1. Petitioner was convicted of illicit grazing of cattle in an unreserved forest in the Kangundi zemindari. In 1912, on the zemindar's application under Section 32 of the Madras Forest Act, Section 23 of the same was extended to the said zemindari and rules were made by Government under the latter section to regulate grazing, felling of timber, collection of forest produce, etc., vide Exhibit A. It is not disputed that petitioner grazed his goats without permit contrary to the above rules, Nos. 5 and 8: but it has throughout the proceedings been contended that he did, so in the exercise of a mamul right of free grazing, to which both Section 26 and all rules thereunder are subject.
2. The case in fact turns solely on the existence or non-existence of this right: and the Joint Magistrate's judgment appears to me to be defective in that it contains no discussion, nor indicates any appreciation of the evidence on the point. He merely remarks that the 'host of defence witnesses have not succeeded in establishing the mamul right of free gracing or adduced any evidence of value to appellant:' but that is all, and it is not the way in which a contention of wide general importance should be treated. From the concluding sentence of paragraph 3 of the judgment it would even seem that the Magistrate has taken an erroneous view of what the accused had to prove. He says, it is not clear that such a right ever existed, but it is apparent that no such right exists now.'
3. I can only interpret this as meaning that it is useless to prove the existence of such right before the application of Section 26 of the Act in 1912, unless its continued subsequent existence is also proved.
4. Now it is made perfectly clear, both by Section 26 itself and by the rules contained in Exhibit A, that if the right of free grazing was vested in the villagers prior to 1912, as contended by the defence, that right remained unaffected by the Government Notifications, and it is not suggested how it was otherwise terminated.
5. The existence of the right of free grazing prior to 1912 is, therefore, the crux of the whole case: and the appeal must be remanded that it may receive adequate consideration. On this ground, I would set aside the order of the Joint Magistrate and remand the appeal for disposal according to law. At the same time in view of the importance of the case, I would transfer it for disposal to the file of the District Magistrate of North Arcot.
6. Another argument was put forward on petitioner's behalf, Which I am unable to accept. It was contended that the conviction must in any case be set aside because the 2nd paragraph of Section 26 of the Forest Act, empowering the Governor-in-Council to prescribe penalties for infringement of the rules made by him, was itself ultra vires and illegal: and hence the penal rule in Exhibit A (No. 11) has no effect. The sole authority quoted in support of this somewhat startling proposition is that of the majority of the Full Bench in Empress v. Burah and Book Singh 3 C.A 63. This decision was reversed on appeal by their Lordships of the Privy Council, to whose judgment reported as Empress v. Burah 3 C. L. R. 197: 2 Shome L. R. 63 we must look for an authoritative exposition of the law as to the validity of conditional legislation. I can find nothing in this judgment helpful to the petitioner. The learned Vakil for petitioner admits that it would be legal for the Legislature to itself prescribe unconditionally the penalty for breach of rules to be made by the Governor-in-Council at his discretion. I fail to see why it is less competent to the Legislature to leave the application of the penal rules also to the discretion of the same authority. As their Lordships of the Privy Council say (page 182): 'Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. It certainly used no words to exclude it.' I must, therefore, hold that the second clause of Section 26, and the rules framed thereunder, are perfectly legal and valid: and this contention of petitioner should, in my opinion, be rejected.
7. This case is precisely similar to Criminal Revision Case No. 9 of 1917, and although the Joint Magistrate has written a separate judgment, this indicates no more proper or adequate consideration of the evidence as to the mamul right of free grazing claimed by petitioner than does the judgment in the last mentioned case.
8. I would, therefore, set aside the. Joint Magistrate's Order, dismissing the appeal and remand the latter, for disposal transferring it to the District Magistrate.
Sadasiva Aiyar. J.
9. The preliminary question in these cases is whether the provision enacted almost at the end of Section 26 of the Madras Forest; Act (V of 1882), which empowers the Governor-in-Council not only to make rules classified as (a) to (h) in the former part, of the section but also, to prescribe, by such rules, as penalties for the infringement there of, imprisonment for a term which may extend to one month, or fine which may extend to Rs. 200 or both', is within, the competency of the Indian Legislature or whether that provision is ultra vires.
