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Judgment
M.N. Rao, J.—This batch of writ petitions relates to the validity of the order issued by the Divisional Forest Officer, Eluru directing prosecution of the petitioners for illicit encroachment of forest land and for raising cashew plantations in I.S. Jagannadhapuram village, hamlet of Ramasingavaram in West Godavari District. As all the writ petitions raise common questions of law and are interconnected, they are disposed of by this common judgment. The village, an estate, was taken over by the Government in 1950 under the Estates Abolition Act. The petitioners claim to be in possession of various extents of land in the village. It is their plea that in the year 1986, the forest officials for the first time claimed that the land is situated in reserved forest. They contend that applications filed by them u/s 63-A of the A.P. (Andhra Area) Estates (Abolition and Coversion into Ryotwari) Act, 1948 are still pending before the third respondent, the Settlment Officer, Eluru, West Godavari District. Unless the third respondent disposes of the applications filed by them, the Divisional Forest Officer, the second respondent, has no jurisdiction to order prosecution.
In the counter affidavit it is averred that an extent of 2064 acres was notified u/s 4(1) of the A.P. Forest Act in I.S. Jagannadhapuram forest block as per G.O.Ms.No. 1847 F & A Department dated 16-9-68. The proclamation u/s 6 was also published in the District Gazette on 13-11-69. The petitioners never approached the Forest Settlement Officer pursuant to the proclamation issued u/s 6. The applications filed u/s 63-A of the Estates Abolition Act by the petitioners before the third respondent are not maintainable.
Shri K.L.N. Rao, learned counsel for the petitioners has raised two contentions; (1) when the applications filed by the petitioners u/s 63 of the Estates Abolition Act are pending before the third respondent (Settlement Officer), launching of prosecutions is clearly illegal. Unless the third respondent decides the nature of the land, the second respondent (Divisional Forest Officer) has no jurisdiction to take action under the provisions of the A.P. Forest Act; and (2) Only in respect of reserved forest, prosecutions could be launched u/s 20 of the A.P. Forest Act and the land in question not being a reserved forest, the second respondent has no jurisdiction to direct prosecutions.
Before dealing with the contentions raised by the learned counsel for the petitioners it is necessary to notice the relevant statutory provisions. Chapter II of the A.P. Forest Act deals with reserved forests. Section 3 confers power on the State Government to constitute any land as a reserved forest in the manner specified in that chapter. Whenever it is proposed to constitute any land as a reserved forest, Sub-section (1) of Section 4 obligates the State Government to publish a notification in the A.P. Gazette and District Gazette concerned specifying (a) situation and limits of the land, (b) declaring that it is proposed to constitute such land as a reserved forest and (c) appointing a Forest Settlement Officer to consider the objections under Clause (b) and to enquire and determine the claims advanced by any person in respect of that land or to any forest produce of such land. The Forest* Settlement Officer is required by Section 6(1) to publish a proclamation containing the details specified in that section calling for objections from any person interested against the declaration made under Sub-section (1) of Section 4. The Forest Settlement Officer is obligated u/s 8 to consider every objection and every claim put forth u/s 6. Section 10 to 12 deal with the procedure for deciding certain rights claimed before the Forest Settlement Officer and the compensation to be payable on the determination of such rights. Section 13 provides for appeals from the orders of the Forest Settlement Officer to the District Court having jurisdiction. Section 15 empowers the Government to publish a notification specifying the limits of the forest which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such notification and from the date so fixed, such forest shall be deemed to be a reserved forest. The notification shall be issued only upon the occurrence of one of the following events: (1) the completion of the enquiry u/s 6, (2) the disposal of the appeal u/s 13 and (3) the completion of the proceedings taken u/s 10. Section 5 bars right of suit questioning the notification issued u/s 4 or the notification issued u/s 15. During the interregnum between the publication of the notification u/s 4 and the date fixed in the notification made u/s 15 accrual of certain forest rights are barred and clearing of forests is prohibited by Section 7. Sub-section (1) lays down that in respect of the land acquired under the notification issued u/s 4 no right shall be acquired by any person except by succession or a grant or contract in writing made or entered into by or on behalf of the Government or any person in whom such right was vested before the publication of the notification u/s 4; (b) no new house shall be built or plantation formed, no fresh clearing for cultivation or for any other purpose shall be made and no trees shall be cut from such land for the purpose of trade or manufacture without the permission of the Forest Settlement Officer; and (c) no person shall set fire or leave burning any fire as to endanger or damage the forest land or forest produce. Sub-section (2) enjoins that no patta in respect of such land shall be granted by or on behalf of the Government. Section 20 deals with penalties for trespass or damage in reserved forest and acts prohibited in such forest. Section 59 deals with power to compound offences.
The Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the rights of land-holders in permanently settled and certain other estates in the State of Andhra and the introduction of the ryotwari settlement in such estates. Certain sections specified in Sub-section (4) of Section 1 came into force with effect from 2-4-1949. The consequences with regard to notification of estates with effect from the aforesaid notified date are dealt by Section 3. By Section 9 the Settlement Officer is empowered to determine whether any inam village in his jurisdiction is inam estate or not. Section 11 deals with the rights of ryots in an estate to claim ryotwari pattas in aspect of the categories of land specified therein. Section 12 deals with the land in Zamindari estates in which the landholder is entitled to ryotwari patta. Likewise Section 13 deals with the rights of the landholder to claim ryotwari patta in inam estate. Section 15 deals with the determination of the lands in which the landholder is entitled to ryotwari patta. It empowers the Settlement Officer to examine the nature and history of the land and render a decision. Sub-section (2) provides for appeal to the Tribunal constituted u/s 8. Section 63 lays down that if any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to-the Director within the prescribed time and a further revision to the Board of Revenue. The decision rendered u/s 63 if no appeal or revision is preferred shall become final and binding on all authorities and parties in relation to the claim of grant of ryotwari patta in respect of any land u/s 11 or Section 15.
It was only in 1986 the petitioners filed applications u/s 63 of the Estates Abolition Act before the Settlement Officer and the same are still pending. The notifications u/s 4(1) of the Forest Act were issued as far back as 16-9-68. After the proclamation was issued u/s 6 calling for objections from interested persons, it is not in dispute, none of the petitioners herein or any of their predecessors-in-interest preferred any objections or claims. It is also not the case of the petitioners that either they or their predecessors-in-interest preferred claims for grant of ryotwari pattas under Sections 11 or 15 of the Estates Abolition Act. Unless mere is a claim under Sections 11 or 15 there cannot be any determination of the question whether any land in an estate is a forest or is situated in a forest. Section 63 specifically deals with determination of questions whether an estate is a forest or situate in a forest and such a decision subject to appeal and revision, u/s 63-A, "shall be final and binding on all authorities and parties in relation to the claim for grant of ryotwari patta in respect of any land u/s 11 or Section 15.
As already noticed, during the interrgnum between the publication of notification u/s 4 of the Forest Act-and the notification issued u/s 15 declaring a forest as a reserved forest, certain acts are prohibited by Section 7. Clauses (a) and (b) of Sub-section (1) of Section 7 read as follows:-
"(a) no right shall be acquired by any person in or over the land included in the notification u/s 4 except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or any person in whom such right was vested before the publication of the notification u/s 4;
(b) no new house shall be built or plantation formed, no fresh clearing for cultivation or for any other purpose shall be made, on such land and no trees shall be cut from such and for the purpose of trade or manufacture;
Provided that nothing shall prohibit the doing of any act specified in this clause with the permission in writing of the Forest Settlement Officer".
