M. Balkrishna Rao vs The Secretary of State for India in Council

John Wallis, C.J.—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 190S were declared to be reserved forest by notification u/s 16 of the

Madras Forest Act and have since bean 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 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 Nos. 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 u/s 16 and held that as the plaintiff did not avail himself of his right u/s 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 the 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 u/s 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. u/s 6

he is required besides publishing notices calling for claims at the headquarters of each taluk 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 u/s 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 right 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 Meynoodeen Khan Wullud Meer Sudroodeen Khan

Bahadoor (1855) 6 M.I.A. 134 and Saunby v. London (Ont) Water Commissioners (1906) A.C. 110. 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. 498 and to Rameswar Singh v. Secretary of State for India (1907) 34 Calc. 470.

If, as I hold, the notification issued u/s 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 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 land situated in the shrotriem village of Pullampalli ""besides poramboke."" The poramboke here

mentioned obviously means the poramboke or unassessed waste of the shrotriem village in question and this is the construction put upon the words

in similar grants in Papala Narayanasawmy Naidu and Others Vs. The Secretary of State for India in Council and Others, and Papala

Narayanasawmy Naidu and Others Vs. The Secretary of State for India in Council and Others, 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 underestimates 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 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 boon

served upon the appellant as a known or reputed owner of lands affected, in accordance with the concluding paragraph of Section 6 of the Act. It

also appears that there was some evidence to show that the appellant in fact know that it was proposed to include his lands in the now 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 Section 6 and of

Section 16. No doubt Section 6 fixes no limit of time within which the personal notice to owners must be given; and Section 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 Section

Prom that it is argued that the second part of Section 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 (act reached the appellant. The appellant contends on the contrary that the sending of the notice prescribed

by the second part of Section 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 (1892) A.C. 498. The result of those cases in my opinion is that

every such statutory mandate in 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.