38Protection of forests at request of owners

(1) The owner of any land or, if there be more than one owner thereof, the owners of shares therein amounting in the aggregate to at least two-thirds thereof may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector their desire--

(a) that such land be managed on their behalf by the Forest-officer as a reserved or a protected forest on such terms as may be mutually agreed upon; or

(b) that all or any of the provisions of this Act be applied to such land.

(2) In either case, the¹[State Government] may, by notification in the²[Official Gazette], apply to such land such provisions of this Act as it thinks suitable to the circumstances thereof and as may be desired by the applicants.

STATE AMENDMENT

Uttar Pradesh

Amendment of section 38-A of Act XVI of 1927--In section 38-A of the principal Act:

(1) for clause (b), the following shall be substituted:

"(b) 'Forest' means a tract of land covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, streamflow, protection of land from erosion or other such matters, and shall include--

(i) land covered with stumps of trees of a forest

(ii) land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the first day of July, 1952;

(iii) such pasture land waterlogged or cultivable or non-cultivable land, lying within, or adjacent to, a forest, as may be declared to be a forest by the State Government."

(2) after clause (b), the following shall be added as new clause (c) and (d):

"(c) 'Forest land' means a land covered by a forest or intended to be utilized as a forest; and

(d) 'Prescribed' means prescribed by rules made under this Act."

[Vide Uttar Pradesh Act XXI of 1960, s. 3]

Amendment of section 38-F of Act XVI of 1927--In section 38-F of the principal Act, between the figure and letter "38-C", and word "related" the words, figure and letters "or 38-H" shall be inserted.

[Vide Uttar Pradesh Act XXI of 1960, s. 4]

Amendment of Section 58-G of Act XVI of 1927-- In Section 28- G of the principal Act, te word "and" occurring between the comma and the figure and letter "38-D" shall be deleted and thereafter between the figure and letter "38-A" and the word "shall", the word, figure and letter "and 38- H" shall be inserted.

[Vide Uttar Pradesh Act XXI of 1960, s. 5]

Addition of new section 38-H to 38-M in Act XVI of 1927--After Section 38-G of the principal Act, the following shall be added as new Sections 38-H to 38-M:

"38-H. Power to take over management--(1) Whenever it appears to the State Government that the taking over of the management of any particular forest, or forest land, is necessary or expedient in the public interest or in order to secure the proper management thereof, particularly with a view to ensure its planned development as a forest, it may by notification in the Official Gazette do so for all or any of the said purposes for such period not exceeding fifteen years, as may be specified in the notification.

(2) No notification under sub-section (1) shall be issued until-

(a) after the issue of a notice by the Forest Officer to the claimant or the owner or tenureholder of the forest or forest forest land, as the case may be, affording him reasonable opportunity to show cause, within a period of not less than fourteen days from the date of service of the notice on him to be specified in such notice, why management of the forest or forest land specified therein be not taken over; and

(b) objection, if any, have been heard and disposed of by the Forest Officer in the manner prescribed.

(3) The notice referred to in sub-section (2) shall be served upon the person concerned in accordance with the provisions of Section 38-D.

38.I. Consequences of Notification under Section 38-H.-- The State Government shall, in respect of a forest, or forest land for which notification under Section 38-H has been issued--

(i) place the forest, or forest-land, as the case may be with effect from the date of the notification, in the charge of a Forest Officer, for carrying out the purposes mentioned in the notification, and thereupon the provisions of Section 5 shall mutatis mutandis apply to such a forest or forest land, as the case may be; and

(ii) be liable and pay to the claimant or the owner or the tenure-holder of the forest, or forest land, as the case may be, the balance of the income, if any, accruing to it therefrom, for the period commencing from the date of notification till the date it is released under Section 38-L after deducting therefrom such percentage of it, not exceeding twenty, as may be prescribed, for cost of management and the amount, if any spent by the State Government on its development.

38-J. Payment in respect of forest already in possession of the State Government-- In the case of forest, possession whereof was taken over by the State Government prior to the commencement of the Indian Forest (U.P. Amendment) Act, 1960, and the management whereof, is takenover in accordance with the provisions of Section 38-H, the State Government shall, in the absence of a contract between the State Government and the person concerned to the contrary, be liable to pay, for the period commencing from the date of possession till the issue of the notification under the said section the balance of income accruing therefrom in accordance with the provisions of Section 38-I (ii) as if the provisions of the aforesaid Act has been in force at all material dates and the management of such forest had been assumed on the date of taking over possession thereof; anything contained in any other law, custom, usage for the time being in force or contract to the contrary notwithstanding.

