1. The petitioners, 3 in number, have been found guilty of removing a cairn erected by officers of the Forest Department in the Cuddapah District as marking the southern boundary of the Salivendula Gatimanikona reserve, and sentenced under Section 50 (d) of the Forest Act, Madras, as follows:--First petitioner to pay a fine of Rs. 40, or, in default, to be rigorously imprisoned for six weeks, and the other two petitioners to pay each a fine of Rs. 20, or, in default, to be rigorously imprisoned for one month.
2. It is urged on their behalf (1) that the Forest Act is not applicable to the place where the cairn was erected, and (2) that the lower Courts were wrong in declining to consider what are the limits of the Maharajapuram agraharam.
3. Section 3 of the Act gives the Governor in Council power to constitute, as a reserved forest, 'any land at the disposal of Government.'
4. 'Land at the disposal of Government' is defined in Section 2 as including 'all unoccupied land, whether assessed or unassessed, but does not include land, the property of landholders, as defined by Section 1 of Act VIII of 1865, Madras,' among whom shrotriemdars are expressly mentioned.
5. Section 4 is as follows:--'Whenever it is proposed to constitute any land as reserved forest, the Governor in Council shall publish a notification in the Fort St. George Gazette and in the official gazette of the district.
(a) Specifying, as nearly as possible, the situation and limits of such land;
(b) Declaring that it is proposed to constitute such land a reserved forest;
(c) Appointing an officer (hereinafter called the Forest Settlement Officer) to inquire 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 this chapter.
6. The next thing to be done is contained in Section 6, which is as follows:
7. 'When a notification has been issued under Section 4, the Forest Settlement Officer shall publish in the official gazette of the district and at the headquarters of each taluk in which any portion of the land included in such notification is situate, and in every town and village in the neighbourhood of such lands a proclamation.
(a) Specifying, as nearly as possible the situation and limits of the lands proposed to be included within the reserved forest.
(b) Fixing a period of not less than three months from the date of publishing such proclamation in the official gazette of the district and requiring every person claiming any right referred to in Section 4 either to present to such office, within such period, a written notice specifying, or to appear before him within such period, and to state the nature of such right, and, in either case, to produce all documents in support thereof.
8. The section further directs that the Forest Settlement Officer 'shall also serve a 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 on his recognized agent or manager.'
9. Section 8 next directs that the Forest Settlement Officer 'shall take down in writing all statements made under Section 6 and shall inquire into all claims made under that section' and Section 9 gives to the Forest Settlement Officer power, 'for the purpose of such inquiry' to enter, by himself or any officer authorized by him for the purpose, upon any land 'and to survey, demarcate and make a map of the same.'
10. The only other section of the Act that need be noticed for the purposes of this case is that under which the petitioners have been convicted, i.e., Section 50, which provides for the punishment of any one who, with intent to cause damage or injury to the public or to any person, or to cause wrongful gain as defined in the Indian Penal Code (inter alia) 'alters, moves, destroys or defaces any boundary mark of any forest, or any land to which the provisions of this Act apply.'
11. The contention on behalf of the petitioners is that the place where the cairn in question was erected was not 'land to which the provisions of the Act applied,' in that it is not included within the boundaries specified in the notification published under Sections 4 and 6; and it is further objected that the shrotriemdar of Maharajapuram, whose servants the petitioners are, was not served with any notice as required by the latter part of Section 6.
12. The Deputy Magistrate, who was required to take evidence and submit his findings on these two points, now reports (1) that he 'cannot find that the required notice under Section 6 of the Madras Forest Act was served upon the shortriemdar,' and (2) that he has 'not been able to obtain satisfactory evidence' on the other point.
13. The only evidence forthcoming on this 'other point,' i.e., the question of boundary is given by Mr. Higgins who was the Forest Settlement Officer by whom the boundary in question is alleged to have been fixed. He states that the western and southern boundaries of the Gattimanikona reserve, as notified under Section 4 of the Forest Act, were not adhered to in the demarcation that he ordered, and explains that, finding it would be more convenient for all parties, he made an alteration of the western boundary, which 'involved the cutting off of a corresponding portion of the southern boundary.' However, all that he did with regard to the southern boundary was to fix the western point from which it should commence. He says 'the question of what the actual boundary of Maharajapuram might be was left to be threshed out when the southern boundary of the Gattimanikona reserve, which was not dealt with in my instructions, came to be cut,' and adds--'It will be noticed that, in my instructions, I stated that no work is required on the southern boundary or eastern boundary at present, showing, I think that no question had then arisen as to what was the authorized boundary of Maharajapuram.' He does not remember any dispute having arisen about the matter before he left the district and concludes as follows:--'Whatever I did or said on the 14th May 1887, or said afterwards in my instructions, cannot, I think, be construed into an authoritative determination of the location of the Maharajapuram boundary.'
14. It is thus seen that there was no decision as to the southern boundary by Mr. Higgins; and there is no evidence of any subsequent determination of that boundary by any authorized officer. Further, it is clear that the cairn in question was erected at a point south of the river which (as appears from the arbitrator's award, confirmed by the Deputy Director of Revenue Settlement in March 1874) is the northern boundary of the Maharjapuram shrotriem village, and, consequently, the southern boundary of the proposed forest reserved as notified under Section 4 of the Act.
15. It is contended by the Government Pleader that even then the petitioners have been rightly convicted under Section 50 of the Forest Act, because Section 9 gives the Forest Settlement Officer power 'to enter, by himself or any officer authorized by him for the purpose, upon any land and to survey, demarcate and make a map of the same.' But as appears from the first words of Section 9, which are 'for the purpose of such inquiry,' the power conferred under that section is not unlimited. It is limited to the purpose of the inquiry directed by Section 8, i.e., as to 'claims made under Section 6,' namely, claims to 'any right referred to in Section 4'; and the rights 'referred to in Section 4 'are rights claimed or alleged to exist on or over any land comprised within the limits specified in the notification published under that section. The site in question being found to be beyond those limits, Section 9 is inapplicable even if the demarcation in question was being made for the purpose of any future inquiry, instead of, as appears to have been the case, for the purpose of being a permanent mark of a finally decided boundary.
16. Section 50 makes punishable the destruction of a boundary mark only in case of its being done 'with intent to cause damage or injury to the public or to any person; or to cause wrongful gain as defined in the Indian Penal Code.' The section is therefore inapplicable to a case in which any of the acts therein specified is done in good faith in the exercise of a valid right, which appears to have been the case in the present instance. Further, the acts punishable under clause (d) of Section 50, the clause under which the petitioners have been convicted, is expressly limited to boundary marks of any forest lands 'to which any provisions of this Act apply.' In the definition of 'land at the disposal of Government' in Section 2, shrotriemdars are expressly mentioned as landlords whose land is excluded from the definition. Consequently, the land on which the cairn was erected being shrotriem land, was not land to which the provisions of the Act could apply, it being only lands at the disposal of Government that can be constituted reserved forests under Section 3 of the Act.
17. The conviction of the petitioners is therefore bad. It must be set aside, and the fines levied ordered to be refunded.