1. The convictions in these cases are under Section 26 of the Madras Forest Act and the rules and regulations framed thereunder. The land with reference to which this section has been applied admittedly belonged to the Devastanam and is Inam land. The Zemindar of Kadavur is the manager of the Devastanam. His estate and also the management of the Devastanam 'have been taken charge of by the Court of Wards under the Madras Court of Wards Act. Then an application was made for the use of the pasturage and of the natural produce of this land being regulated under Chapter III of the Forest Act. This chapter deals with the protection of land at the disposal of Government not included in reserved forests and says: 'subject to all rights now legally vested in individuals and communities the Governor in Council 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, regulate or prohibit the cutting of grass and pasturing of cattle, and regulate the payments to be made for such cutting or pasturage' (Clause c).
2. It is first of all argued that the land, being in the Devastanam and not part of the Zemindari of Kadavur, was not properly included within the scope of Section 26 of the Madras Forest Act. But it is found by the Appellate Magistrate, and it is not disputed here, that the land is within the limits of the Kadavur estate, though it is part of the Devasanam Inam. The notifications relate to the entire estate and the Court of Wards took up management of the land in question under those notifications. We do not think, therefore, that this objection has any force.
3. The second point, which is the more substantial, raises the question whether Section 26 contemplates that the Government can, under that section, prohibit the use of land which is dealt with under Chapter III of the Forest Act for pasturage or prevent persons claiming right to cut trees for fuel and doing similar acts from doing so. The section begins by saying that the prohibition or the regulation shall be subject to all rights now legally vested in individuals and communities. In this case it is alleged that the petitioners, who are the villagers living in the vicinity, have a right to graze their cattle and goats on the land in question and also to out trees for the purpose of fuel and to take the produce of the trees in the forest. If the claim is well founded, it could not be said that under Section 26 the Legislature empowered the Government to prohibit these persons from exercising the rights already vested in them. If that were its intention, what the Legislature would have said was that notwithstanding any rights which any person may claim as to pasturage or produce of the land, the Government can prevent and prohibit the use of the land for such purposes. 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 Sections 10 and 11 of the Act. Section 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 Section 11. These sections deal with the procedure for reserved forest. Chapter 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 respects to lands not included in reserved forest, the Legislature did not mean to interfere with the existing rights of the people. There is a decision of this Court to the same effect recorded in Rangadu, In re 42 Ind. Cas. 724; (1917) M.W.N. 682 : 22 M.L.T. 211 : 6 L.W. 428 : 18 Cri. L.J. 996
4. The petitioners' claims were put forward before the 2nd class Magistrate who originally tried these cases, but he apparently ignored the question altogether. Then on appeal the Sub-Divisional Magistrate thought that the question had been finally disposed of by the decision of the Collector in another proceeding. The present petitioners were not parties to that proceeding and the Appellate Magistrate in these circumstances ought to have dealt with the question as to the right claimed by the petitioners, before coming to a conclusion on the question whether the acts imputed to them made them liable to the penalties prescribed by the Act. On these grounds, therefore, we set aside the judgment of the Sub-Divisional Magistrate in appeals and remand the appeals to him for disposal according to law. If the parties desire to adduce fresh evidence on this question, they will be at liberty to do so before the Sub-Divisional Magistrate.