Madras High Court
M.Kulanthaivelu vs The Principal Secretary To The ... on 2 March, 2012
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/03/2012
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.(MD)No.13178 of 2011
and
W.P.(MD)No.7970 of 2010
and
M.P.(MD)Nos.1/2010, 2/2011, 1 and 2/2011
M.Kulanthaivelu ... Petitioner in both W.Ps.
vs.
1.The Principal Secretary to the Government,
Department of Environment and Forest,
The Government of Tamil Nadu,
Fort St. George, Chennai.
2.The District Collector,
Theni District, Theni.
3.The District Forest Officer,
Theni District, Theni.
4.The Revenue Divisional Officer,
Uthamapalayam,
Theni District.
5.The Tahsildar,
Bodinayakkanur Taluk,
Theni District.
6.Siru Kappi Vivasayigal Mazhaival
Makkal Sangam,
Athiyoothu Village,
Bodinayakanur,
Theni District,
Rep. by its P.V.Thangarasu
[R-6 impleaded as per order of this
Court dated 01.02.2012 made in
M.P.(MD)No.3 of 2011]
... Respondents in W.P.(MD)No.13178 of 2011
1.The District Collector,
Theni District, Theni.
2.The District Forest Officer,
Theni District, Theni.
3.The Revenue Divisional Officer,
Uthamapalayam, Theni District.
4.The Tahsildar,
Bodinayakkanur Taluk,
Theni District.
5.Siru Kappi Vivasayigal Mazhaival
Makkal Sangam,
Athiyoothu Village,
Bodinayakanur,
Theni District.
[R-5 impleaded as per order of this
Court dated 29.10.2011 made in
M.P.(MD)No.1 of 2011]
... Respondents in W.P.(MD)No.7970/2010
PRAYER in W.P.(MD)No.13178 of 2011
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the impugned order in
G.O.Ms.No.160, Environment and Forest (FR-14) Dated 26.11.2009 issued by the
first respondent published in the Tamil Nadu Government Gazette on 28.04.2010
and quash the same as illegal insofar as it relates to the petitioner's lands in
Survey Nos.750/1,2,3 & 4 and Survey Nos.753/1A1, 2,1B,1C,1D,753/3,4A, 4B and
753, 1F, Bodi North Hills Village, Bodinayakkanur Taluk, Theni District and
consequentially to forbear the respondents from in anyway interfering into the
petitioners right to hold such lands.
PRAYER in W.P.(MD)No.7970/2010: Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus, forbearing
the respondents from in anyway taking possession of our patta lands of the
petitioner and his family members situated in Survey Nos.750/1,2,3 & 4 & Survey
Nos.753/1A1, 2, 1B, 1C, 1D, 753/3, 4A, 4B & 753/5 & 6 Bodi North Hills,
Bodinayakkanur Taluk, Theni District for the formation of cart track or for
laying of road without acquiring the same in the manner provided under the Land
Acquisition Act, 1984 or in any other law for time being in force.
!For Petitioner in ... Mr.M.Ajmalkhan
both W.Ps.
^For Respondents 1to5 ... Mr.T.R.Janarthanan
in W.P.(MD)No.13178/ Additional Government Pleader
2011 & Respondents
1to 4 in W.P.(MD)
No.7970/2010
For Respondent No.6 ... M/s.D.Geetha
in W.P.(MD)No.13178/
2011 & Respondent No.5
in W.P.(MD)No.7970/2010
******
:COMMON ORDER
********** These two Writ Petitions, at the instance of a co-owner of land, primarily challenges the Government Order in G.O.Ms.No.160, Environment and Forest (FR-14), dated 26 November, 2009, whereby and whereunder the Government of Tamil Nadu declared Bodi North Hills Forest Block as a reserved forest with effect on and from 29 September, 2010.
2. Since both these Writ Petitions are in respect of the very same land and the relief is primarily to restrain the Government from interfering with the petitioner's right to possess the land, the factual matrix as found in W.P.(MD)No.13178 of 2011 is taken to narrate the relevant facts.
