from   the Sessions Judge held that they were not, and on this finding, directed  the acquittal of the several accused.  It  is  the correctness  of  this  conclusion of  the  learned  Judicial Commissioner that is challenged in these appeals. It would be seen from the above narrative that the  question for consideration is whether the areas where the offence are said  to have been committed were within  "reserve  forests" within the meaning of the Indian Forest Act. On the terminology employed by the Indian Forest Act reserve forests"   are  those  areas  of  forest  land   which   are constituted  as "reserve forests" under Ch.  II of  the  Act Chapter II comprises ss. 3 to 27 and is headed "Of Reserveed Forests".   Section  3  empowers  the  State  Government  to constitute "any forest land or waste land which is the  pro- perty  of  Government  or  over  which  the  Government  has proprietary rights or to the whole or in part of the  forest produce  to  which  the Government is  entitled,  a  reserve forest  in  the  manner hereinafter  provided".   Section  4 require  that the State Government, when it has  decided  to constitute any land as a "reserved forest", should notify by the  issue  of  a  notification  in  the  Official   Gazette specifying  the  situation, ’limits, etc. of that  land  and declare  its  decision constitute the land  as  "a  reserved forest".  Section 6 make                             165 provision  for  a proclamation of  the  notification  issued under s.4 by publication in several places, so that  persons who  might be affected by the issue of the notification  may prefer objections thereto.  Section 7 directs an enquiry  by a Forest Settlement Officer of all claims made by persons in response to the publication of the notification under s.  6. Section 9 provides generally for the extinction of rights in respect  of  which no claim has been preferred under  s.  6. Where claims are preferred and are found to be made out s. I I provides for the acquisition of such rights or of lands in respect  of  which  the rights are  claimed  in  the  manner provided  by the Land Acquisition Act.  The next  succeeding provisions of the Act enable appeals to be filed against the orders  and for their hearing by the appellate  authorities. These are followed by s. 20 under which, after the stage  of enquiry and decisions on claims made is completed, the State Government  is  directed  to issue  a  notification  in  the Official   Gazette  ‘specifying  definitely,  according   to boundary-marks erected or otherwise the limits of the forest which  is  to  be reserved, and declaring  the  same  to  be reserved from a date fixed by the notification.  Sub-section (2) of the section enacts: "20.(2)  From the date so fixed such forest shall be  deemed to be a reserved forest."



Section 21 provides for the translation of the  notification and  its  publication  in  every  town  or  village  in  the neighbourhood of the forest.  The next relevant provision is s.  26  which  prohibits the doing of  certain  acts  in  "a reserved  forest"  and  provides for  punishment  for  these contraventions  the material parts of which we have  already set out.  From these provisions it would be seen that it  is the  notification  under  s. 20  after  complying  with  the procedure  prescribed by the other sections of  the  Chapter commencing  with  s.  4 that constitutes a  forest  area  "a reserved forest" within the Act. The  forests  in the former State of Tripura were  not  dec- clared "reserved forests" under a notification issued  under S. 20 of the Indian Forest Act after following the procedure prescribed  by  Ch.  H. We have, therefore, to  examine  the steps by which this result is said to have been reached.  We have already referred to the existence of the Tripura Forest 166 Act 1257 (1297?) T.E. enacted by the Ruler of Tripura  under which  certain provisions were made for the preservation  of Forest  areas  in  the State and  the  notifications  issued thereunder constituting the three areas as "reserve forests" for the purpose of that Act.  It would be necessary to  exa- mine  the  details of these provisions, but  this  we  shall defer  till we complete the narration of the  constitutional changes  which brought the State of Tripura into the  Indian Union and the legislation which accompanied and accomplished these changes.  Tripura was a native State and the ruler  by a merger agreement with the Governor-General of India merged his State with the Dominion in the year 1949.  By para 5  of the Tripura Administration Order, 1949 issued on October 15, 1949 under the powers conferred in that behalf by the  Extra Provincial  Jurisdiction Act, 1947 all the laws in force  in the State of Tripura immediately before the commencement  of the  said  Order  were continued in force  until  they  were repealed or amended by a competent legislature or authority. Then came the Constitution which was operative from  January 26,  1950 and under it Tripura became a Part C State of  the Union  of India.  