The State of Madras vs M. Muthuswami Goundar and others

Natesan, J.—The State of Madras, represented by the Collector of Salem, who was the defendant in the suit and has lost in both the Courts

below, is the appellant here. The plaintiffs instituted the suit in a representative capacity, as the representatives of the pattadars of Erumapalayam

and Odayapatti villages, for a declaration of the mamul right of the pattadars to graze their cattle including goats and take manure leaves in and

from a defined area in the Jarugumalai reserved forest, and for necessary and consequential reliefs. The cause of action for the suit is stated to be

the order of the District Forest Officer, ROC. No. 4264/55 dated 16th July 1955, confirmed by the District Collector, requiring the villagers to

take out free permits from the District Forest Officer, after producing the certificates from the Revenue Inspector or the Village Munsif showing the

survey number and extent of the land and the number and description of the cattle owned by each of the applicants. The order also prohibits the

grazing of goats.

The Government does not deny the right of free pasture, but only permits are insisted upon, and the Government also contends that it is entiled

to prohibit the grazing of goats in the areas in question.

The contention on behalf of the pattadars is that, when proceedings for reservation of the forest were taken about 1918, there was an enquiry in

the matter by the Forest Settlement Officer, that there was an appeal by the pattadars under S. 14, of the Madras Forest Act that on appeal an

order was passed in their favour recognising the rights of the pattadars to graze their cattle within a defined area and also to cut and remove shrubs

of nona, kolinji, kattukottai etc, in that area free of any charge, and that the rights have become final by a notification under S. 14 of the Act and

that, ever since, they have been exercising the rights thus recognised without interference by the Government and without any insistence of permits

or prohibition of grazing of goats.

The appellant took its stand on the rules framed under the Madras Forest Act, where-under grazing can be allowed in a reserved forest only on

permits issued by the Forest Department, and the issue of permits for goats was prohibited. The plaintiffs let in evidence to show that for decades

they have been grazing their cattle inclusive of goats in the areas in question without taking permits, after the proceedings recording their rights in

1918. It is seen from the evidence that the pattadars own, in addition to their cattle, a sizable number of goats. The first plaintiff, besides other

cattle, owns 33 goats. The sixth plaintiff who owns 11 acres of land besides other cattle has 40 goats. The seventh plaintiff, examined as P.W. 3,

speaks to grazing cattle including goats in the reserved forest area for over 30 years. The fifth plaintiff, examined as P.W. 5, has stated that he

owns cattle including 50 goats. Several other pattadars have deposed their owning goats and grazing them in the areas in question. On the

evidence, the Courts below have come to the conclusion that after the order of the Collector in 1918, recognising then rights of the pattadars, no

permits were obtained by the petitioners and that from 1916 till 1954, the plaintiffs and other pattadars of the two villages have been exercising

their rights without getting any permits, even though permits may be called free permits.

On behalf of the plaintiff, it is contended that the pattadars are a fluctuating body that the cattle owned would also be fluctuating and that there

will be considerable difficulty in their taking individual permits. It is argued of their behalf that the recognition of the right of free grazing at the time

of reservation of the forest was of the village community, the body of pattadars in the Villages owning cattle, in recognition of their mamool rights of

grazing.

It is contended on behalf of the Government that the permit system came into existence in 1926 and that the area in Jarugumalai forest was

constituted into a reserved forest only in 1926. Thought such a contention has been put forward, the Government has not chosen to file the

notification under S. 16 of the Forest Act, which must be available with it. There was no plea in the written statement that the reservation was only

in 1926, and the contention, in the absence of plea and any evidence, has been rejected by both the Courts below. Based on the order, Ex-1, on

the appeal by the pattadars under S. 14 of the Madras Forest Act, at the time of the reservation of the forest in 1918 the Courts below have

upheld the contention of the plaintiffs and decreed the suit prayed for.

It is urged before me by the Learned Counsel, Mr. T.N.C. Rangarajan, appearing for the Government Pleader that the recognition of rights

under S. 12 of the Madras Forest Act is, under the very provisions of S. 12, subject to the rules that may be prescribed by the Government and

under Ch.III even cattle crazing as of right or as privilege without payment must be governed by permits, for which no charge was made and that

no permits can be issued for goats. Mr. T.M. Chinnayya Pillai, Learned Counsel for the pattadars contends that, by the rules, the Government

cannot take away the rights which have been recognised after due enquiry, and the rule-making power conferred on the Government was only to

carry out the provisions of the Act. It is contended that the right of free grazing of cattle including goats had been recognised alter due enquiry, and

by way of rules the rights cannot be taken away and fresh restrictions imposed by insisting on permits.

