1. The question that falls to be determined in this second appeal is whether the Provincial Government have complied with the provisions of Clause (b) of Section 80, Forest Act. This section declares that the Provincial Government may, by notification in the Official Gazette, declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the Provincial Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed.
2. It appears that on 8th February 1942 the Provincial Government issued a notification under Section 38, Forest Act declaring-that Clause (b) and (c) of Section 30 and Sections 32, 33 and 34 of the said Act shall apply to the plot of land in suit for a period of ten years with effect from the date of the notification. On 8th February 1942 notifications were issued under Sections 30 and 32 of the said Act concerning the rules which were applicable to the land in question.
3. Two years later, i.e. on 13th March 1944 the plaintiffs who are non-proprietors in the village, brought the present suit for a declaration that they have a right of grazing cattle, cutting grass and wood for daily use from the area in dispute and for a permanent injunction restraining the Provincial Government from exercising the rights contemplated in the notification. The trial Court came to the conclusion that the civil Courts had no jurisdiction to entertain a suit of that kind and this decision was affirmed by the Senior Sub-Judge in appeal. The plaintiffs who had brought the suit in a representative capacity have appealed to this Court and the question for this Court is whether the Courts below have come to a correct determination in point of law.
4. It was specifically alleged in the plaint that the plaintiffs had rights of grazing in the land which was the subject-matter of the notification, but that the Provincial Government had not chosen to comply with the provisions of Clause (b) of Section 30 inasmuch as they had omitted to reserve a sufficient area for enabling the plaintiffs to exercise their rights. Section 30 imposes a statutory obligation on Government to secure that the rights exercised by individuals in any plot of land are adequately safeguarded by the setting aside of a sufficient area in a reasonably convenient locality. It was vaguely argued that it was not within the competence of a civil Court to go into this matter but the learned Advocate General eventually agreed that if there is any dispute between the Crown and the subject as to whether the provisions of this clause have or have not been complied with, the decision must eventually be made by Courts of law.
5. As pointed out in an earlier part of the judgment, this suit was dismissed on the short ground that it could not be entertained by civil Courts. I am clearly of the opinion that it is within the competence of a civil Court to go into the question as to whether the provisions of Clause (b) of Section SO have or have not been complied with.
6. For these reasons I would accept the appeal, set aside the orders of the Courts below and remand the case to the trial Court for decision of the question as to whether the provisions of Section 80(b) have or have not been complied with.
7. The parties will doubtless be afforded a reasonable opportunity of producing such evidence as they wish to produce on the matter in controversy.
8. The parties have been directed to appear before the trial Court on 4th October 1918.