By virtue of Art 372 of  the  Constitution the laws in force in the territory of India which would have included  the Tripura Forest Act in so far as it applied  to the territory of the former Tripura State, were continued in force  until repealed or anended by  competent  legislation. Next,  came  the Part C States (Laws Act,  1950  enacted  by Parliament.   By its s. 3 the Acts and Ordinances  specified in  the Schedule to the Merged State (Laws) Act,  1949  were extended  to  and directed "to be in force in the  State  of Tripura......   as  they  were  general  in  force  in   the territories  to  which they extended  immediate  before  the commencement of that Act".  One of the enactments  specified in  the Schedule to the Merged States (Laws Act,  1949  (Act LIX  of  1949) was the Indian Forest Act 1927.   The  Indian Forest Act was thus extended to the Tripura State.   Section 4  of the Part C States (Laws) Act 1950 provided  that  "any law  which  immediately before the commencement of  the  Act (April  15,  1950) was in form in any of  the  States  which included  Tripura  and correspondent to an Act  extended  to that State by the Act was there repealed".  The operation of the repeat was subject to the I67 provisos  and it is the second of these provisos that  calls for construction in these appeals.  This proviso ran: Provided  further  that, subject to the  preceding  proviso, anything done or any action taken, including any appointment or  delegation  made, notification,  order,  instruction  or



direction issued, rule, regulation, form, bye-law or  scheme framed,  certificate, patent, permit or licence  granted  or registration  effected,  under such law shall be  deemed  to have been done or taken under section 2 or, as the case  may be,  under  the  corresponding  provision  of  the  Act   or Ordinance  as  now extended to the State by section  3,  and shall  continue  in  force  accordingly,  unless  and  until superseded  by anything done or any action taken  under  the said section 2 or, as the case may be, under the said Act or Ordinance." Shortly  stated,  the question for  consideration  in  these appeals is whether as a result of the operation of ss. 3 and 4  of the Part C States (Laws) Act read in the light of  the proviso  above-quoted the three reserved forests which  were notified  under the Tripura Act of 1257 (T.E.) could be  de- emed  to be "reserved forests" under Ch.  II of  the  Indian Forest Act, 1927. Stopping  here, it would be convenient to notice a few  mat- ters.  In the first place, when the Indian Forest Act,  1927 was  extended to the State of Tripura in 1950 it would  have been open to Government to have taken steps to constitute  " reserved   forests"  within  the  State  by  following   the procedure  prescribed  by Ch.  II to which we  have  already adverted.  But this was not done and the Government seem  to have  proceeded  on  the basis that the  areas  notified  as "reserved  forests"  under the Tripura  Act  were  "reserved forests"  under the Indian Forest Act.  Next, it  is  common ground  that  the  Tripura Act which was  continued  by  the Tripura Administration Order, 1949 did not survive 168 the Part C States (Laws) Act, 1950 because the Indian Forest Act  being "a corresponding law" to the Tripura  Forest  Act stood  repealed by the operation of s. 4 of that  enactment. Besides,  the  provisions of the Tripura  Forest  Act  under which  the  notifications  constituting  these  forests   as "reserved forests" were issued were under the proviso to  s. 4  "deemed to have been done under the corresponding  provi- sion of the Act as now extended to the State by s. 3".   The position,  however, is that the Indian Forest Act whose  ex- tension  to  the  Tripura area effected the  repeal  of  the Tripura  Act, contains provisions of two distinct  types  or kinds  for the exercise of control over forests  and  forest areas  and  the  question then arises as  to  which  of  the provisions  of the Indian Act, "correspond" to those of  the Tripura  Act,  to enable one to say that  the  notifications under  the latter Act should be deemed to have been  issued. On a consideration of the relevant provisions of the Tripura Forest  Act the learned Judicial Commissioner held  that  at the  most the corresponding provision of the  Indian  Forest Act  to which the Tripura notification could be related  was as  a "protected forest" under Ch.  IV of the Indian  Forest Act  and not a " reserved forest" under Ch. 11 of  the  Act. He,  therefore,  decided that as the offence for  which  the accused  were  being  prosecuted was one  under  s.  26  the accused could not be held guilty since there was no legal or effective  notification  of the forest area as  a  "reserved forest"   within  s.  20  of  the  Indian  Forest  Act   and accordingly  directed  the acquittal of  the  accused.   The appeals challenge the correctness of this last conclusion. The principal submission of the learned AttorneyGeneral  who appeared  for the Union of India in support of  the  appeals was directed to establish that the notification constituting the  three  forests as reserved forests under  the  repealed Tripura Forest Act 11 of 1257 (1297?) T.E. must be deemed to have been taken under Ch. 11 of the Indian Forest Act,  1927



