SUPREME COURT OF INDIA
Sri Ram Saha
Vs
State of West Bengal
Civil Appeal No. 5110 of 1999
(Shivraj V.Patil and B.N.Srikrishna)
14/10/2004
JUDGMENT
SHIVARAJ V. PATIL, J.
1. The short question that arises for consideration in this appeal is 'whether
any permission is required under Sections 4-B read with Section 4-C of the West
Bengal Land Reforms Act, 1955 (for short 'the Act') by the owners of the
orchards to fell old trees for replacing them by new saplings having greater
potential of yield.'
2. The appellant is the owner of certain land classified as 'Bagan' (garden) in
the record of rights. Since old trees in the land had been affected with
uncontrollable worms and had lost their fruit bearing ability, the appellant
decided to uproot them with an intention to renovate the garden by planting
high breed saplings. After he cut two to three trees, the local price personnel
and the Block Land Reforms Officer prevented the appellant from further
felling, citing the judgment of the Supreme Court in T.N. Godavarman
Thirumulkpad etc. vs. Union of India and others 4.
The appellant, in these circumstances, approached the High Court by filing Writ
Petition No. 16280/1997 challenging the action of the officers and seeking
certain directions. A learned Single Judge of the High Court referred the writ
petition to the Division Bench (Green Bench). By the impugned judgment, the
Division Bench of the High Court disposed of the writ petition permitting the
appellant to fell trees standing in his garden but subject to certain
conditions and restrictions. Hence, this appeal is filed by the appellant
questioning the validity and correctness of the impugned judgment contending
that to fell the trees within his garden land, the appellant was not required
to seek any permission under Section 4-B read with Section 4-C of the Act.
3. The learned counsel for the appellant in his arguments reiterated the
submissions that were made before the High Court. He contended that in the
absence of any provision in the Act or any other legislation requiring the
appellant to take permission to fell tree in his garden land, admittedly it
being not a forest land and the High Court was not right and justified in imposing
certain restrictions and conditions to fell the trees. He also brought to our
notice the decisions of the High Court dealing with similar issue. He added
that the decision of the Supreme Court in T.N. Godavarman Thirumulkpad (supra)
could not be applied to the facts of the case because the observations made and
directions given in that case relate and confine to forest lands.
4. The opposition, the learned counsel for the respondents made submissions
supporting the impugned judgment.
5. In order to appreciate the respective contentions, it is useful to refer to
the relevant provisions of the Act:-
"Section 4A. Certain, restrictions on rights of raiyats in Sadar,
Kalimpong and Kurseong sub-divisions of Darjeeling district (1) In the Sadar
sub-division, Kalipong sub-division and Kurseong sub-division of the district
of Darjeeling, the Collector of the district may, from time to time, give
directions regarding the form of cultivation to be adopted by a raiyat in
respect of his plot of land or prohibiting a raiyat from cutting more than one
tree from his plot of land except with the previous permission in writing of
the Collector or such other officer as may be authorized by the State
Government in this behalf.
Provided that in giving directions as aforesaid, the Collector shall follow
such procedure as may be prescribed.
(2) For contravention of any of the directions given under sub-section (1), the
Collector may, after giving the defaulting raiyat an opportunity, to show cause
against the action proposed to be taken, impose upon him, by order, a fine not
exceeding one thousand rupees which, if not duly paid, shall be recoverable as
a public demand.
(3) An appeal, if presented within thirty days from the date of the order
appealed against, shall lie to the Commissioner against any order passed by the
Collector under sub-section (2) and the decision of the Commissioner shall be
final.
4B. Maintenance and preservation of land - Every raiyat holding any land shall
maintain and preserve such land in such manner that its area is not diminished
or its character is not changed or the land is not converted for any purpose
other than the purpose for which it was settled or previously held except with
the previous order in writing of the Collector under Section 4C.
Provided that any raiyat may plant and grow trees on any land held by him
within the ceiling area applicable to him and to his family without any
previous order under section 4C, if such land is not cultivated by bargadar:
* Provided further that without prejudice to the provisions of Chapter IIB of
the Act, the provisions of this Section shall not apply to the diminution in
area or the change of character of any land or the conversion of any land for
any purpose other than the purpose for which it was settled or previously held,
if such diminution or change of character or conversion was made in accordance
with the provisions of any law for the time being force.
