Mysore Balakrishna 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 1905 were declared to be reserved forest by a notification u/s 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 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 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 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 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 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 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 and Saunby v.

London Waterworks Commissioners (1906) A.C. 110 : 75 L.J.P.C. 25.

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. 523 and to Rameshwar Singh v. Secretary of State

for India 11 C.W.N. 356.

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 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 : (1913) M.W.N. 261 and Papala

Narayanaswami Naidu v. Pensalani Kanniappa Naidu 14 Ind. Cas. 261 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.

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 Section 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 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 inference to the time limited by the proclamation prescribed by the first part of Section

From 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 fact 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 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.

This appeal having been posted to be spoken to this day, the Court delivered the following.

JUDGMENT.

It will not be necessary to remand the case to ascertain the amount of the mesne profits, as the parties have agreed without prejudice that they

should he awarded at Rs. 75 a year. The appellant will be entitled to recover mesne profits at this rate up to date of delivery.