W.P.(MD)No.13178 of 2011:
BACKGROUND FACTS:
3. The land having an extent of 70 acres in Survey Nos.750/1,2,3 & 4 and Survey Nos.753/1A1, 2,1B,1C,1D,753/3,4A, 4B and 753/5 and 6 originally belonged to the petitioner, his father Muthaiah Servai, his brothers and children of his pre-deceased brother, by name Veeranan, Palanichamy, Shanmugam, Kathiresan, Suresh, Sathiyaseelan, Ramesh, Anand and Irulappan. The land is situated on the down hills of a reserved forest which is about 2-1/2 kilometres away from their land at Bodi North Hills. The Government of Tamil Nadu in exercise of the powers conferred under Section 16 of the Tamil Nadu Forest Act, 1882, issued a notification declaring certain lands in Bodi North Hills Village as reserved forest.
4. The land in the up hills of Bodi North Village has been declared to be a reserved forest and as such, ingress and egress of the said lands are restricted. There is a foot path running through the land owned by the petitioner and the same has been in use for generations to access the forest. The permitted forest produce are carried on mules in and outside the reserved forest.
5. While the matters stood thus, the forest officials along with the revenue officials trespassed into the land on 06 June, 2010 and commenced surveying, alleging that they intend to form a road through the land. The same was objected to by the petitioner. Since there was a subsisting threat, the petitioner preferred a Writ Petition in W.P.(MD)No.7970 of 2010 to restrain the respondents from interfering with the possession of property.
6. The Tahsildar, Bodinayakkanur Taluk, Theni District filed a counter in W.P.(MD)No.7970 of 2010 indicating that notice was issued to the land owners under Section 9 of the Tamil Nadu Forest Act, 1882. Subsequently, the Special Tahsildar (Forest Settlement) passed an order in respect of the subject property acquiring the same for the purpose of laying a cart track. Therefore, the petitioner was constrained to file W.P.(MD)No.13178 of 2011 challenging the Government Order in G.O.Ms.No.160, Environment and Forest (FR-14), dated 26 November, 2009.
DEFENCE:
7. The District Forest Officer, Theni District filed a counter, wherein it was contended that there are many lands of the petitioner in Western ghats at Bodi North Hills and in continuing for reaching upper hills which is called as Valasai (Athiyuthu) Village. The pattadars in the said Valasai Village have been using the well defined pathway running through the lands of the petitioner as well as to the upper hills to the said Valasai Village. The pathway has been earmarked in forest land register and it was classified as pathway right in Serial No.18 from time immemorial. The petitioner and his family members were issued notice under Section 9 of the Forest Act by the Special Tahsildar (Forest Settlement), Bodinayakkanur. The petitioner and his family members have filed claim petitions and ultimately, the right of pathway has been ordered to be used in forest block from Bodi to Valasai (Athiyuthu) for their enjoyment. The Special Thasildar has passed a specific order on 01.02.1979, disposing of the claim made by the petitioner bearing No.830. The petitioner has suppressed the earlier proceedings.
8. During the pendency of the Writ Petition, Siru Kappi Vivasayigal Mazhaival Makkal Sangam filed an application in M.P.(MD)No.3 of 2011 praying for an order to implead them as a party to the Writ Petition. The said miscellaneous application was allowed on 01.02.2012 impleading them as sixth respondent.