4C. Permission for change of area, character or use of land -(1) A raiyat
holding any land may apply to the Collector for change of area or character of
such land or for conversation of the same for any purpose other than the
purpose for which it was settled or was being previously used or for alteration
in the mode of use of such land.
Explanation - For the purposes of this sub-section, mode of use of land may be
residential, commercial, industrial, agriculture plantation of tea,
pisciculture, forestry, sericulture, horticulture, public utilities or other
use of land.
(2) On receipt of such application, the Collector may, after making such
inquiry as may be prescribed and after giving the applicant or the persons
interested in such land or affected in any way an opportunity of being heard,
by order in writing either rejected the application or direct such change,
conversion or alteration, as the case may be, on such terms and conditions as
may be prescribed.
(3) Every order under sub-section (2) directing change, conversion or
alteration shall specify the date from which such change, conversion or
alteration shall take effect.
(4) A copy of the order passed by the Collector directing change, conversion or
alteration, if any, under sub-section (2), or in an appeal therefrom shall be
forwarded to the Revenue Officer referred to in Section 50 or Section 51, as
the case may be, and such Revenue Officer shall incorporate in the
record-of-rights changes effected by such order and revise the record-of-rights
in accordance with such order.
* (5) If the Collector is satisfied that any land is being converted for any
purpose other than the purpose for which it was settled or was being previously
held, or attempts are being made to effect alteration in the mode of use of
such land or change of the area or character of such land, he may, by order,
restrain the raiyat from such act." *
6. By the impugned judgment, although the appellant is permitted to fell trees
standing in his garden land, as already stated above, certain conditions and
restrictions were imposed. In the impugned judgment, it is stated that the
appellant is entitled to cut one out of ten trees in two years and replace that
one with new sapling. In case, number of trees are less than ten, permission
was granted to cut one out of 5 but subject to condition that to cut one tree,
the appellant was required to replace with a new sapling. It was further
directed that the appellant will not take recourse to felling of trees without
giving one month's notice to the Collector stating therein all necessary
particulars and an undertaking to the effect that the new saplings would be
planted within one month of felling the tree. The Collector was also empowered
to inspect the land, if so desired and to take appropriate action in case
either the impugned order or the provisions of Section 4 are not complied with.
In the impugned judgment, the Division Bench also observed that the State
Government should consider enacting a comprehensive law as early as possible on
the felling of trees in non-forest areas keeping in view the environmental
concerns of the day.
7. This Court in T.N. Godavarman Thirumulkpad (supra) was dealing with forests
having regard to the provisions of the Forest Conservation
Act, 1980 (for short 'the Conservation Act') and to the environmental
and ecological aspects of the matter, considering the possible effect due to
deforestation. In para 4 of the judgment, it is stated thus:-
"4. The Forest Conservation Act, 1980 *
8. Directions given under para 5, to the extent they are relevant for the
purpose, are extracted below:-
"1. In view of the meaning of the word 'forest' in the Act, it is obvious
that prior approval of the Central Government is required for any non-forest
activity within the area of any 'forest'. In accordance with section 2 of the
Act, all on-going activity within any forest in any State throughout the
country, without the prior approval of the Central Government, must cease
forthwith.
2........
3.......
4. ....... This ban will also not affect falling in any private plantation
comprising of trees planted in any area which is not a forest." *
9. In the said judgment, certain specific directions are given to the States
specified therein. Relevant directions given for the State of Himachal Pradesh
and the hill regions of the States of Uttar Pradesh and West Bengal, to the
extent relevant, read as under:
"1. There will be no felling of trees permitted in any forest, public or
private. This ban will not affect felling in any private plantation comprising
of trees planted in any area which is not a 'forest', and which has not been
converted from an earlier 'forest'...
(2)....
(3).....