38-K. Permission to cultivate areas lying within a forest or forest land taken over under this Act-- (1) The State Government may, where it is satisfied that it is necessary so to do in the public interest on the application of the person whose forest or forest land, as the case may be, has been taken over under Section 38-H, allow him to cultivate such part of it, not being in excess of one fifth of the total area of such forest or forest land, as the case may be, and such period, not being beyond the period of its management, as may be satisfied in the order granting the permission.

(2) An application under sub-section (1) shall be submitted to the Forest Officer-incharge of the forest or the forest land, as the case may be, who shall forward the same, with his recommendations thereon, to the State Government.

(3) The decision of the State Government on the application under sub-section (2) shall be final and be not questioned in any Court of law.

38-L. Release of a forest or forest land from management--The State Government may, at any time by notification in the Official Gazette, release from its management any forest or forest land, as the case may be, takenover under Section 38-H and thereupon the forest or the forest land, as the case may be, shall ceases to be under the management of the State Government, and the liability of the State Government in respect of the forest or the forest land, as the case may be, shall cease with effect from the date of release in the notification.

38-M. Powers to make rules--(1) The State Government may after previous publication in the Official Gazette, make rules to carry out the purposes of this Act.

(2)In Particular and without prejudice to the generality of the foregoing power, such rules may-

(a) provide for the items for which and the manner in which, the cost of management shall be calculated;

(b) prescribe the procedure for the hearing and disposal of objections under this Act;

(c) prescribe the mode of management or development of the forest or the forest land taken over under this Act;

(d) prescribe the form of application under Section 38-K and the particulars that must be given therein; and

(e) prescribe any other matters which are to be, and may be, prescribed under this Act.

(3) All rules made under this Act shall, soon as may be after they are made, be laid before each House of the Legislature while it is in session, for a total period of fourteen days extending in its one session or more than one successive sessions and shall, unless some later date is appointed, take effect from the date of their publication in the official Gazette, subject to such modifications or annulments as the two Houses of the Legislature may agree to make; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder."

[Vide Uttar Pradesh Act XXI of 1960, s. 6]

Insertion of a new Chapter V-A in Act XVI of 1927-- After Chapter V of the Indian Forest Act, 1927 the following shall be added as a new chapter V-A:

"CHAPTER V-A

OF THE CONTROL OVER FORESTS OF CLAIMANTS

38-A. Definition-- In this Chapter unless there is anything repugnant in the subject or context:

(a) "Claimant" as respects any land means a person claiming to be entitled to the land or any interest therein acquired, owned, settled or possessed or purported to have been acquired, owned, settled or possessed whether under, through or by any lease or licence executed prior to the commencement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, or under and in accordance with any provision of any enactment, including

(b) "Forest" includes--

(i) any land covered by trees and shrubs, and

(ii) pasture lands.

38-B. Power to regulate or prohibit breaking or clearing, etc.--(1) The State Government may by notification in the Official Gazette regulate or prohibit in any forest (situate in or upon any land of a claimant) --

(a) the breaking up or clearing of the land for cultivation or any other purpose;

(b) the firing or clearing of the vegetation;

(c) the girdling or trapping of burning of any tree or the stripping off the bark from any tree;

(d) the lopping and pollarding of trees:

(e) the cutting, sawing conversion or the removal of trees-where such regulation or prohibition appears necessary--

(i) for the conversation of trees and forests; or

(ii) for the improvement of grazing; or

(iii) for the maintenance, increase and distribution of supply of fodder, timber or fuel, or

(iv) for the protection of land against erosion; or

(v) for subserving the interests of the general public.

(2) No notification shall be made under sub-section (1) until after the issue of a notice to the claimant of the land calling on him to show cause within a reasonable period, not less than fourteen days and not exceeding thirty days, to be specified in such notice, why such notification should not be made, and until objections, if any, and any evidence he may produce in support of the same, have been heard by an officer not below the rank of an Assistant Collector of the first class appointed in that behalf and considered by the State Government.

(3) It shall be lawful for the State Government to make the notification under sub-section (1) either in respect of any particular forest or generally in respect of all forest situate in an area.

