ORDER
A. Misra, J.
1. Each of the petitioners has been convicted under Section 26(1)(h) of the Indian Forest Act and sentenced to a fine of Rs. 50/-, and in default, to undergo rigorous imprisonment for one month.
2. According to the prosecution, on. 25th September 1964, petitioners were detected in clearing bushes, breaking land and felling some trees in the Dhaniapunji compartment of Kududa reserved forest. They were prosecuted for an offence under Section 26(1)(h) of the Indian Forest Act. Petitioners denied to have committed any offence, while petitioner No. 1 claimed that as Mundari Khunt-kathidar of village Dhaniapunji, he had the right to clear the jungle and perform puja at the place of occurrence. They also contended that the area in question is not a reserved forest.
3. Prosecution examined, in all, four witnesses including the forest guards (P. Ws. 2 to 4) who detected the offence, P. W. 1 is the Forester who made an enquiry on receipt of the report front P. Ws. 2 to 4, visited the spot of occurrence and noticed the clearing of the area in the reserved forest and cutting of trees. The learned Magistrate accepted the testimony of the P. Ws, convicted and sentenced the petitioners, as stated above.
4. Learned Counsel for petitioners does not question the merits of the evidence on the basis of which the petitioners are found to have engaged themselves in clearing bushes, breaking land and cutting trees at the place of occurrence, but assails the conviction and sentence on the following two grounds : (1) Petitioner No. 1 as Mundari Khuntkathidar of village Dhaniapunji possessed the right to clear the jungle and establish settlement and (2) prosecution has failed to prove that the place where the clearing of bushes and breaking of land was committed is within the reserved forest.
5. Point No. 1 : - Admittedly, the place of occurrence appertains to the ex-State area of Gangpur. Learned Counsel for petitioners urges that under the provisions of the Chhotanagpur Tenancy Act, petitioner No. 1 has a right to clear bushes and break land even inside a reserved forest for establishing a settlement for residence of people. Even assuming that under the said Act petitioner No. 1 has any rights as claimed by him, it has not been shown that any such provision was extended to or was in force in the ex. State of Gangpur. Therefore, this contention has no merit.
6. Point No. 2 : - Next it is argued that in the absence of a notification under Section 20(2) of Indian Forest Act, the area cannot be treated as a reserved forest, and as such, the acts of petitioners will not constitute an offence under Section 26(1)(h). In support of this contention, he relies on a decision reported in (1966) 32 Cut LT 299, Sanatan Mahallik v. State. There is no dispute that to constitute a reserved forest under the Indian Forest Act, the requirements of the procedure laid down in the Act must have been complied with followed by a notification under Section 20(2). Learned Counsel for the State, however, contends that the area in question is a reserved forest under Section 20.A of the Indian Forest (Orissa) Amendment Act of 1954, and as such, the question of a notification under Section 20(2) is irrelevant. Sub-section (1) of Section 20.A of the aforementioned amending Act runs as follows:
20-A. Notwithstanding anything contained in this Act or in any other law for the time being in force any forest land or waste land in the merged territories which had been recognised by the Ruler of any merged State immediately before the date of merger as a reserved forest in pursuance of any law, custom, rule, regulation, order or notification for the time being in force or which has been dealt with as such in any administration report or in accordance with any working plan, or register maintained and acted upon immediately before the said date and has been continued to be so dealt with thereafter, shall be deemed to be reserved forests for the purpose of this Act.
Apart from the evidence of P. W. 1 that the Kukuda forest within which the clearing of bushes and breaking of land took place is a reserved forest, the prosecution also produced the working plan of the ex-State of Gangpur wherein the Kukuda forest has been classified as a reserved forest prior to the date of merger. The Orissa Gazette dated 8-2-63 also shows that the State Government recognised, maintained and acted upon the working plan of the ex-State of Gangpur under a notification dated 24-1-63. As the working plan was not on record, learned Counsel for petitioners questioned the correctness of the statements made to that effect in the trial Court judgment. The prosecution produced the working plan of the ex-State of Gangpur, on verification of which, it is found that this Kukuda forest has been classified as a reserved forest. Thus, under Section 20-A of the Orissa Amendment to the Indian Forest Act, the Kukuda forest is a reserved forest, and as such, the acts of petitioners clearly amounted to an offence under Section 26(1)(h) of the Indian Forest Act. Hence, they have been rightly convicted and sentenced.
7. In the result, the revision fails and is accordingly dismissed.