(4)......". *
10. It is clear from the aforesaid judgment of this Court that the observations
made and directions given were in relation to forest land. The term of 'forest
land' occurring in Section 2 of the Conservation Act will not only include
'forest' as understood in the dictionary sense but also includes any land
recorded as forest in the Government record irrespective of the ownership. It
is also stated that the provisions of the Conservation Act for the conservation
of forest and the matters connected therewith must apply clearly to all forests
so understood irrespective of ownership or the classification thereof. By the
directions given in the said judgment, certain bans are imposed including a ban
in respect of felling of trees in forest, irrespective of the nature of the
forest, i.e. whether the forest is public forest or private, reserved,
protected or otherwise. It is clear from the observations made and directions
given in the aforesaid judgment of this Court that though ban was imposed in
respect of undesirable activities in the forest irrespective of the nature of
the forest and its ownership but such a ban did not affect felling of trees in
any private plantation in an area which is not a forest. Thus, it is clear that
the direction given by this Court is clearly confined to felling of trees in
forest land and the said ban was not extended to non-forest private plantation.
It is made clear in the judgment that the directions given are to be
implemented notwithstanding any order at variance made or which may be made by
Government or any authority, tribunal or court including the High Court. In the
impugned judgment, the High Court having referred T.N. Godavarman Thirumulkpad
etc. (supra) of this Court, has stated thus:-
"In other words, the direction of the Supreme Court regarding the
application of ban on felling of trees in forests and non-application of the
same in non-forest private plantations has to prevail over any other deviating
order even if such order has been or is passed by the High Court. It is however
to be noticed here that while the Supreme Court expressly recorded in its
direction about the non-application of the ban in any non-forest private
plantation, the Supreme Court only nullified in clear words the orders at
variance which might have been or might be passed by any Government, authority,
tribunal or court. The Supreme Court however, did not say nor purported to say
that any statutory or enacted law regarding non-forest private plantation will
not be given effect to." *
11. In the impugned judgment, the High Court has clearly stated that ban on
felling of trees imposed by this Court was only relating to trees in forest
area and not to non-forest private plantation and that any order contrary
cannot prevail. Having said so, the High Court went on to say that this Court
did not direct that any statutory or enacted law regarding non-forest private
plantation will not be given effect to. This legal position cannot be faulted
but the High Court committed an error in its application. Admittedly, there is
no statutory or enacted law which enabled the state authorities either to take
action for felling of trees in private plantation not being forest and in the
absence of any requirement of any statutory enactment to take permission for
felling of tree in a private plantation, the High Court could not have imposed
restrictions and conditions as is ultimately done in the impugned judgment
while permitting the appellant to fell the trees.
12. The Division Bench of the same High Court dealing with a similar situation
in MAT No. 3681/97 in Md. Mustafijur Rahman and others vs. The State of West
Bengal and others having due regard to the decision of this Court in T.N.
Godavarman Thirumulkpad (supra) held that the ban on felling of trees would not
affect felling in any private plantation comprising trees planted in any area
which is not a forest. However, whether the land in that case was a forest land
or not was left to be decided by the authorities. That was a case in which
learned Single Judge had taken the view that the restrictions with regard to
the forest imposed in the decision of T.N. Godavarman Thirumulkpad (supra) did
not apply to the case as the lands were recorded as orchard / garden in the
record of rights. However, in conclusion, the learned Single Judge imposed
certain restrictions with regard to removal of trees. In appeal in MAT 3681/97,
the Division Bench of the High Court passed the order as stated above.
13. Another Division Bench of the same High Court in Re: Cutting of trees at
Mankundu 1998 (2) CLJ 119) passed an order dated 15.7.1998 directing that
there should be total ban on felling of Mahua and Kendu trees and that apart,
no other tree should be cut or fell by anybody without obtaining permission
from the local authority concerned or the District Forest Officers. This
decision runs contrary to the earlier Division Bench judgment in MAT. 3681/97
referred to above. Unfortunately, the decision of the Division Bench in MAT
3681/97 and the decision of this Court in T.N. Godavarman Thirumulkpad (supra)
were not brought to the notice of the Division Bench while deciding the case of
Mankandu on 15.7.1998. In the impugned judgment, the High Court itself has
observed that the directions given in Mankundu are inconsistent with the
directions given by this Court in T.N. Godavarman Thirumulkpad (supra)
particularly where this Court had specifically directed that its order was to
operate and had to be implemented notwithstanding any order made or that may be
made by any court or Government etc., which might be at variance and that there
was no scope for issuing such directions in respect of non-forest private plantation.