Chapter II of the Madras Forest Act, 1982, provides for the constitution of any land at the disposal of the Government, a reserved forest. S.

4(c) requires before constituting any land as reserved forest, the appointment of an officer to enquire into and determine the existence, nature and

extent of any rights claimed by, or alleged to exist in favour of any person in or over any land comprised within such limits, or to any forest produce

of such land and to deal with the same as provided in the chapter. S. 6 provides for the making of claims, and S. 8 provides for enquiry by the

Forest Settlement Officer. In respect of claims of right to pasture and of right to forest produce, S. 11 provides that the Forest Settlement Officer

shall pass an order specifying the particulars of such claim, as far as may be necessary to define the nature, incidents and extent of the rights

claimed, and admitting or rejecting such claim wholly or in part. It provides that where the right is a right to forest produce, he shall also record

whether the forest produce obtained by the exercise of such right may be sold or bartered. S. 12 reads as follows :-

When the Forest Settlement Officer has admitted wholly or in part, and recorded under S. 11, a claim to a right of pasture or to forest-produce, he

shall, as far as possible, provide for the exercise of such right...

(a) by altering the limits of the proposed reserved forest so as to exclude land of sufficient extent, of a suitable kind, and in a locality reasonably

convenient for the purposes of the claimant;

(b) by recording an order continuing to the claimant a right of pasture or to forest-produce (as the case may be), subject to such rules or may be

prescribed by the Provincial Government.

The order passed under Cl. (b) shall record, as far as practicable, the number and description of the cattle which the claimant is from time to time

entitled to graze, the local limits within which and the seasons during which such pasture is permitted; or the quantity of timber or other forest

produce, which the claimant is authorised to take or receive, the local limits within which, the season during which and the mode in which, the

taking of such produce is permitted; and such other particulars as may be required in order to define the extent of the right which is continued, and

the mode in which it may be exercised.

S. 13 of the Act is important. It provides that whenever any right of pasture or to forest-produce admitted under S. 11 is not provided for in one

of the ways prescribed in S. 12, the Forest Settlement Officer shall, subject to such rules as the Government may prescribe in this behalf, commute

such right by paying a sum of money in lieu thereof, or, with the consent of the claimant, by the grant of rights in or over land or in such other

manner as such officer thinks fit. There is provision for appeal under S. 14 of the Act, from the order passed by the Forest Settlement Officer, Ss.

11, 12 and 13 of the Forest Act. S. 16 provides for the final notification alter the disposal of the appeal. S. 63 provides that the Provincial

Government may make rules consistent with the Act, amongst other purposes with which we are not now concerned, generally, to carry out the

provisions of the Act.

The rules on which the Government now relies come under the heading ""Rules and conditions regarding the issue of grazing permits"". The

material portions are extracted:

I. Grazing shall be allowed in reserved forests only on permits issued by the Forest Department. These permits, however, do not cover grazing in

areas which are specially closed to grazing. Permits hold good only for reserves under the control of the Forest Department and not for reserves

under Panchayat management.

II. ......

III. Except in the case of right or privilege holders permits shall be issued on payment of such fees as may be prescribed by Government from time

to time. No permits shall be issued for goats. Cattle grazing as of right or as a privilege without payment must be covered by permits for which no

charge will be made...

The rules also give the form of the permit. It contains columns as to the person to whom it is issued, the place of residence, name of the range,

number and description of animals, fees paid, and also a column for remarks. Certain conditions are prescribed regulatory of the grazing. There is a

note added that breach of any of the conditions subject to which the permit issued will ipso facto make void the permit, though the District Forest

Officer may remit this penalty and allow the permit to continue valid, if he sees it.

It may be seen from Ex. A. 10, a certified copy of a report referring to the enquiry into the claims put forward by the pattadars that

representations have been made before the enquiring officer and that even in 1877 the rights of the mitta ryots to graze their cattle and to cut leaves

from the area had been recognised by the Sessions Court, Salem. The report also shows that one of the persons examined asserted the right of

grazing even of goats from the time of his forefathers. Ex. A.1 is the order passed on the appeal preferred by the pattadars under S. 14 of the

Madras Forest Act from the order of the Forest Settlement Officer. The material portion of the order is set out hereunder:

It should be held therefore that the right actually exercised by the rayats was a limited one. On a consideration of this fact and on the fact that such

a limited right can be admitted without detriment to the purpose for which these hills were reserved, I decide to admit such a limited right to the

persons shown in the schedule below.