which, it was contended, was the provision corresponding  to the  repealed  Tripura  Act.  it is  the  validity  of  this submission   that  now  calls  for  consideration.    Before entering  on a discussion of this question we might  dispose of a minor consideration which might be urged in I69 order  to show that the notification under the  Tripura  Act could not be deemed to be a notification under s. 20 of  the Indian Forest Act.  One of the submissions under this  head, and this was one of the points that appears to have appealed to  the learned Judicial Commissioner, was that Ch.   II  of the  Indian  Forest Act prescribes  an  elaborate  procedure which  is  mandatory and is required to  be  complied  with, before  any  land  could be  constituted  into  a  "reserved forest" under that Act.  The Tripura Act admittedly does not make provision for any such procedure being followed  before an area is notified as "a reserved forest" or is constituted into  one.   The  argument based on this  was  that  in  the absence  of identity between the procedural requirements  of the  two Acts, a notification under the revealed  Act  could not be deemed to be one under a "corresponding provision" of the Act extended to the territory, the emphasis being on the words  "corresponding provision".  We are unable  to  accept the correctness of this submission. The scheme of the Part C States (Laws) Act is this.  In  the first  place,  by  reason of s.  3  certain  enactments  are extended to these States.  If there is no law in that  State which was in force on the date of the extension of a  parti- cular  enactment  under s. 3 which is in  pari  materia  and covers the same field as the law that is extended, s. 4 does not come into play and consequently there is no question  of the  repeal of any pre-existing law.  If such were the  case the  law in force in the native State of Tripura would  have first continued by reason of the provision contained in s. 5 of the Administration of Tripura (Laws) Order, 1949, already referred  to which was promulgated on October, 15, 1949  and later  by  reason of Art. 372 of the Constitution.   To  the extent to which there was no repeal by virtue of s. 4 of the Part  C States (Laws) Act, 1950 the Tripura law  would  have continued in force.  It is only on the basis that the Indian Forest Act whose operation was extended to that territory by s.  3  was "a corresponding law" that the  Tripura  Act  can stand  repealed.   For the purpose of effecting  the  repeal under  s. 4 the only consideration is whether  any  existing law  of  that  State  "corresponded" to  a  law  which,  was extended by reason of s. 3. 170 As  stand  earlier,  it is common ground  that  the  Tripura Forest Act "corresponded" to the Indian Forest Act, 1927 and that the former therefore stood repealed on the extension to Tripura  of the latter enactment.  If then the extension  of the Indian Forest Act to the State effected a repeal of  the Tripura  Forest  Act we have next to  consider  whether  the notification  under the Tripura Act could be deemed to be  a notification  under  "the corresponding  provision"  of  the Indian  Forest Act.  For that purpose the  preliminaries  to the  notification  or  the procedure which  must  precede  a notification  are not of any relevance but only whether  the particular  notification  could  be  held  to  be  under   a corresponding provision under the extended enactment,  viz., the Indian Forest Act.  If the notifications had been issued after complying with the formalities prescribed by the State law  and  they are kept alive by the proviso to  s.  4,  the notifications  would necessarily have to be deemed  to  have validly been made under the latter Act.  Judged by this test



