Narasimham, C.J.
1. This is a petition under Article 226 of the Constitution challenging the validity of notification No. 14386-6F-130/48-R., dated 20-12-1949 of the Government of Orissa in the Revenue Department taking over the management of the Forests within the former zamindari of the petitioner known as Lanjigarh in Kalahandi district. A copy of the Nitiftcation is given below:
'Government of Orissa
Revenue Department.
The 20th December, 1949.
No. 14386-6F-130/48-R. : In exercise of the powers conferred by Clause (a) of Sub-section CD of Section 80 of the Indian Forest Act 1927 (XVI of 1927), read with the notification of the Government of Orissa in the Home Department No. 2 A., dated 1-1-1948 the Governor of Orissa is pleased to direct that the forests of the Zamindaries of Kalahandi State mentioned in the Schedule annexed hereto shall be managed by the Government of Orissa in the Forest Department with effect from 1-1-1950 as the Government is interested Jointly with the respective zamindars in the forest and waste land and the produce thereof.
Schedule1.
Madanpur Rampur
Zamindary
2.
Lanjigarh
ditto
3.
Karlapat
ditto
4.
Jaipatna or Mahulpatna
ditto
5.
Kashipur
ditto
Whereas the Government of Orissa has undertakenthe management of the forests of zamindari in theKalahandi State in pursuance of Clause (a) of Sub-section (1) of Section 80 of the Indian Forest Act, 1927(XVI of 1927) read with the notification of theGovernment of Orissa in the Home DepartmentNo. 2 A., dated 1-1-1948.
Now therefore in exercise of the powers conferred by Sub-section (2) of the said Act, the Governor of Orissa is pleased to declare that provisions of Chapters II and IV of the said Act shall apply to the said forests.
By order of the Governor
P. C. Das
Secretary to Government.'
2. Kalahandi was one of the former Orissa States which merged with the Union of India with effect from the 1-1-1948, after the Ruler of that State had executed the well-known merger agreement in the middle of December 1947. The petitioner was one of the few Zamindars in that State. On 25-12-3947, the Ruler of Kalahandi released from the management of the State the forests of the petitioner's zamindari. But this order of release was subsequently annulled by the Government as not being bona fide, and that order of annulment was not challenged before us.
3. The main point urged by Mr. Mohanty in support of this petition is that under Section 80 of the Indian Forest Act, 1927, the Government could undertake the management only of those forests in which the Government and any other person are jointly interested. It has no jurisdiction to take over the management of those forests in which Government had no proprietary or pecuniary interest at all. He relied on a Division Bench decision of this court reported in Biswambhar Sing v. Secy. to Govt. of Orissa, AIR 1952 Orissa 28(A), where it was held that the issue of such a notification under Section 80 of the Forest Act in respect of the forests of the Zamindars of Hamgir and Sarapgarh in Gangpur State, was invalid as the entire rights in the forests belonged to the Zamindars and the Government had no proprietary interest in them, Mr. Mohanty urged that the petitioner's right in the forests of Langigarh was the same as the right which the Hemgir Zamindar had in his forests and that consequently the aforesaid decision would apply with full force.
4. The Advocate General. On the other hand, contended that the present case is distinguishable on facts from the case cited above inasmuch as there is ample documentary evidence to show that the Ruler of Kalahandi and (after merger) the Government had proprietary interest also in the forest of Langigarh and that consequently they were justified in issuing a notification under Section 80 of the Indian Forest Act.
5. In view of the aforesaid decision, it may now be taken as well established that a notification under Section 80 of the Indian Forest Act can be validly issued only if the Government and any other person have joint proprietary or pecuniary interest in a forest. The interest which the Government may have to conserve a forest in its capacity as a sovereign is not an 'interest' as contemplated in that section. The Ind an Forest Act was validly applied throughout the former Orissa States soon after merger and the notification under Section 80 of the Act cannot be succesfully challenged unless it can be held from the papers filed by both sides that the Government have no proprietary or pecuniary interest in Lanjigarh forest.
6. In the Hemgir case, there was a judgment of the Commissioner of Chhotanagpur in 1891 in which it was clearly held the Ruler of Gangpur had no interest in the forests of Hemgir. This exclusive right of the Zamindar of Hemgir was also recognised in the recent report on Land Tenures and the Revenue System of the Orissa and Chhatisgarh States by Mr. R.K. Ramadhyani. The State of Orissa also did not contest the exclusive proprietary Interest of the zamindar in the forests but urged that the general controlling power which was exercised first by the Ruler and then by the Government would also be an 'interest' within the meaning of Section 80. This argument was, however, negatived by us in that decision.