The extent of his right will, as required by Ss. 11 and 12 of the Act, be defined as follows : The appellants having by their Pleader agreed to

accept under Panchayats'' management certain areas defined and demarcated by the District Forest Officer and to relinquish all claim to any right in

other areas. The right to free grazing in the areas allotted to the appellants respectively is admitted.

With regard to the claim for free removal of leaf manure the right to remove leaves of shrubs named in the Panchayat lease (and of these only)

will be admitted so far as the areas are concerned for which Panchayat is granted.

For the villages of Odayapatti and Erumapalayam, the appellants shall be taken to represent the villages as a whole.

In all other points the decision of the Settlement Officer is confirmed and the appeals rejected......

Schedule: 1. All rights claimed but not presented on appeal are extinguished. (2) Appeals V and VIII preferred by the Malayali villagers are

unsupported by evidence. They have been duly provided for, the appeals are rejected. (3) Appeals 1 and 3 to 7,. The appellants so far as they are

landholders of the villages of Erumapalayam and Odayapatti are conceded on their Own behalf and on behalf of other pattadars of the village, (a)

The right to graze cattle in the area defined by the panchayat lease; (b) the right to cut and remove shrubs known as nona, kolinjai, kattukottai,

unanthalai, vilari Thavari, Ponnavarni within that area. (d) No appeal was preferred from Ammapete the claim therefore is extinguished....

This order defining the rights of the pattadars does not limit the grazing rights to cattle other than goats. In this connection, a reference has to be

made to the definition of ""cattle"" udder the Madras Forest Act. S. 2, defines cattle thus:

''Cattle'' includes elephants, camels, buffaloes, horses, mares, ponies, colts, fillies, mules, asses, pigs, rams, ewes, sheep, lambs, goats and kids.

It is not contended that the rules were made subsequent to the order Ex. A.1. The rules have been there already according to Government

Pleader but in my opinion it is immaterial when the rules were made. At the enquiry, representation was made on behalf of the pattadars that they

have been grazing their cattle inclusive of goats. It is not as if there was no grazing of goats prior to the enquiry in question. While recognising the

claim for free grazing put forward by the pattadars, goats have not been excluded. The question for consideration is whether, by reason of Rule III,

the right of grazing goats has been taken away, even though the claim to graze cattle inclusive of goats was pressed at the enquiry and the grazing

rights as claimed was admitted.

S. 12, already set out enables the Forest Settlement Officer to provide for the exercise of the rights admitted wholly or in part under S. 11 of

the Act. Clause (a) provides for altering the limits of the proposed reserved forest so as to exclude land of sufficient extent, of a suitable kind, and

in a locality reasonably convenient for the purposes of the claimant. Clause (b) provides for continuing to the claimant a right to pasture or to

forest-produce, subject to such rules as may be prescribed by the Provincial Government. That cannot mean that the right which has been

recognised or admitted can be taken away by the rules. The rules can only regulate the exercise of the right and not take away a right recognised

after due enquiry and recorded. As set out already, the rule-making power of the Government is limited to making such rules as may be necessary

to carry out the provisions of the Act. The Act does not provide for the extinction of the rights, if any, which are found to exist in the claimants.

When extinction of the right to pasturing recognised under S. 11, becomes necessary, S. 13, provides for the commuting of such rights by paying a

sum of money in lieu thereof, or, with the consent of the claimant, by the grant of rights in or over land or in such other manner as such officer

thinks fit. It cannot be disputed, in the present case, that the villagers have been from time immemorial exercising the right of grazing even goats. In

the absence of any limitation, while admitting the right of grazing cattle, it must be held that there has been a recognition of the right to free grazing

of all cattle, which, apart from the evidence adduced, by the definition itself, includes the grazing of goats. If any prohibition had to be made for the

grazing of goats in the reserved area, the Government would have commuted that right of grazing in the pattadars under S. 13. It is not contended

for the Government that there were proceedings for the commutation of the right of grazing goats, as provided for under S. 13; nor has any other

land been allotted for the grazing of goats.