9. The sixth respondent in their counter-affidavit disputed the claim made by the petitioner. According to the sixth respondent, the members of the Sangam are residing at Athiyoothur Village in the upper hills of Bodinayakanur. In order to reach Athiyuthoor Village from Bodinayakanur, the villagers have to cover a distance of 12 kms. There are no public transport from Bodinayakanur and there is only a mud path. The mud path runs upto 6 kilometres. Thereafter, a road has been formed till Bodinayakanur. The villagers have no electricity connection. Similarly, there is no ration shop, school or hospital in the village. The mud path used by the local people cut across the land owned by the petitioner and that is the only pathway used by the villagers as a mode of communication from Bodinayakanur to reach the villagers up hills viz., Valasai, Athiyoothu and Chitharu Village apart from various other other villagers. There are about 320 families and they depend upon the produces from the land namely Pepper, Mango, Lemon and many other hill products. These products are harvested and brought to Bodinayakanur Market through donkeys as mode of transportation. Many a time small farmers carry their products as head loads. Aged, sick, women and children are all made to walk the distance all through their life to reach Bodinayakanur. This made the Forest Department to take steps for formation of a new road from Bodi Valasaithurai to Athiyoothu. The Ministry of Environment and Forests permitted the Project Director, District Rural Development Agency, Theni for diversion of 1.02 ha. of forest land in Bodi North Hill for formation of new road from Bodi Valasaithurai to Athiyoothu. The Government issued an order in G.O.Ms.No.160, Environment and Forest (FR-14), dated 26 November, 2009, wherein Athiyoothu Road from Bodi to Vadakkumalai Village was declared as pathway right. According to the sixth respondent, the declaration has become final and as such, it is not open to the petitioner to challenge the declaration of the property as pathway right at this belated point of time.
SUBMISSIONS:
10. The learned counsel for the petitioner took me through the provisions of the Tamil Nadu Forest Act, 1882 in support of his contention that mandatory provisions have not been followed before passing the order of declaration. According to the learned counsel, initial notification under Section 4 of the Tamil Nadu Forest Act, 1882 should be issued by the Government indicating the proposal to constitute a particular land as a reserved forest. It should be followed by a proclamation issued by the Forest Settlement Officer. The notice under Section 6 should be issued to the occupier of land. It should be followed by enquiry by the Forest Settlement Officer. The Forest Settlement Officer was expected to decide the rights of occupier and ownership. The order passed by the Forest Settlement Officer is appealable before the Government under Section 14 of the Act. The learned counsel contended that none of the statutory requirements have been complied with by the authority concerned before issuing the impugned notification. He would further submit that the land belonging to the petitioner cannot be taken possession without payment of compensation. The Government notification impugned in the present Writ Petition is liable to be set aside on the ground of failure to comply with the statutory requirements.
11. The learned Additional Government Pleader, while supporting the impugned Government notification, contended that the land records clearly gives an indication that the property was declared as a pathway. Even according to the petitioner, the people have been using the pathway from time immemorial and as such, the petitioner is not entitled for the relief as claimed in the Writ Petitions.
12. The learned counsel for the sixth respondent in W.P.(MD)No.13178 of 2011 and fifth respondent in W.P.(MD)No.7970 of 2010 contended that the issue has become final in the year 1978. The property at all point of time remained as a pathway. The petitioner was aware of the impugned Government notification in G.O.Ms.No.160, Environment and Forest (FR-14), dated 26 November, 2009 and in fact, he has produced the said notification in the earlier Writ Petition in W.P.(MD)No.7970 of 2010. However, he has not chosen to challenge the said notification. It was only during the course of hearing, the writ petitioner has filed the subsequent Writ Petition (MD)No.13178 of 2011. Therefore, there are no bona fides in the case projected by the petitioner.
DISCUSSION:
13. The principal challenge is to the declaration of land as a reserved forest. According to the petitioner, the land absolutely belongs to his family and as such, it cannot be declared as a reserved forest without following the mandatory provisions of the Tamil Nadu Forest Act, 1882.
14. Since the petitioner maintained that no notice was issued to him or his predecessors-in-interest or other co-owners, I have directed the learned Additional Government Pleader to produce the file. The District Forest Officer, Theni District has produced the original file which contains the earlier proceedings.
15. The records reveal that Bodi North Hills Forest Block including Agamalai measuring 45,576.92 acres was notified by the Government under Section 4 of the Tamil Nadu Forest Act, 1882 in G.O.Ms.No.453, Forests and Fisheries Department, dated 30 April, 1977 and it was published in the Tamil Nadu Government Gazette on 18 May, 1977. It was followed by a declaration under Section 6 of the Act on 20 April, 1978. Notices were served on all the land owners. The father of the petitioner and other co-owners have filed claim petitions before the Special Tahsildar (Forest Settlement) claiming ownership right and right of way. The Settlement Officer found that the claimants have been using the existing Valasai path running across the proposed forest block to reach the lands under their occupation. The claims made by the land owners for using the pathway was objected to by the District Forest Officer. The objections were overruled by the Settlement Officer on the ground that the land owners have to use this land to reach the lands under their occupation.