14. In Biswanath Kumar vs. State of West Bengal (1996 (II) CHN 407), a learned
Single Judge of the High Court considered a question whether the owner of an
orchard had any right to fell down trees standing there which had become old
and had lost their optimum fruit bearing capacity. In the light of Sections 4-B
and 4-C of the Act, it was held that so long as area, user and character of the
land was not changed, the provisions of Section 4-B as also the proviso thereto
would not be attracted in a given case. However, keeping in mind factors
relating to the environment and ecological balance, the learned Single Judge
directed that the raiyat will not be entitled to cut down all the trees in the
orchard or garden at a time but shall be entitled to cut once every two years
and replace the old, uneconomic and/ or unproductive tree or trees in the ratio
of 1:10 on condition of replacing the same by new sapling. The learned Judge
also gave certain other directions. It may be noted that this judgment was delivered
before this Court rendered decision in T.N. Godavarman Thirumulkpad (supra).
15. It is not in dispute that there is no enactment in the State of West Bengal
regarding felling of trees in non-forest area. It is abundantly clear and
unambiguous that the ban imposed by this Court in T.N. Godavarman Thirumulkpad
(supra) would apply only to forest land irrespective of the nature or
classification or ownership of such forest land and that the ban did not apply
to non-forest private plantation. In the impugned judgment, the Division Bench
of the High Court also accepts this position. But the Division Bench reading
Sections 4-A, 4-B and 4-C and particularly reading Sections 4-B and 4-C
together took the view that Section 4-B of the Act definitely projects a bar
against felling of trees; it may not be in respect of felling of single tree;
but felling of a number of trees at a time may in particular circumstances
amount to changing nature and character of land or the mode of its use and
thereby attract provisions of Sections 4-B and 4-C. It was further held by the
High Court that for felling of trees in non-forest private plantation,
definitely Section 4-B will be attracted and in that case, such a felling
cannot be done without obtaining permission of the Collector under Section 4-C.
Observations of the High Court in this regard are:
"The learned Judge in the decision in Biswanath Kumar vs. State of West
Bengal (supra) was of the opinion that anticipated change of the character and
user of the lands comprising orchards cannot be a ground for objecting to the
felling of the trees belonging to the owners in the absence of any law
prohibiting them from doing so. In our opinion, however, the position becomes
rather different when sections 4B and 4C are read together. The bar imposed by
section 4B is against changing the character of land or its conversation for
use for a different purpose without the previous permission of the Collector.
Cutting of only one tree in an orchard may not by itself change the nature and
character of the land or may not amount to conversion of the land for any
purpose other than the purpose for which it was settled or was previously held.
But felling of a number of trees at a time may in particular circumstances
amount to changing the nature and character of the concerned land and thereby
attract provisions of sections 4B and 4C. That trees may have some bearing on
the nature and character of the land on which they are standing or on the mode
of its use is beyond doubt. This gets exemplified by the first proviso to
section 4B which permits a raiyat to plant and grow trees on his land without
the previous order of the Collector if such land is not cultivated by Bargadar.
A land which is used as cultivable land may be converted into a different type
by planting quite a number of trees on it thereby replacing cultivation by
afforestation. The proviso permits afforestation or planting or growing of
trees of trees on the land without any order of the Collector although by doing
so the nature and character of the land or its user may be changed. But this is
not permitted if the land is under the cultivation of Bargadar so that the
Bargadar's interest in the matter of growing crops in that land and receiving
share thereof may not be jeopardized or affected. This is one aspect of the
matter. Similarly if an orchard is cleared of the trees or a number of trees
are cut down without taking any measure to protect and preserve the nature and
character of the land, in that event section 4B and section 4C will be
definitely attracted to such felling of trees. It, therefore, cannot be said
that there is altogether no statutory provision imposing any restriction on the
felling of trees in non-forest private plantation." *
16. Section 4-A of the Act imposes certain restrictions on rights of raiyats in
Sadar, Kalimpong and Kurseong sub-divisions of Darjeeling District. In these
sub-divisions under Section 4-A(1), the Collector of the District may, from
time tome, give directions regarding the form of cultivation to be adopted by a
raiyat in respect of his plot of land or prohibit a raiyat from cutting more
than one tree from his plot of land except with the previous permission in
writing of the Collector or such other officer as may be authorized by the
State Government in this behalf. Under sub-section (2) of the said Section, the
Collector may take action against defaulting raiyat for contravention of any of
the directions given under sub-section (1) and may impose fine upon him. Under
sub-section (3), an appeal is also provided against an order made under
sub-section (2). Thus, from Section 4-A, it is clear that its application is
confined to the three sub-divisions of Darjeeling District only. When by
legislation, scope and application of Section 4-A is consciously confined to
the said three sub-divisions of Darjeeling District, court cannot enlarge or
extend its scope to the other lands in the State of West Bengal situated in
areas other than these sub-divisions. An attempt to extend the scope and
application of Section 4-A to the area beyond the said three sub-divisions
amounts to courts assuming legislative functions which is impermissible
particularly when there is no ambiguity or uncertainty as to the area to which
Section 4-A applies. The said provisions cannot be read so as to extend its
application to other areas which legislature consciously did not intend to do
so. If the legislature wanted to apply Section 4-A to the entire State of West
Bengal, it could have done so. On the other hand, the legislature had expressly
confined its application to the three sub-divisions of Darjeeling District.
