Mysore Balakrishna Rao v. Secretary Of State For India

JUDGMENTS.

The Chief Justice. — This is a suit brought by the plaintiff against the Secretary of State in Council to establish his title to, and to recover possession of, certain lands in the village of Putlampalli, which in the year 1905 were declared to be reserved forest by a notification under Sect. 16 of the Madras Forest Act and have since been in the possession of Government. The plaint alleges that the declaration and taking possession were illegal and ultra vires, because the Forest Settlement Officer did not give notice to the plaintiff, or his agent, as is required by Sect. 6 of the Act before proceeding to constitute the lands a reserved forest. The plaintiff gave evidence that he was never served with notice, and, in the absence of any evidence to the contrary, the District Judge found that this was so, and this finding has not been seriously contested. He inferred, however, from Exhibits 1, 2 and 3 that the plaintiff was presumably aware that the suit lands were being included in the reserved forest nearly a year before the publication of final notification under Sect. 16, and held that, as the plaintiff did not avail himself of his right under Sect. 17 to satisfy the Forest Settlement Officer, if he could, before the publication of the notification that he had sufficient cause for not preferring his claim within the period prescribed for the submission of claims in the notices issued in the year 1895, and so secure an investigation of his claim, the irregularity was cured and did not prevent the plaintiff being barred under that section. No authority has been cited before us in support of this view, and I am unable to accept it. Under the Act the Forest Settlement Officer is constituted a Court for the decision of claims to lands which it is proposed to include in a reserved forest as between Government and the claimant, and in the event of the claim being allowed he is required under Sect. 10, if no arrangement is come to with the claimant, either to exclude the land in question from the proposed forest, or to acquire it for Government under the Land Acquisition Act. Under Sect. 6 he is required, besides publishing notices calling for claims at the Head-quarters of each Taluq in which any part of the land is situated and at every Town and Village in the neighbourhood of such land, to serve special notice to the same effect on every known or reputed owner or occupier of any land included in or adjoining the land proposed to be constituted a reserved forest, or his agent, or manager; and it is not disputed that the plaintiff, as the registered Inamdar of the village in which the suit land was situated, should have received notice under this section. It should also be stated that there is no evidence that the steps which were being taken under the Act came to the knowledge of the plaintiff until more than five years after the issue of the proclamation under Sect. 6. In these circumstances it is, I think, clear that the Forest Settlement Officer, in the absence of the notice required by the section, had no jurisdiction to make any decision affecting the rights of the plaintiff. Numerous cases might be cited in support of this position but it is sufficient to cite me decisions of their Lordships in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor, and Saunby v. London (Ont) Water Commissioners.

In the latter it was held by their Lordships that the Statutory Commissioners having proceeded without serving the notice required by the Act, the appellant had not lost his ordinary right of action for the trespass on his property. Reference may also be made to the forcible language of Lord Macnaghten in Herron v. Rathmines and Rathgar Improvement Commissioners, and to Rameswar Singh v. Secretary of State for India.

If, as I hold, the notification issued under Sect. 16 is not binding on the plaintiff and his rights are not barred by Sect. 17, I agree with the District Judge that he is entitled to a decree under the terms of his inam title-deed, Exhibit K; his inam tenure has been converted into a permanent freehold, to use the language of the grant; and the only question is, whether it includes the unassessed waste lands in the village which have been included in the reserved forest. Exhibit K acknowledges his title to a personal inam consisting of the right to the Government revenue on land claimed to be 391-69 acres of dry and 287-69 acres of wet and situated in the Srotriem village of Pullampalli” besides poramboke.” The poramboke here mentioned obviously means the poramboke or unassessed waste of the Srotriem village in question, and this is the construction put upon the words in similar grants in Secretary of State for India. v. Raghunatha Thathachariarr and Naraygnasawmy Naidu v. Secretary of State for India, where, however, it is held, that certain lands, including lands used for communal purposes, etc., do not pass under such a grant. The Inam Register, Exhibit J, which was before the survey, no doubt under-estimates the area of the poramboke in the village; but there is no ground for interpreting the grant as not conferring the whole poramboke of the village. The appeal must be allowed and the suit decreed for the plaintiff) with costs throughout.

Coutts Trotter, J. — I am of the same opinion. The Act which we have to construe is an expropriating Act and to a certain extent ousts the jurisdiction of the ordinary Courts of law in favour of tribunals consisting wholly, or in part, of Executive Officers. Certain machinery is provided by the Act for the purpose of giving notice to persons who may be injuriously affected by the Act and enabling them to prosecute their claims before the tribunal set up by the Act. It is conceded that in one respect the procedure outlined by the Act has not been followed in this case, inasmuch as no notice has in fact been served upon the appellant as a known, or reputed, owner of lands affected, in accordance with the concluding paragraph of Sect. 6 of the Act. It also appears that there was some evidence to show that the appellant, in fact, knew that it was proposed to include his lands in the new forest area, notwithstanding the absence of a notice directed to him personally. In these circumstances it was urged on behalf of the respondent that the broad policy of the Act must be looked at; and that all that was essential to give jurisdiction under it was that the appellant quoquo modo should have knowledge in fact of the proposal to include his lands (In support of this contention reliance was placed on the language of Sect. 6 and of Sect. 16. No doubt Sect. 6 fixes no limit of time within which the personal notice to owners must be given; and Sect. 16 fixes the date for notification of the reservation of the proposed forest only by reference to the time limited by the proclamation prescribed by the first part of Sect. 6. From that it is argued that the second part of Sect. 6 is only directory, and that neglect to carry out its directions is a mere irregularity, which can be cured by proving that notice in fact reached the appellant. The appellant contends on the contrary that the sending of the notice prescribed by the second part of Sect. 6 is as much a condition precedent to the exercise of the jurisdiction conferred by the statute as the issuing of the proclamation enjoined by the first. Looking at the language employed in the two parts of section, its terms are as mandatory in the one as in the other; “the Forest Settlement Officer shall publish a proclamation” is followed by “the Forest Settlement Officer shall also serve a notice.” Where such language is used. I think its proper construction has been determined in a series of cases in the House of Lords and Privy Council, of which I need only refer to Herron v. Rathmines and Rathgar Improvement Commissioners. The result of those cases, in my opinion, is that every such statutory mandate in an expropriating statute must be Strictly observed and that its observance is a condition precedent to the whole jurisdiction conferred. I, therefore, hold that the appellant never became amenable to the special jurisdiction of the Madras Forest Act, and that the present suit lies, if he can prove his title as Inamdar to the property sought to be afforested. That is a question of fact upon which, in my opinion, the evidence is conclusive in his favour.

Appeal allowed.