16. The petitioner is now pleading ignorance of the proceedings initiated earlier by the Government resulting in issuing a notification under Section 4 of the Tamil Nadu Forest Act on 30 April, 1977 and declaration under Section 6 on 20 April, 1978. The father of the petitioner and other co-owners have filed claim petitions before the Forest Settlement Officer claiming right over the property as well as pathway right. In some of the matters, the statutory authority found that the land claimed by them has not been included in the notified area. Therefore, the Forest Settlement Officer opined that no orders were called for. With respect to the pathway right claimed by the land owners through the forest block, the Forest Settlement Officer arrived at a conclusion that to have effective enjoyment of the property in the possession of the land owners, the pathway applied for is essential. Accordingly, the claim was partly allowed.
17. The following table would indicate the details of the claim petitions filed by the father of petitioner and other co-owners and the final orders passed by the Forest Settlement Officer:
Claim No. Claimant Nature of Claim Date of decision Final Order by the Competent Authority 829 Veeranan and four (1) Right over land, 13.03.1979 The Claim Petition was others, S/o.Muthiah bearing Survey Nos. dismissed for non-
Servai 753/1A - 13-59, 6-0-58, prosecution.
750/4 - 7-23.
(2) Pathway through
forest block to Survey
Nos.753/1A and 6 and
750/4.
830 Muthiah Servai, (1) Right over land 07.02.1979 (1) The property in Survey
S/o. Irulappan bearing Survey Nos. Nos.753/6, 750/4, 753/1A
Servai 753/6 - 0-58, and 753/4 were not included
750/4 - 7-23, in the notified area.
753/1A - 13-59 Therefore, no orders
753/4 - 11-73 are necessary.
(2) Pathway through (2) To have effective
forest block to S.Nos. enjoyment of the property
753/6, 750/4, 753/1A, in Survey Nos. Nos.753/6,
753/4. 750/4,753/1A and 753/4, the
pathway applied for is essential.
Accordingly, the
claimant and his successors are
permitted to use the pathway.
1913 Masanam Servai, (1) Right over 11-73 20.03.1979 The Claim Petition was
S/o.Irulappan Servai and 11-73 acres of land dismissed for non-
in Survey No.753/4 prosecution.
included in the forest
block.
(2) Pathway through
Forest Block to S.No.
753/4
1914 M.Muthiah, (1) Right over 2-57, 29.12.1978 (1) The property in
S/o.Masanam Servai 5-33 acres of land in Survey Nos.750/2 and
Survey Nos.750/2, 753/1E. 753/1E of Bodi North
(2) Pathway through Forest Hill has not been
Block to Survey Nos. included in the notified
750/2, 753/1E area. Therefore, no
orders are called for.
(2) The petitioner is now using
an existing Valasai path running
across the proposes forest block
to reach the land in his occupation.
To have effective enjoyment of the
property in Survey Nos.750/2 and
753/1E of Bodi North Hill, the
pathway applied for is essential.
Accordingly, the claimant and
his successors are permitted to
use the pathway.
1915 M.Irulappan (1) Right over 2-62, 29.12.1978 (1) The property in Survey Nos.
S/o. 4-55 acres of land in 750/1,753/1E of Bodi North Hill
Masanam Servai Survey Nos.750/1, 753/1E. has not been included in the
notified area. Therefore,
(2) Pathway through Forest no orders are called for.
Block to Survey Nos.750/1,
753/1E (2) The petitioner is now using
an existing Valasai path running
across the proposed forest block
to reach the land under his
occupation. To have effective enjoyment
of the property in Survey Nos.750/1,
753/1E of Bodi North Hill, the
pathway applied for is essential. Hence,
the claimant and his successors are
permitted to use the pathway.
1916 M.Sundram, (1) Right over 7-90, 4-67 29.12.1978 (1) The property in Survey Nos.555 S/o. acres of land in Survey and 753/1D of Bodi North Hill has not Masanam Servai Nos.555, 753/1D. been included in the notified area.