17. Section 4-B speaks of maintenance and preservation of land. Under this
Section, every raiyat holding any land is obliged to maintain and preserve such
land in such manner that its area is not diminished or its character is not
changed or the land is not converted for any purpose other than the purpose for
which it was settled or previously held except with the previous order in
writing of the Collector under Section 4-C. Under the first proviso to the said
Section, any raiyat may plant and grow trees or any land held by him within the
ceiling area applicable to him and to his family without any previous order
under Section 4-C, if such land is not cultivated by bargadar. From plain
reading of this Section, it is clear that a raiyat cannot diminish area of the
land or change its character or cannot convert the land for any purpose other
than the purpose for which it was settled without the previous order in writing
of the Collector. Felling of trees is not covered by this Section. Mere felling
of trees cannot be taken as diminishing the area of the land or changing its
character or converting it for any purpose other than the purpose for which it
was settled. The first proviso shows that even a raiyat can plant and grow
trees in any land held by him within the ceiling area if such land is not
cultivated by bargadar.
18. Section 4-C deals with the permission for change of area, character or use
of land. Under this Section, or raiyat holding any land may apply to the
Collector for change of area or character of such land or for conversation of
the same for any purpose other than the purpose for which it was settled or was
being previously used or for alteration in the mode of use of such land.
Explanation to sub-section (1) of Section 4-C says that for the purpose of
sub-section (1) of Section 4-C, mode or use of land may be residential,
commercial, industrial, agriculture plantation of tea, pisciculture, forestry,
sericulture, horticulture, public utilies or other use of land. In this view,
permission of the Collector is required under Section 4-C for the purpose of
change of area, character or use of land not for felling of trees in private
plantation. Mere felling of trees neither diminishes the area nor changes the
character or use of land covered by explanation to sub-section (1) of Section
4-C. Under Section 4-C(2), the Collector on receipt of application from a
raiyat for change of use of land, conversion or alteration, as the case may be,
pass an order. Under sub-section (5) of the said Section, the Collector, if
satisfied that any land is being converted for any purpose other than the
purpose for which it was settled or attempts are being made to effect alteration
in the mode of use of such land or change of the area or character of such
land, he may, by order restrain the raiyat from such act. Thus, Collector has
to satisfy himself about any contravention in regard to conversion, change of
use or change of area or character of land before passing an order to restrain
the raiyat from such Act. For any contravention of the provisions of the Act,
the Act itself has provisions to take care of contravention, if any, under the
Act. Thus, even combined reading of Sections 4-B and 4-C of the Act does not
show that a permission of Collector is required to fell trees in non-forest
private plantation area/ garden.