The petitioners are sought to be prosecuted for illicit encroachment of forest land for raising cashew plantations. In the revenue records, it appears, the land was shown as forest land. The notification u/s 4 (1) was issued as far back as 16-9-68. It is only subsequent to the notification that the petitioners have advanced claims for clearing the forest and for raising cashew plantations. They did not obtain the land either by succession or under a grant or contract entered into by or on behalf of the Government or any person in whom such right was vested before the publication of the notification u/s 4 and, therefore, they are prohibited from acquiring any right by virtue of Clause (a) of Sub-section (1) of Section 7. Clause (b) prohibits them from constructing any new house or forming any plantation or making any fresh clearing for cultivation or for any other purpose. Since they have resorted to acts forbidden by Section 7(1)(b) after the notification u/s 4(1) was issued, the forest officials are entitled to launch prosecutions against them u/s 20. It must also be mentioned in this context that none of the petitioners raised any objections to the proclamation issued u/s 6 of the Forest Act. In the absence of proceedings u/s 11 or 15, the applications filed u/s 63 are not maintainable. The protective umbrella they are claiming viz., pendency of their applications before the Settlement Officer u/s 63 of the Estates Abolition Act cannot confer on them any legal protection since their applications under that section are not maintainable and the Settlement Officer has no jurisdiction to enquire into the same. Therefore, the contention that the pendency of the applications u/s 63 of the Estates Abolition Act before the Settlement Officer shall constitute a statutory bar for the forest officials to initiate action u/s 20 is dearly unsustainable.
In State of Andhra Pradesh v. Court of the District Judge, 1982 (2) APLJ (SN) 73. (W.P. 6423/80 dt. 7.10.82.) Seetharam Reddy, J., has taken the view that:
".....the moment the notification is issued u/s 4 (of the Forest Act) any other forum is forbidden from embarking upon any enquiry and confer any right or patta whether existing or new one, in respect of such land which is covered by the notification."
A Division Bench of this Court in W.P.No. 252 of 1988 dated 24-2-88 without going into the merits of the contention as regards the maintainability of the applications before the Settlement Officer u/s 63 of the Estates Abolition Act stayed the prosecutions till the disposal of the applications by the Settlement Officer. That decision is of no assistance to the petitioners since I have held on merits that the Settlement Officer has no jurisdiction to entertain the applications u/s 63 of the Estates Abolition Act.
It is the contention of Shri K.L.N. Rao, learned counsel for the petitioners that as indicated in the heading of Section 20 only in respect of a reserved forest penalties as contemplated in the Section can be imposed but not otherwise, and the land in question not being a reserved forest, the petitioners cannot be prosecuted. Section 20 so far as it is material reads as follows:-
Penalties for trespass of damage in reserved forest and acts prohibited in such forest:-
(1) Any person who-
(a) contravenes the provisions of Clause (b) of Sub-section (1) of Section 7;
(b) sets fire to a forest notified to be reserved u/s 4 or kindles in such forest any fire or leaves any fire burning in such manner as to endanger such forest;
(c) in a reserved forest-
(i) kindles, keeps or carries any fire, except at such season and subject to such conditions as the Divisional Forest Officer may, from time to time, specify in this behalf;
(ii) trespasses, pastures cattle or allows cattle to trespass;
(iii) causes any damage, either wilfully or negligently in felling or cutting any tree or dragging any timber;
(iv) ...........(x)......
(d) abets any of the acts specified in Clause s (a), (b) and (c), shall, in addition to such compensation for damages caused to the forest as the court may direct to be paid, be punishable-
(i) in every case where any of the acts aforesaid relates to sandal wood or red sanderswood with, imprisonment for a term which shall not be less than three months but which shall not exceed one year and with fine which shall not exceed ten thousand rupees;
(ii) in any other case, with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both."
The heading of the section, it is true, gives the impression that penalities are applicable in respect of acts relating to a "reserved forest". It is the settled rule of interpretation that the headings prefixed to sections are only in the nature of preambles. The clear words in the section cannot be affected by contrary indications in the headings, R.Vs. Survey (North-Eastern Area0 Assessment Commitee. (1948) 1 K.B. 29 of PR 32-33. Also see Maxwell on Interpretation of Statutes at P. 11 XII Edition. Clause (a) of Sub-section (1) of Section 20 clearly says that penal action can be taken against any person who contravenes the provisions of Clause (b) of Sub-section (1) of Section 7. As already noticed Section 7 deals with prohibition of acts committed during the interregnum between the publication of notification u/s 4 and the notification issued u/s 15 declaring a forest as a reserved forest. The fallibility of the draftsman in incorporating the words "reserved forest" in the heading of Section 20 cannot, therefore, give rise to a valid plea for non-prosecution.