7. In the present case, however, there is an acute controversy between the parties as to whether the petitioner has exclusive proprietary interest in the forest or else he and the Government had joined proprietary interest. The petitioner bases his claim mainly on some observations in the Report of Sir Richard Temple of the year 1863, an extract from which is quoted below :
'57. There is, however, one point connected with the land of these Chiefs regarding which come restriction appears to be necessary and desirable, viz., the forests. Over timber forests, former Governments, while not entirely denying the rights of the Zamindars, always asserted independent rights; that is to say, they restricted the Chief in regard to cutting timber if it was found necessary so to restrict him, and they cut timber for their own use as they pleased ..... Suchrestrictions therefore it is proposed to impose by a special clause in the Sanads..... The objectof such restrictions would be only the conservation of the timber resources in the Chief's country from regard to the general good; ..... But withexception of these restrictions, the particulars of which would be specified from time to time by the Officers of Government in the Forest Department, the Zamindar's management of the lands composing his Zamindari would, as stated, be absolutely free from interference.'
From this extract, it would appear that though the Ruler as Sovereign had powers to impose restrictions for the conservation of the timber resources in the forests, the proprietary rights of the Zamindars over the forests were complete and not shared jointly by them with the Ruler. In Ramadhyani's report, Vol. III, also there is the following passage regarding the rights of the Zamindars of Kalahandi over their forests:
'42. The Zamindars have full rights over their forests and have their own forest staff. The question of control is under correspondence.'
8. But there are some previous decisions of the then Political Department from which it would appear that some sort of proprietary right of the Ruler of Kalahandi over the forests within the Zamindaries of his State was recognised. Sometime in 1906 there was a dispute between the Zamindar and the Ruler of the State as to whether the zamindar could grant lease of timber of Lanjigarh forest to the Bengal Trading Company. The then Political Agent in his letter No. 3505 dated the 17th September. 1908 (Annexure 'C' to the State of Orissa's counter-affidavit) informed the Superintendent of Kalahandi State as follows :
'I would request you at once personally to explain the terms of the lease to the Zamindar and point out to him that though he has no rights to sell timber for export I have as an act of concession allowed him to receive half the royalty dividing it with the State.'
The then Zamindar also in his letter dated the 17th October. 1906 (annexure 'D') accepted this arrangement made by the Political Agent. On the 18th January 1907 the Government of Bengal in their letter No. 349 P. addressed to the Superinten-dent. Tributary Mahals, Orissa (Annexure 'A') gave their sanction to the arrangement made by the Political Agent regarding the forest rights of six zamindaries in Kalahandi State. As this letter is the basis of the claim of the State of Orissa, I may quote paras 2 and 3 :
'No. 349P' Political Department, Political Branch.
From R.W. Carlyle, Esqr., C. I. E.,
Chief Secretary to the Govt. of Bengal.
To The Commissioner & Superintendent,
Tributary Mahals, Orissa.
Dated, Calcutta, the 18th Jan., 1907.
Sri,
XX XX XX2. It appears that the six zamindars in Question viz., the zamindars of
1. Karlapat
4. Kashipur
2. Lanjigarh
5. Mahulpatna
3. Rampur Madanpur
6. Rampur Thuamul
have no other forest rights in their respective forests than those of enjoying them for their own use and for the use of their raiyats and that they therefore cannot sell timber from their forests for export. It is also stated that in 1894 the Chief of Kalahandi levied and collected a takoli of 5 per cent on such forest revenue as was derived from the forests in the zamindaries and in 1895 raised the takoli to 10 per cent. Prom this it is Inferred that on the one hand the Chief practically assents ed to the zamindars deriving some income from their forests, while on the other hand the zamindars admitted his right to charge a tax on jungle products. The following proposals have therefore been submitted for the sanction of Government.
1. That the present takoli of 10 0/0 cut on jungle products levied from the, zamindars in Kalahandi should remain unaltered for the present.
2. That when leases for timber are granted in any of the zamindaries, the net profit should be divided equally between the Zamindar and Chief; and
3. That all forest leases for timber for forest produces should be granted under the sanction of and by the Political Agents and that the zamindary forests should be controlled as regards timber leases by the State Forest staff.