19. It is well-settled principle of interpretation that a statute is to be
interpreted on its plain reading; in the absence of any doubt or difficulty
arising out of such reading of a statute defeating or frustrating the object
and purpose of an enactment, it must be read and understood by its plain
reading. However, in case of any difficulty or doubt arising in interpreting a
provision of an enactment, courts will interpret such a provision keeping in
mind the objects sought to be achieved and the purpose intended to be served by
such a provision so as to advance the cause for which the enactment is brought
into force. If two interpretations are possible, the one which promotes or
favours the object of the Act and purpose it serves, is to be preferred. At any
rate, in the guise of purposive interpretation, the courts cannot re-write a
statute. A purposive interpretation may permit a reading of the provision
consistent with the purpose and object of the Act but the courts cannot
legislate and enact the provision either creating or taking away substantial
rights by stretching or straining a piece of legislation. #
20. This Court in The Commissioner of Sales Tax, U.P. Lucknow vs. M/s. Parson
Tools and Plants, Kanpur ) has taken the view that if the legislature did
not, after due application of mind, incorporate particular provision, it cannot
be imported into it by analogy, observing that 'an enactment being the will of
the Legislature, the paramount rule of interpretation, which overrides all
others, is that a statute is to be expounded 'according to the intent of them
that made it".
21. Further in para 16 of the said judgment, this Court has observed thus:-
"16. If the Legislature wilfully omits to incorporate something of an
analogous law in a subsequent statute, or even if there is a casus omissus in a
statute, the language of which is otherwise plain and unambiguous, the court is
not competent to supply the omission by engrafting on it or introducing init,
under the guise of interpretation, by analogy or implication, something what it
thinks to be a general principle of justice and equity. To do so 'would be
entrenching upon the preserves of Legislature" (At p.65 in Prem Nath L
Ganesh vs. Prem Nath, L. Ram Nath, AIR 1963 Punj 62, Per Tek Chand, J.), the
primary function of a court of law being jus dicere and not jus dare." *
Further para 23 of the same judgment reads:-
"23. We have said enough and we may say it again that where the
Legislature clearly declares its intent in the scheme and language of a
statute, it is the duty of the Court to give full effect to the same without
scanning its wisdom or policy, and without engrafting, adding or implying
anything which is not congenial to or consistent with such expressed intent of
the law-giver;...." *
22. In Sankar Ram & Co. vs. Kasi Naicker and others, ), this Court in
para 7 has stated thus:-
"7. It is a cardinal rule of construction that normally no word or
provision should be considered redundant or superfluous in interpreting the
provisions of a statute. In the field of interpretation of statutes, the courts
always presume that the legislature inserted every part thereof with a purpose
and the legislative intention is that every part of the statute should have
effect. It may not be correct to say that a word or words used in a statute are
either unnecessary or without any purpose to serve, unless there are compelling
reasons to say so looking to the scheme of the statute and having regard to the
object and purpose sought to be achieved by it..." *
23. Thus, in the light of legal position explained in various decisions, the High
Court was not right in expanding the scope and application of Section 4-A so as
to apply it to the areas in the State of West Bengal other than the area
specified in three sub-divisions of Darjeeling District. When the intention of
the legislature is clear to confine its application to the limited area, the
court could not ignore it. The High Court was also not right in reading
something more in Sections 4-B and 4-C in regard to the felling of trees in the
absence of any such legislative intention expressed in these provisions. The
court could not have added something more the these Sections. #
24. The High Court, being clear in its mind that the ban imposed in T.N.
Godavarman Thirumulkpad (supra) in the matter of felling of trees did not
extend to non-forest private plantation and there being no State enactment
dealing with the felling of trees in non-forest private plantation, in our
view, was not right and justified in reading in the provisions of Sections 4-B
and 4-C that a permission of the authorities is required for felling of trees
even in non-forest private plantation / orchard. The High Court was also not
correct in imposing further restrictions and conditions on the appellant for
felling trees in his private non-forest garden land. The High Court in impugned
judgment itself has observed that the State Government may consider the
desirability of having enacted a comprehensive law as early as possible
regarding felling of the trees in non-forest areas with a view to taking care
of environmental necessities of the time. If the provisions of Section 4-B read
with Section 4-C of the Act serve such a purpose and if the High Court was
clear in that regard, there was no reason to make such a observation. Nothing
prevents the State Government to enact law in this regard but in the absence of
such a law and till law is enacted in that regard, the High Court was not right
in imposing restrictions as is done in this case in regard to felling of trees.
#
25. The question set out above in the beginning of this judgment is answered in
the negative.
26. In the result, the impugned judgment so far it relates to imposition of
restrictions and conditions on the appellant for felling the trees cannot be
sustained and they are set aside. To make the position clear, we state that no
such permission is required for felling trees in the non-forest private
plantation / orchard/ bagan. The appeal is allowed accordingly in the above
terms. No costs.