it  appears to us that the fact that under the  Tripura  law there were no preliminaries prescribed before a forest could be notified as a reserved forest does not detract from  such a notification being a notification under the Indian  Forest Act, 1927. We have next to consider whether the notification under  the Tripura  Act could be deemed to be a notification under  Ch. 11  or under s. 20 of the Indian Forest Act for that is  the basis  upon  which the entire prosecution case  rests.   For this  purpose it is necessary to analyse the  provisions  of the   Tripura  Act  and  also  examine   the   corresponding provisions  of the Indian Forest Act.  We shall first.  take up the Tripura Act.  Its preamble, after reciting that  some classes  of trees are regarded as protected ones from  times immemorial,  goes  on  to state that  it  was  expedient  to consolidate the law with a view to bring order in the matter of the supervision of the protected trees and also to  place the same on a sound footing.  This would appear to  indicate that  the Act was designed for the protection of  particular trees as distinguished from the reservation of an area as  a forest  for the purpose of protecting all the  trees  within that  forest.  We shall in due course have to refer  to  the provisions of Ch.  TV of the Indian 17I Forest  Act headed "Of Protected Forests" under  which  also the aim of the law is to afford protection to certain  trees in particular areas.  To revert to the Tripura Act, its s. 3 provides  for the repeal of the earlier laws and saves  only rules  or customs not inconsistent with the Act.  Section  4 is  one  of the key provisions of the Act and under  it  are specified seven classes of trees which shall be deemed to be protected within the independent State of Tripura.  The  Act is  divided  into seven chapters of which the first  one  is headed  "Of  protection of Rakshita Bana" which,  as  stated earlier,   has  been  translated  as  "Protected   Forests". Section  5 under which the three notifications to  which  we have already referred were issued reads: "The  boundaries  of  ’Rakshita Bana’, shall  be  fixed  and publication  of  the  same  shall  be  made  in  all  police stations,  offices, markets, ports and other  public  places within this independent State". Section 6 runs: "No  person  shall  be  entitled to  carry  out  any  ’Jhum’ cultivation (shifting cultivation) within half a mile radius of a Rakshita Bana". Sections  9 to 11 specify the acts which are  prohibited  in the notified forest areas.  These enact: "9.  No person shall set fire to the hills in such a  manner which may cause damage to a Rakshita Bana in any way". "10. .....No  person shall enter into a Rakshita  Bana  car- rying fire." I’ll. ....No  person  shall  enter  into  a  Rakshita   Bana carrying axe or other weapons which may be used for  cutting trees without permission." Chapter  11  with which s. 12 opens is  headed  "Of  Gradual Development  of  Rakshita Banas." The relevant  sections  of this Chapter are ss. 12 to 17 and they read: "12.   In each year protected trees like sal etc. and  other valuable  trees  shall be grown either by  sowing  seeds  or otherwise. 172 "13.   In order to give effect to the provisions of  section 12, suitable sites will be selected at regular intervals after taking sanction for the same." "14. .....If  there are other trees in a Rakshita Bana  than



those  mentioned  in  section 4, and  if  it  is  considered expedient that such other trees are harmful to the growth of the protected trees, then such trees shall be cut." "15. .....In  case any old tree referred to in section 4  is cut, then a new tree shall be grown in its place.  " "16.   No person on any account shall be allowed to cut  any tree  within  the reserved forest in a  manner  which  might cause any damage to the block." "17.  If there be dense growth of any specific type of  tree as  mentioned  in section 4 and if such growth  is  mutually detrimental  to  the  general growth of the  trees  then  to facilitate  growth of the species some may be cut  according to neces- sity.  " Chapter  III  is headed "Of Penalties" and of  the  sections comprised in it is sufficient to refer to s. 18 under  which any person kindling fire in a forest is made punishable with imprisonment, s. 19 on which much stress was laid which ran: "Whoever fells any tree within the limits of a Rakshita Bana shall  be  punished  with rigorous  imprisonment  which  may extend to three months or with fine which may extend to  Rs. 5001or with both". and s. 20 which ran: "20.   Any  person  who cuts any  tree  as  specified  under section  4 outside the limits of a reserved forest shall  be punished with rigorous imprisonment which may extend to  two months  or with fine which may extend to Rs. 200/-  or  with both." 173 In  this connection it is necessary to point out that  under s.20 the cutting of the protected trees specified in s. 4 is made  an  offence  even if the cutting were  to  take  place beyond  the  limits of the forest notified under s.  5.  The only  point  of difference brought in by the  cutting  being within the boundaries of the forest is that in that case the punishment is heavier. The other chapters relate to the officials and the manner in which  they  should perform their duties and have  not  much relevance for the purposes of these appeals. From  the above summary of the provisions it would  be  seen that in substance the object and purpose of the Tripura  Act was  the protection of particular trees-the seven  types  of trees  specified in s.4. The notification under s. 5 is  for the purpose of constituting areas where these types of trees would  be protected.  