10. The phrase 'Governor-in Council' in Section 2 admittedly means Governor and the Executive Members of his Council; (see paragraphs 4 and 6 of the Government of India Act as to the distinction between the Governor-General, and his Executive Council, on the one hand and between the Governor-General and his Legislative Council on the other). The Governor and his Executive Council have accordingly made a certain rule under Sections: 26 and 32 of the Forest Act (read together), which rule (see rule 5 in Exhibit A) applies to the grazing of cattle, in an unreserved forest of the Kangundi zemindari, and a further rule (Rule 11 in Exhibit A) by which such act of grazing in contravention of Rule 5 is made punishable with imprisonment up to one: month, or a fine upto Rs. 200 or both In F. W. Biddle v. Tarraychurn Bonnerjea (1850) 2 Ind. Dec. 603: 1 Taylor & Rell 391 decided in 1850 [seepages 513 of the Indian Decisions (old series), Vol. II, reprinted by the Law Printing: House, Madras] it is said: 'A delegation to commissioners of...framing rules,...to compel discovery by, modes not defined, and subject to penalties of their., imposition, appears prima favie to be an excess of Legislature, as a delegation of what is virtually legislative power: and the provision that, such rules should be approved after they are framed, by the Governor of Bengal, and the Governor-General in Council, if understood of-them acting in executive character, would not remove the illegality,' In Empress v. Burah and Book Singh (1) the questions for disposal were, (1): whether the Governor General in Council had power to delegate his legislative functions to the Lieutenant Governor of Bengal (an Executive Officer), and (2) whether the provision, in Section 9 of Act XXII of 1869, called the Garo Hills Act, empowering the Lieutenant-Governor to extend all; or any of the provisions, of, the Act to the Cossyah and Jynteeah Hills, was a delegation of legislative functions, to the Lieutenant-Governor of Bengal. Seven Judges considered the question and four of them held that the Governor-General had no power to delegate his legislative functions to the Lieutenant-Governor of Bengal three held that he had such power, Markby; J., who wrote the leading judgment of the majority, says at page 91: 'But when a Legislative Council was constituted in India distinct from the Executive Council with power, to make laws at mee ings held for the purpose, I think it was clearly intended to restrict the Legislative Council to the exercise of functions which are properly legislative, that is, to the making of laws, which (to use Blackstone's expression) are rules of action prescribed by a superior to an, inferior, or of laws made in furtherance of these rules.... The Indian Legislative Council cannot, in my opinion, do all that Parliament can do, even where there is no express prohibition. The powers concentrated in Parliament are in India divided between the Executive and the Legislative Councils.... The Legislative Council has the power of making laws only.... There is no legal impediment to Parliament taking upon itself executive functions, and the executive authorities are all responsible to Parliament for the way in which they exercise their executive powers. Indeed, to some extent, Parliament does exercise purely executive functions, as, for example, when it fixes the amount of the naval and military forces, or appropriates the public revenues. The difference in India is this. That the Executive Council and the Legislative Council are two co-ordinate and independent bodies, each having its own sepa, frate functions with which the other cannot legally interfere. For these reasons, I think that the Legislative Council, when it merely grants permission to another person to legislate, does not make a law within the meaning of the Act from which it derives its authority.' Then at page 95 he says: These Acts of Parliament nowhere confer airy express power upon the Indian Legislature to change the machinery of legislature, in India.... The existence of the Legislative Council secures publicity and deliberation in regard to the legislative action of Government.' Then at page 96: The laws must now be made publicly and with deliberation. I do not think this provision either worthless or unimportant, and its worth and importance is greatly increased by the fact that it is the only protection which exists in this country against hasty or arbitrary legislation.... I think this protection was provided by Parliament for the people of India, and that it is only under the express authority of Parliament itself that they can be deprived of it.' 'The delegation of a power to abolish all the existing Courts of Justice in a large district, and to substitute such new ones as the delegatus may deem advisable', was (in the opinion of Markby, J., at page 104) a delegation of an authority by a Legislative Council to an Executive Officer and was ultra vires of the Indian Legislature. Then the learned Judge says: there may be a difficulty in some oases in saying whether the Act amounts to a transfer of legislative power. There would be precisely the same difficulty in drawing an exact line between the functions of the Legislative and the functions of the Executive Council---between the powers which Judges possess to make rules of procedure, and the power they do not possess to make rules of substantive law. But this does not prove that these distinctions do not exist or that they are not to be observed.... I say with confidence that this Court (the only one of which I have a right to speak) has always shown the greatest care and Circumspection in questioning the validity of Acts passed by the Indian Legislature.' The majority of the learned Judges, having held that the Governor-General in Council could not delegate their functions of legislation by any farm of enactment to the Lieutenant Governor of Bengal, further held that the provisions of Section 9 of the Garo Hills Act empowering the Lieutenant-Governor from time to time, by notification in the Calcutta Gazette, to extend all or any of the provisions contained in the other sections of the Act to other specified territorial areas was a delegation of legislative powers to the Lieutenant-Governor of Bengal and, therefore, ultra vires. This case in Empress v. Burah and Book Singh (1) went up to the Privy Council and the judgment of their Lordships of the Privy Council is reported as Empress v. Burah (2) Their Lordships do not, as I understand dispute the soundness of the general rule laid down by the majority of the Calcutta Judges that the Indian Legislature cannot delegate the functions of legislation to an executive authority by any enactment. At page 180 their Lordships say: The Indian Legislature has powers expressly limited by the Act of the; Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers.' At page 181 they say; 'Their Lordships agree that the Governor-General in Council could not, by any form of enactment, create in India and arm with general legislative authority, a new legislative power, not created or authorized by the Councils Act.' But their Lordships, proceed to point put that when the Governor-General and his Legislative Council have first 'determined, in the due and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices to be appointed by, and responsible to, the Lieutenant-Governor of Bengal leaving it to the Lieutenant-Governor to say at what time that change shall take place and also enabling him not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time to time might be, in force, by proper legislative authority, in the other territories subject to his Government,'' the Legislature is not acting ultra vires.... 'The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.... Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence,' is not ultra vires of the Indian Legislature, and when the conditions are fulfilled, the legislation becomes absolute.' Their Lordships held that, by Section 9 of the Garo Hills Act, the Legislature had legislated conditionally in regard to the areas to be brought under the Act other than the Garo Hills and that Section 9 giving discretion to the Lieutenant-Governor to exercise it as to the particular areas to be so brought from tim9 to time within it was not ultra vires.