3. The first two proposals are sanctioned; as regards the third, I am to say that forest leases in the Native States of Orissa and Chhotanagpur as well as in Zamindaries in Gangpur are now submitted to Government for sanction. It is advisable that the present procedure should be followed and that the forest leases for the zamindaries of the Kalahandi State should be submitted for the Sanction of Government unless and until the forest o the Native States is appointed(?) In the latter contingency the question can be reconsidered if necessary.4. XX XX XX'
It will be seen from the aforesaid extract that itwas held that the Zamindar had no other forestrights in his zamindary other than those of enjoying the forest for his own use and for the use ofhis raiyats. He had no power to sell timber fromthe forest for export. The relative rights of theZamindar and the Ruler of Kalahandi as ultimately sanctioned by the Government were as follows:
(i) The Zamindar should pay takoli 10 percent on jungle products to the Ruler; and
(ii) Whenever leases for timber are granted in the zamindary the net profit should be divided equally between the Zamindar and the Ruler.
The right of levying ten per cent of takoli on jungle products may be said to be the right exercised by the Ruler as Sovereign of the State as the expression 'takoli' is generally used in the former Orissa States as synonymous with revenue. But the right of the Ruler to appropriate one half of the net profits whenever leases for timber are granted by the Zamindar cannot be a mere sovereign right but it is a proprietary right. Mr. Mohanty, however, urged that the division of theprofits half and half between the Ruler and the Zamindar was only when the timber was leased out for export from the State and that it was similar in nature to export duty levied by a Sovereign. Hence, he urged that this right of the Ruler as recognised in the letter of 1907 was also a sovereign right and that the Ruler Of Kalahandi never had any proprietary interest in the forests of the zamindaries within his State.
9. In a summary proceeding of the present type, it is obviously difficult to decide the question. No other document bearing on the respective rights of the Ruler and the Zamindar has been filed by either party nor is there any evidence to show how the income from the forests of the Lanjigarh zamindary was actually apportioned between the Ruler and the Zamindar from 1907 till the date of merger. Though the use of the expression 'for export' in the aforesaid letter of the Government of Bengal may, to some extent, support the contention of Mr. Mohanty the other observations in that letter seem to indicate that the Zamindar did not have full proprietary interest in his forests. Thus, it is clearly mentioned that the only right which the Zamindar had in his forest was the right of enjoying the forest for his own use or for the use of the raiyats. Whenever any lease for timber was granted whether the timber is exported outside the State of Kalahandi or not, the right of the Ruler to claim half of the net profit was recognised. If this was in the nature of export duty, it is not clear as to how the expression 'profit' was used. I do not wish to say anything definite on the subject as it may prejudice the rights of the parties in any subsequent litigation. But it is sufficient to point out that from the papers filed by the parties it cannot be held definitely that the Zamindar had exclusive proprietary interest and the State's claim to joint proprietary interest cannot be brushed aside as unfounded. Hence, this case is clearly distinguishable from the Hemgir case reported in AIR 1952 Orissa 28 (A). An elaborate investigation on facts will have to be made with a view to adjudicate on the rights of the parties. This Court in exercise of its jurisdiction under Article 226 of the Constitution cannot obviously adjudicate this question. The appropriate forum is the Civil Court.
10. It is true that sometime in 1942 the then Political Agent issued general- instructions (Annexure 'E') for management of zamindary forests In Kalahandi State. These instructions were issued in exercise of sovereign power. But they do not appear to supersede the rights between the Ruler and the Zamindar as sanctioned in the letter of 1907. Ramadhyani's Report does not say anything about the decision of the then Government of Bengal in 1907 and consequently, his observations about the rights of the Zamindars in the forests may be open to question.
11. For the aforesaid reason, I am not inclined to accept the contention of the petitioner that the State of Orissa as the successor in-interest of the Ruler of Kalahandi has absolutely no proprietary or pecuniary interest in the forest of Lanjigarh so as to render invalid the notification issued under Section 80 of the Indian Forest Act. The main prayer of the petitioner must, therefore, fail.
12. It was further urged by Mr. Mohanty on behalf of the petitioner that bamboos in the forests are not 'timber' and that the Government had no right to appropriate fifty per cent of the profits derived from the sale of bamboos in pursuance of the notification issued under Section 80 of the Indian Forest Act. The question as to whether bamboos also would come within the general expression 'timber' need not be decided in the present petition. As I have already pointed out, therespective rights of the parties can be adjudicated appropriately only in the Civil Court and there this question would undoubtedly be fully investigated. The action of the State of Orissa seems to be based mainly on the decision of the Government of Bengal on the 18th January, 1907 and on the materials now available it cannot be said that once by us under Article 226 of the Constitution, the action is invalid so as to necessitate interfere.
13. I would, therefore, dismiss this petition. Both parties will bear their own costs.
Das, J.
14. I agree.