The penal provisions enacted  are  for ensuring  the  protection of these trees.  No doubt,  s.  16 enacts a ban against the cutting of any tree within a forest so  as to cause damage to any block and s. 19 penalises  the cutting  of any tree within the area of a forest, but it  is obvious  that in the context of the other provisions of  the Act  and  the  purpose which the enactment  is  intended  to subserve,  these  prohibitions under  penal  sanctions  were designed primarily and essentially to ensure more  effective protection to the trees specified in s.4. Now,  let  us see whether Ch.  II of the Indian  Forest  Act could  be  said to be a provision which corresponds  to  the Tripura  Act,  so that the notification under s.  5  of  the latter ,enactment could be deemed to be a notification under Ch.   II ,or s. 20 of the Forest Act.  We have set  out  the -several provisions of Ch.  II and their object.  The  prime purpose  of  that Chapter is the  constitution  of  reserved forests in which (1) all private rights within the  reserved area  are  completely eliminated by their  being  bought  up where  these are ascertained to exist by payment of  compen- sation,  (2) the entire area being devoted  to  siviculture,



every  tree  in the forest being protected from  injury  and within the scope of the penal provision contained in s.  26. In other words, the reservation here is to the "forest area" as such and not the protection of particular specified trees or species of trees in such a forest. 174 In this connection some point was sought to be made from the terms  of the notification under s. 5 of the Tripura Act  by which the boundaries of the several forests were  specified. The three notifications were substantially in the same  form and it is, therefore, sufficient to set out the one  setting out the boundaries of the Garjichhera reserve.  The relevant conditions are: "2. Jhum cultivation will not be permissible in this  forest area. 3’.  The  land previously settled within  this  forest  a-ea shall remain valid.  Plough cultivation will be  permissible in that area. 4.   The fallow Taluka land falling within this area shall be deemed as not being within this reserve. 5.   Until further orders, cutting of all kinds of trees are  prohibited within this Reserve.  Cutting and export  of unclassified forest products........ will be permissible. 6....Except  in  the settled area, grazing of all  kinds  of animals elsewhere within this Reserve will be prohibited. 7.   AR kind of hunting within this Reserve is prohi-                           bited." In regard to these conditions stress was laid principally on condition no. 5 under which all cutting of trees was forbid- den.  The provision here appears to be a reproduction of  s. 16  of  the  Act and to have no  further  or  more  extended operation.  We are therefore unable to accept the submission that by reason of this clause the area which is notified  as the reserved forest is constituted a reserved forest of  the same type as under Ch.  II of the Indian Forest Act.  In the first  place,  as  the notification  was  issued  under  the Tripura  Act  it  would be reasonable to  construe  it  with reference  to  the  prohibition  against  cutting  of  trees contained in the Act itself and we have already adverted  to the  terms of s. 16 which we have held was designed for  the purpose  of protecting the trees set out in s. 4.  But  that apart, clause 5 175 itself  permits the cutting of certain forest produce  which it  was  evidently  thought would  not  interfere  with  the functioning  of the forest as a place for the protection  of the  protected  trees.  The other two notifications  do  not permit the cutting of Bamboo etc. without Government permit, but this in our opinion makes no difference. If one now turns to the provisions of Ch.  IV of the  Indian Forest  Act the correspondence between the Tripura  Act  and the  provisions of Ch.  IV would become clear.  Section  30, corresponding to s. 4 of the Tripura Act, in Ch. 11  enables the  State  Government  by  notification  in  the   Official Gazette-- (a)  to  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 State 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 subjectionto      any manufacturing process,     or removalof,      any forest-produce in any such forest andthe      breaking up or clearing for cultivation,for building,  for herding cattle or for any other  purpose,  of any land in any such forest." Section  31 provides for the publication of  a  notification under s. 30 and s. 32 for the regulations which may be  made for protected forests i.e., areas in which particular  trees are  protected and s. 33 provides for penalties for acts  in contravention  of  a notification under s. 30  or  of  rules under s. 32.  