P. Ramakrishnan, J. - (1.) THESE writ petitions deal with connected matters and therefore they were heard together. The petitioners in these writ petitions seek for relief against the operation of the Madras Preservation of Private Forests Act, 1949 (Madras Act (XXVII of 1949), which has been extended to certain well -known jagirs on the Kalriyan Hills, known as Jadaya Goundar Jagir and Kurumba Goundar Jagir. The South Arcot District Gazetteer refers to a third similar jagir on the same hills called Ariya Goundar Jagir. But we are concerned in these writ petitions only with the first two jagirs. The present proprietor of Kurumba Goundar Jagir is the petitioner in Writ Petition No. 1896 of 1965 and the first petitioner in Writ Petition Nos. 1571 of 1964 and 4622 of 1965, and the present proprietor of Jadaya Goundar Jagir is the petitioner in Writ Petition No. 1828 of 1964. The principal contentions of the petitioners in the writ petitions can be set down briefly as under.
(2.) THE petitioners in Writ Petition No. 1828 of 1964 and 1896 of 1965, who are the proprietors of Jadaya Goundar and Kurumba Gaundar Jagirs respectively urge that from time immemorial a certain form of cultivation had been carried on in the hill tracts of the jagirs described as ponal kadu cultivation, a process which can be succinctly described as shifting cultivation. The hill folks who reside in the hills obtain their food by such cultivation. This is a customary right which they had been enjoying. After the notification of the forest areas in the jagirs as private forests under Section 1(2) of the Madras Preservation of Private Forests Act, 1949 (hereinafter called the Act), the officials in the forest department, under threat of prosecution, have been preventing the petitioners as well as the inhabitants of the hills, from carrying on ponal kadu cultivation, on the plea that such cultivation involve the clearing of shrubs and trees, that for the purpose of cutting trees, prior permission of the District Collector is required under Section 3 (2) of the Act, and that without such permission ponal kadu cultivation cannot be allowed. The petitioners in these two petitions urged that such prevention involves an interference with the customary rights of the petitioner as well as the inhabitants of the hills. The very purpose for which the Act was passed, includes the preservation of customary and prescriptive rights in private forests, besides the prevention of indiscriminate destruction of private forests. It is urged by the petitioners, that arbitrarily putting a stop to ponal kadu cultivation, has interfered seriously with the customary and prescriptive rights mentioned above, and that a writ of mandamus should issue to the respondents, namely, the District Forest Officer, South Arcot at Cuddalore and the State of Madras by the Collector of South Arcot at Cuddalore, forbearing them from interfering with ponal kadu cultivation in the limits of the jagirs above mentioned. In Writ Petition No. 1571 of 1964, the petitioner is the proprietor of the Kurumba Goundar Jagir. It is alleged by the petitioner, that one of the incomes of the jagirdars consists of the receipts for the removal of timber and forest produce, from the hills. It was usual for the jagirdars to grant licences to the residents of the hills, to cut and gather wood and minor forest produce, subject to the obligation of selling them to the jagirdar or his nominee at market price, without selling to anybody other than the jagirdar. The jagirdar leases out his right in respect of such produce to a contractor. It was the practice for the residents of the hills to gather the produce and bring them to a depot maintained by the contractor of the jagirdar, and afterwards the contractor transports the produce thus gathered, to other places. To enable the contractor to transport the produce outside the Jagir limits, it was the practice for the jagirdar to issue permits in respect of the produce. After the Act was extended to the jagirs in question, an objection was taken to the grant of permits for transport of produce by the jagirdar. The jagirdar and his contractor filed a writ petition (W.P. No. 887 of 1952) and it came before Rajagopala Iyengar, J., who directed that the Government ought not to interfere with the rights of the jagirdars to purchase and dispose of the forest produce in accordance with the customary usage and transport it in the customary manner. Thereafter, till 1959, the jagirdar was allowed to remove the said produce on permits issued by him, without any interference by the officials of the forest department. However in 1959, the forest department began to insist that for such transport, Form II permits issued under the Timber Transport Rules of the forest department should be issued. When the jagirdar approached the forest officials at Kallakurichi, for the issue of Form II permits, they gave him a great deal of trouble including delay on issue, and restricted the number of permits. On each occasion when the jagirdar wanted to obtain a permit, the Forester would insist upon an examination of the stock, and this would lead to a great deal of delay in the issue of permits in question. In the meantime the forest materials being liable to speedy decay, would have decayed, and led to considerable loss and damage. The jagirdar again filed a writ petition in this Court (Writ Petition No. 12 of 1962) which came up for hearing before Jagadisan, J. While dealing with that writ petition, the learned Judge noticed that even under the Timber Transport Rules, the owner of a private forest, can himself issue the transport permits, provided the permits are affixed with a seal by the forest department - -Officials to ensure the bona fides of the receipts subsequently produced by the contractor engaged in transporting them. An assurance was given before the learned Judge by the Additional Government Pleader, that the department would take steps to issue permits without unnecessary delay in future. Learned Counsel appearing for the petitioner also made a complaint to the Court, that he would have no objection to the transport of goods under permits so long as there was no delay or obstruction caused by the forest department. The learned Judge observed that in the above circumstances, the petitioner had failed to make out a case for the issue of a writ of mandamus. But he closed the judgment with the remark that in future, if the petitioner were to meet with any opposition or obstruction, on the part of the forest department, in the matter of removal or disposal of the forest trees, contrary to the provisions of the rules and the relevant statute, it would, of course be open to him to move the Court for appropriate relief.
(3.) THE petitioner now urges that the officers of the Forest Department instead of affixing their seal to permit books produced by the petitioner as was the practice at the time when the above judgment of Jagadisan, J., was given, now rely upon an amendment of the relevant Timber Transport Rules, and insists that the petitioner should purchase on every occasion permits issued by the officials of the forest department at 5 nP. for each permit. The petitioner urges that by this insistence, the same difficulties that prevailed at the time when the earlier writ petition came before this Court, have come into existence again and the petitioner is constrained to file this writ of mandamus for directing the respondents to forbear from interfering with his transport of forest material gathered within the limits of his jagir to places outside the jagir.;