MYSORE BALAKRISHNA RAO Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF CUDDAPPAH

JUDGEMENT

(1.) 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 Section 16 of the Madras Forest Act and have since been in the possession of Government. The plaint alleges that the declaration and taking of 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 Section 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 Section 16, and held that, as the plaintiff did not avail himself of his right under Section 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 notice 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 Section 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 Section 6 he is required, besides publishing notices calling for claims at the headquarters 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 under more than five years after the issue of the proclamation under Section 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 the decisions of their Lordships in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M.I.A. 134 at p. 155 F: 19 E.R. 50 and Saunby v. London Waterworks Commissioners (1906) A.C. 110 : 75 L.J.P.C. 25 93 L.T. 648 : 22 T.L.R.37.

(2.) 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 (1892) A.C. at p. 523 : 67 L.T. 658 and to Rameshwar Singh v. Secretary of State for India 34 C. 470 : 11 C.W.N. 356 : 5 C.L.J. 669.

(3.) If as I hold, the notification issued under Section 16 is not binding on the plaintiff and his rights are not barred by Section 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 free-hold, 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 39-169 acres of dry and 287-69 acres of wet land situated in the Shothriem village of Plutampalli "besides poromboke." The poromoboke here mentioned obviously means the poromboke or unassessed v aste of the Shothriem village in question, and this is the construction put upon the words in similar grants in Secretary of State for India v. Raghunatha Thathachariar 18 Ind. Cas. 41 : 24 M.L.J. 31 : (1913) M.W.N. 261 and Papala Narayanaswami Naidu v. Pensalani Kanniappa Naidu 14 Ind. Cas. 261 : 24 M.L.J. 36 : (1912) M.W.N. 496 where, however, it is held that certain lands including lands used for communal purposes, etc., do not pass under such n grant. The inam register, Exhibit J, which was before the survey, no doubt underestimates the area of the poromboke in the village, but there is no ground for interpreting the grant as not conferring the whole poromboke of the village. The appeal must be allowed and the suit decreed for the plaintiff with costs-throughout. Courts-Trotter, J.