This section enacts: 176 "33.  (1)  Any  person  who commits  any  of  the  following offences, namely:- (a)  fells,  girdles, lops, taps or bums any  tree  reserved under section 30, or strips off the bark or leaves from,  or otherwise damages, any such tree; (b)  contrary to any prohibition under section 30,  quarries any  stone  or  burns any lime  or  charcoal,  or  collects, subjects  to  any  manufacturing  process,  or  removes  any forestproduce; contrary to any prohibition under         section 30, breaks up or clears for cultivation        or any other purpose any land in any protected forest; (d)  sets fire to such forest. kindles a fire without taking all  reasonable precautions to prevent its spreading to  any tree reserved under section 30, whether standing, fallen  or felled, or to any closed portion of such forest; (e)  leaves burning any fire kindled by him in the  vicinity of any such tree or closed portion; (f)  fells any tree or drags any timber so as to damage  any tree reserved as aforesaid; (g)  permits cattle to damage any such tree; (h)  infringes any rule made under section 32; 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  would  thus be clear that the object of Ch.  TV  is  the protection  of  particular trees and the  setting  apart  of particular  areas  as protected forests for the  purpose  of ensuring  the  growth and maintenance of  such  trees.   The object                             I77 sought  to be achieved by the reservation in Ch.  IV of  the Indian Forest Act is thus seen to be exactly similar to that which is sought to be achieved by the Tripura Act.  Only the Tripura  Act  makes  the cutting  of  protected  trees  even outside  a  forest  an offence, whereas  there  is  no  such provision  under the Indian Forest Act.  If, therefore,  one has  to  seek a provision "corresponding"  to  the  repealed Tripura  Forest Act that provision will be found not in  Ch. 11  of  the Indian Forest Act but only in Ch.  IV.   As  the present  prosecutions have been launched for offences  under s. 26 the learned Judicial Commissioner was right in holding that the prosecution has not been able to establish that the accused had committed an offence in respect of the provision under  which they were charged since the three forests  were not   notified  as  reserved  forests  under   a   provision corresponding to Ch.  II of the Indian Forest Act. We,  therefore, hold that the learned Judicial  Commissioner was  right in considering that the provision in  the  Indian Forest  Act "corresponding" to the Tripura Forest Act  under



which the notifications fixing the boundaries of these three forests were issued is that as regards "a protected  forest" under  Ch.   IV  and not a "reserved forest"  within  s.  20 contained  in  Ch.  II.  The order  acquitting  the  several respondents was therefore right and the appeals fail. In  the view that we have taken of the main question  argued before  us, we do not find it necessary to consider  whether there  were  any other legal defences open  to  the  several accused.  For instance, it will be noticed that the  accused in  these  cases  were  held guilty  of  offences  under  s. 26(1)(a), (d) and (h).  As regards the offence under cl. (a) the   learned  Attorney-General  conceded  that  it  was   a prerequisite  for a person being held guilty of  an  offence under that clause that there should be a notification under s.   4  because  s. 5 which is referred to in s.  26(1)  (a) reads: "5. 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 51 S.C.--12 178 such right 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." In  the  absence,  therefore, of  such  a  notification  the accused  could not have been held guilty of a  contravention of  s.  26(1)(a).   Coming next to cls.  (d)  and  (h),  the question  for consideration would be whether if  these  were not  offences  under the Tripura law, the accused  could  be prosecuted by reason of (a) the extension of the Forest  Act to  the  Tripura State and (b) the notification.  under  the Tripura  law being "deemed to be a notification"  under  the corresponding  provision of the Indian Act.  We consider  it unnecessary  to examine this problem or to express any  opi- nion  on this matter in view of the conclusion that we  have reached that the notification under s. 5 of the Tripura  Act would  constitute the area in question only as  a  protected forest under Ch.  IV of the Indian Forest Act and not as a " reserved"  forest under s. 20 contained in Ch. ]El  of  that Act. The  appeals  fail  and are dismissed.   The  appellant  had undertaken  to pay the costs of the respondents at the  time of  the admission of the appeals.  In accordance  with  that undertaking the appellant will pay the costs to the  respon- dents.  One hearing fee. Appeals dismissed.