38-C. Prohibition or regulation in emergent cases-- Where it is proposed to issue a notification in respect of any forest or generally all the forests in any area under Section 38-B and the State Government is satisfied that immediate action is necessary to prevent the doing of all or any of the acts mentioned in clauses (a) to (e) of sub-section (1) of the said section, it may by notification in the Official Gazette prohibit the doing except as and in the manner specified, of such act in respect of that forest or, as the case may be, generally all forests situate in any area as may be specified and, thereupon, no person shall, notwithstanding any claim, right, agreement, custom, usage or law to the contrary, do any of the said acts in such forest or forests until expiry of six months from the date of the notification and until the objection, if any, filed in pursuance of the notice under sub-section (2), of Section 33-B, has been heard and considered by the State Government.

38-D. Service of notice-- The notice under sub-section (2) of Section 38-D shall-

(a) In case of a notification affecting an individual person (Not being a corporation, firm or body of persons) be served on that person--

(i) personally by delivering or tendering to his the notice, or

(ii) by registered post, or

(iii) where the person cannot be found, by leaving an authentic copy of the notice with some adult male member or by affixing such copy in some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain, and

(b) In the case of a notification of a general nature in relation to all forests in an area, be served by publication in the Official Gazette and it shall not be necessary, unless the State Government so directs, to serve the notice individually on the claimants.

38-E. Application of Section 36 of Act XVI of 1927-- The provisions of Section 36 shall mutatis mutandis apply to any regulation or prohibition notified under Section 38-B or 38-C.

38-F. Penalties-- Any person who--

(i) fell, girdles, lops, taps, pollards or burns any tree or strips off the bark or otherwise damages any tree, or breaks up or clears for cultivation or any other purpose, any land in the forest to which the notification under Section 38-B or 38-C relates, or

(ii) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading, or

(iii) permits cattle to damage any such tree, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.

38-G. Savings-- The powers conferred by Sections 38-B, 38-C, and 38-D shall be in addition to and not in derogation of any other powers conferred on any authority by or under any other provision of this Act."

[Vide Uttar Pradesh Act V of 1956, s. 2]

Amendment of Section 38-D of Act XVI of 1927.-- In Section 38-D of the Indian Forest Act, 1927 as amended in its application to Uttar Pradesh (hereinafter called the principal Act), for the word "and" and the comma preceding it in sub-clause (iii) of clause (a) semi-colon shall be substituted and thereafter the following new clause (aa) shall be inserted:

"(aa) In case of a notification affecting a corporation , firm or body of persons, be served on the manager, principal officer or agent thereof in the manner provided in clause (a); and".

[Vide Uttar Pradesh Act XI of 1964, s. 2]

Amendment of section 38-F of Act XVI of 1927.--In section 38-F of the Principal Act, for clause (i) of following shall be substituted.

"(i) breaks up or clears any land for cultivation or any other purpose, fires or clears any vegetation, girdles, taps, burns, lops, pollards, fells, cuts, saws, converts or removes any tree, or strips off the bark from any tree, in any forest in respect of which a notification under section 33-8 of 38-C or 38-H has been issued, or does any of the aforesaid acts in contravention of the provisions contained in sub-section (4) of section 38-H, or".

[Vide Uttar Pradesh Act XI of 1964, s. 3]

Amendment of section 38-H of Act XVI of 1927.--In section 38-H of the principal Act, after subsection (3) the following shall be added as sub-section (4) thereof:

"(4) No person shall, after the service of the notice referred to in sub-section (2), do or permit or cause to be done, save with the permission of the Forest Officer, any of the following acts on or in respect of such forest or forest land, namely--

(a) the breaking up or clearing of the land for cultivation or any other purpose;

(b) the firing or clearing of the vegetation;

(c) the girdling or tapping or burning of any tree or the stripping off of the bark from any tree;

(d) the lopping or pollarding of trees;

(e) the felling, cutting, sawing, conversion or removal of trees;

until--

(i) where objections under clause (a) of sub-section (2) have been filed, the disposal thereof under clause (b) of that sub-section and thereafter, unless the objections have been allowed, for a further period of six months or the publication of the notification under sub-section (1), whichever is earlier;

(ii) where no objections under clause (a) of sub-section (2) have been filed, the publication of the notification under sub-section (1) or the expiry of six months from the date of service of the notice, whichever is earlier."

[Vide Uttar Pradesh Act XI of 1964, s. 4]