The learned counsel for the petitioner has invited my attention to the ruling of the Supreme Court in Union of India (UOI) Vs. Abdul Jalil and Others, . in support of the contention that prosecution can be launched only in respect of reserved forests, but not in relation to forests which have not yet been declared as reserved forests. Sections 4 and 5 of the Indian Forest Act are analogous to Sections 4 and 7 of the A.P. Forest Act. Section 5 of the Indian Forest Act, 1927 is analogous to Section 7 of the A.P. Forest Act. Section 26 of the Indian Forest Act which is analogous to Section 20 of the A.P. Forest Act deals with certain prohibited acts in forests u/s 26(1)(a) any fresh clearing of forest prohibited by Section 5 is an offence punishable with imprisonment up to six months or fine up to Rs. 500/-. The question before the Supreme Court in the aforesaid Abdul Jalil''s cases was whether the convictions u/s 26(1) of the Indian Forest Act in respect of certain acts committed in certain forests in the State of Tripura were offences said to have been committed "within reserved forests under the Indian Forest Act." The Tripura Forest Act corresponds to the Indian Forest Act. After the native State of Tripura was merged in the Indian Union, the laws in force in the Indian Union were extended to the merged States by virtue of Section 4 of the Part C.States (Laws) Act, 1950, as a consequence of which the Tripura Forest Act stood repealed. The notification issued under the Tripura Act constituting certain forests as reserved forests were held to be notifications corresponding to protected forests under Chapter IV of the Indian Forest Act but not reserved forests under Chapter II. In the narration part of the judgment in paragraph 4 it was observed:
"It is common ground that in order to constitute an offence u/s 26(1) the acts specified in the clauses of the section 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 reserved 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 above statement refers to only the broad aspects on which there was agreement. It does not amount to a decision that unless a forest is declared as a reserved forest no action can be taken u/s 5 of the Indian Forest Act. It must be stated that, as already noticed, Section 4 of the Indian Forest Act corresponds to Section 4 of the A.P. Forest Act. u/s 4, the State Government is empowered to issue notification declaring its intention to constitute any land as a reserved forest. After the procedural formalities are concluded power is conferred u/s 20 of the Indian Forest Act to issue a notification declaring a forest as a reserved forest, analogous to the notification issued u/s 15 of the A.P. Forest Act. During the interregnum, Section 5 of the Indian Forest Act prohibits doing of certain acts and that section is analogous to Section 7 of the A.P. Forest Act. The Supreme Court while dealing specifically with this question about the liability for the offences committed u/s 26(1)(a) held:
"As regards the offence under Clause (a) the learned Attorney-General conceded that it was a pre-requisite for a person being held guilty of an offence under that clause that there would be a notification u/s 4 because Section 5 which is referred to in Section 26(1)(a) reads:
"5. After the issue of a notification u/s 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such 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 Section 26(1)(a). (at para 21 P.155)
The covered legal position was conceded by the learned Attorney-General before the Supreme Court; when once a notification declaring the intention of the Government to constitute any land into a forest land is issued u/s 4 no person shall commit in relation to that land the acts specified in Section 5 (Indian Forest Act). I might mention in this context that concessions made on questions of fact alone bind the parties but not concessions on matters of law (vide Government of Tamil Nadu and Others Vs. Badrinath and Others, & Banarsi Das Vs. Seth Kanshi Ram and Others, . The decision of the Patna High Court in Mansid Oraon and Another Vs. The King, . concerns with offences committed under Clauses (f) and (h) of Section 26(1) of the Indian Forest Act and, therefore, it has absolutely no relevance to the contention advanced.
For the foregoing reasons both the contentions advanced by the learned counsel for the petitioners are negatived and the writ petitions are accordingly dismissed. The applications filed by the petitioners u/s 63 of the A.P. (Andhra Area) Estates Abolition Act and now pending before the Settlement Officer, Eluru, West Godavari district shall stand dismissed. The dismissal of these writ petitions shall not preclude the Judicial First Class Magistrate, Tadepalligudem from examining each case on its own merits with reference to the evidence adduced for deciding the question whether or not the petitioners are guilty of the offences with which they are charged. No costs.
Advocate''s fee Rs. 250/ - in each.