11. In the present case, the question for consideration is. whether the discretion given by Section 26 of the Forest Act to the Governor-in-Council to make rules 'to prescribe as penalties for the infringement of' other rules (also to be made by the Governor's Executive Council) imprisonment or fine, is merely a discretion as to the time and the manner of carrying into effect the provisions which, the Legislature had already determined, shall take effect in certain areas, or whether the discretion granted was a discretion, firstly, to legislate for those areas and, secondly, to determine the times and the portions of the areas when and where that legislation shall take effect.
12. I must admit that I was very much impressed at the hearing by the able argument advanced by Mr. C. Padmanabha Aiyangar for the petitioners in these cases. He argued that the language of the last sentence in Section 26 of the Act gives the discretion to the Executive Council to embark on new legislation. Section 21 of the same Act enacts that a person who does any act prohibited by Section 21 shall be punished with imprisonment which may extend to six months or a fine which may extend to Rs. 500. On the other hand, Section 26 now in question leaves it to the discretion of the Governor in Council: 'to make rules prescribing penalties' of imprisonment or fine or both upto a certain extent. I think it cannot be denied that the language of the last clause of Section 26 is ambiguous and that the Legislature would have done vell if it had indicated clearly that the Legislature itself prescribed conditionally the penalties of imprisonment or fine or both for the infringement of the rules which may be prescribed by the Governor-in-Council for certain Acts. Can a discretion to 'make rules to prescribe penalties' be treated as merely a discretion to settle the time and place for the coming into operation of penalties already prescribed conditionally by the Legislature? I think it, is a fair argument that the Legislature has left to the Executive Council the power to create new offences out of particular acts done in particular areas, and not that the Legislature conditionally created the new offences for defined areas and merely left it to the discretion of the Executive Council to notify at what times and is what particular areas the provisions creating such offences shall come into operation.
13. In the Privy Council case in Empress v. Burah (2) the particular areas to which (or to the portions of which) the Lieutenant-Governor was given the power to extend the provisions already framed by the Legislature were made definite, whereas in the Madras Forest Act (Section 32) the land to which the Government may apply the provisions of the Act is 'any land' to which the owner thereof might thereafter wish the Act to be extended by Government To vest the Government with the discretion to prescribe or not to prescribe penalties for acts done in indefinite tracts seems perilously near to the giving of a discretion to the Executive Government to treat an act as an offence or not an offence, and so to give it a power of independent legislation. There is, however, the principle enunciated by Markby, J., that 'the greatest care and circumspection should be shown in questioning the validity of Acts passed by the Indian Legislature.' It is, also, not uncommon to find very loose and slipshod language used in Indian Acts. Again, their Lordships of the Privy Council [see Empress v. Burah (2)] seem to deprecate the restriction of the powers of the Indian Legislature, unless those powers are expressly conditioned or restricted ('in which category would, of course, be included any Act of the Imperial Parliament at variance with it.') I have, therefore, though not without much hesitation, found it possible to hold that, by the last sentence of Section 26, the Legislature really meant to itself conditionally prescribe the penalty for the breach of the rules made by the Government as regards matters mentioned in Section 26, Clauses (a) to (h), subject to the Governor-in-Council embodying in any rule or rules the same penalties for acts done in a particular area which acts and which areas were also in the contemplation of the Legislature. I might in conclusion state that I am glad that I have not had the misfortune to differ on this point from the conclusions of my learned brother, a? I was first Very much afraid that I might be obliged to so differ.
14. In the result, I agree with the orders proposed by my learned brother.