Reference may be made in this connection to a decision of a Division Bench of this Court in Thatha Pillai v. Emperor 45 I.C. 504 a case arising

under S. 26 of the Madras Forest Act. S. 26 comes under Chapter III of the Act dealing with the protection of land at the disposal of Government

not included in reserved forest. It provides that, subject to all rights now legally vested in individuals and communities, the Provincial Government

may, for any district or portion of a district, make rules to regulate the use of the pasturage or of the natural produce of land at the disposal of

Government and not included in a reserved forest. Such rules may, with respect to such land, provide, inter alia, for regulating or prohibiting the

cutting of grass and pasturing of cattle. The case mentioned above arose on a conviction under S. 26 and the rules and regulations framed

thereunder. The question was whether S. 26 contemplated that the Government could under that section prohibit the use of the land which is dealt

with under Ch. III of the Forest Act for pasturage. The rights dealt with under that section and the language of the section are no doubt entirely

different. But the following observation is significant:

The language of the legislature seems to us clearly to mean just the reverse. They did not intend to empower the Government to regulate the use of

the land which is dealt with under this chapter to the detriment of any rights existing in individuals and communities. This becomes still clearer when

we refer to Ss. 10 and 11 of the Act, S. 10 lays down the procedure with reference to rights claimed in land other than rights of way, pasturage,

water course or forest produce. The procedure with regard to dealing with those rights is laid down in S. 11. These sections deal with the

procedure for reserved forest. Ch. III deals with land not included in reserved forest, and it seems to us that the wording of the section is clear

enough to show that as in the case of reserved forest so also with respect to lands not included in reserved forest, the legislature did not mean to

interfere with the existing rights of the people.

The observation in the passage above set out to the effect that in a reserved forest, the legislature did not mean to interfere with the existing

rights of the people, even if it may not be necessary for the disposal of the case, is entitled to considerable weight.

The Act provides for an enquiry into claims and an admission or rejection of the claims. In respect of rights which are admitted, if they could

not be conveniently provided in the reserved forest, provision is made in S. 13 of the Act, for compensating of such rights or otherwise to

accommodate the claimants. That being the scheme of the Act, it is clear that the rules cannot take away a right which has been admitted. The

following remarks of Lord Dunedin in R. v. Minister of Health, ex parte Yaffe (1931) A.C. 494 at 503 extracted in Craies on Statute Law, 6th

Edn. page 311, though obiter, are apposite in the present context. The confirmation makes the scheme speak as if it was contained in an Act of

Parliament, but the Act, of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If,

therefore, the scheme, as made, conflicts with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be

otherwise if the scheme had been Per se embodied in a subsequent Act, for then the maxim to be applied would have been ""Posteriora derogant

prioribus"". But as it is, if one can find that the scheme is consistent with the provisions of the Act which authorises the scheme, the scheme will be

bad......

The following passage set out at page 320 from another decision may also be referred to:

It has been argued that these rules having been approved by the King in Council, have under the provisions of this statute the force of an Act of

Parliament......The words of these rules are no doubt very large, but, as they are made under the power of the Act and to provide for cases

mentioned in the Act, we must look to the Act itself in order to construe them.

Now S. 11 providing for the admission of claims requires the order passed to specify the particulars of such claims, as far as may be necessary

to define the nature, incidents and extent of the rights claimed, and admitting or rejecting such claim wholly or in part. The order admitting the claim

on appeal has been set out in extenso. There is no limitation to the free grazing in the areas allotted to the respondents. The right is admitted without

any conditions. The right admitted is of the pattadars of the villages as a body. Counsel appearing for the Government could not place before me

any authority, for the position that the requirement as to free permit Was not an infraction of the rights recognised. Learned Counsel for the

respondents also was not able to place any authority for the contrary position. However, as the permit that could be granted under the rules cannot

be in respect of goats, it follows that, in this case, no permits could be insisted upon. The pattadars own not only other cattle but goats, and each of

them owns a fairly large number of goats and have been freely grazing those goats for decades. Rule III of the rules regarding issue of grazing

permits is emphatic that no permit shall be issued for goats. If for purposes of regulating, grazing, permits could be insisted upon, as not being any

restriction on the rights recognised, the permits should provide for and include goats in this case. The pattadars may have no objection to such

permits. But as the permits now prevalent cannot include goats, it must be held that the Government had no right to require the pattadars to take

out permits.

There is one other manner of looking at this question, and evidently that might have been the reason why permits have not been insisted on all

these years, since 1918. A reference to Ex. A.1 shows that the free grazing areas allotted to the pattadars are areas under Panchayat management,

and they were required to relinquish the claims in other area. Rule I, which provides for permits being taken out for grazing in reserved forests

states that permits hold good only for Reserves under the control of the Forest Department and not for Reserves under Panchayat management.

The grazing in the present case having been provided for in areas under Panchayat management, it followed that the requirement of permit under

Rule I did not apply to the present case. No other question has been argued before me. In the result, the second appeal fails and is dismissed with

costs. No leave.