Therefore,no orders are called for.
(2) Pathway through Forest (2) The petitioner is now using an Block to Survey Nos.555, existing Valasai path running across 753/1D. the proposed forest block to reach the land under his occupation. Therefore, to have effective enjoyment of the property in Survey Nos.555, 753/1D of Bodi North Hill, the pathway applied for is essential. Accordingly, the claimant and his successors are permitted to use the pathway.
1917 M.Gandhi, (1) Right over 7.90, 5.05 29.12.1978 (1) The property in Survey Nos.555, S/o. acres of land in Survey Nos. 753/1B of Bodi North Hill has not been Masanam Servai 555, 753/1B. included in the notified area.
(2) Pathway through Forest Therefore, no orders are called for.
Block to Survey Nos.555, (2) The petitioner is now using 753/1B the existing Valasai path running across the proposed forest block to reach the land under his occupation.
To have effective enjoyment of the property in Survey Nos.555 and 753/1B of Bodi North Hill, the pathway applied for is essential. Accordingly, the claimant and his successors are permitted to use the pathway.
1918 M.Kandasa-my, S/o. (1) Right over 2-62, 4-36 29.12.1978(1) The property in Survey Nos.
Masanam Servai acres of land in Survey Nos. 750/3 and 753/1F of Bodi North 750/3, 753/1F. Hill has not been included in the (2) Pathway through Forest notified area. Therefore, no orders Block to Survey Nos.750/3 are called for.
and 753/1F. (2) The petitioner is now using the existing Valasai path running across the proposed forest block to reach the land under his occupation. To have effective enjoyment of the property in Survey Nos.750/3 and 753/1F of Bodi North Hill, the pathway applied for is essential. Accordingly, the claimant and his successors are permitted to use the pathway.
18. The father of the petitioner has given a statement in Claim No.830 of 1978. The statement would make the position clear that his request was to declare his pathway right. The statement reads thus:
"The only claim of the petitioner is to locate a path way for the to and fro passport.
Therefore, it is prayed that this honourable Court be pleased to reject the objection statement of the District Forest Officer, Dindigul and allow the claimant's claim and thus render justice."
19. The proceedings initiated by the statutory authority and the orders passed in the claim petitions would make the position crystal clear. The mandatory provisions of the Forest Act were scrupulously followed before issuing declaration under Section 6 of the Act. Notices were served on all the land owners. Some of the notices were received by none other than the petitioner. The records maintained by the Settlement Officer proves this fact. After the receipt of notices, the land owners including the father of the petitioner preferred claim petitions. The claims were in respect of right in land as well as a right of way. The Settlement Officer conducted enquiry under Section 8 of the Act and ultimately, passed orders under Section 10. The final order shows that all the required details under Section 11 of the Act were furnished. In case the claimants were aggrieved by the decision, they should have filed an appeal under Section 10(2) or under Section 14 of the Act.
20. The Government of Tamil Nadu, after complying with the legal requirements, published the notification under Section 16 on 26 November, 2009. The notification was published in the Tamil Nadu Government Gazette on 28 April, 2010. The forest, on such declaration, is deemed to be a reserved forest. It is the said notification, which is challenged now on the ground of non compliance of statutory requirements.
21. The statutory formalities were complied with long ago. The father of the petitioner and other co-owners were given the right of way. The petitioner is succeeding to the estate of his father. He is bound by the order passed in the claim petition preferred by his father. The Settlement Officer has declared the pathway right. There was no appeal either from the claimants or by the Forest Officer against the orders passed by the Forest Settlement Officer. The petitioner was aged about 28 years as on the date on which the claim petitions were decided by the statutory authority.
22. The petitioner is guilty of suppression of material particulars. He is now pleading ignorance of the notification issued under Section 4 and declaration under Section 6 of the Act. The records would prove the falsity of case pleaded by the petitioner. The Settlement Officer has issued notices to the co-owners to appear for enquiry in connection with the claim petitions filed by them. It was only the writ petitioner who received the notices on behalf of the claimants. The petitioner, while accepting the notices, indicated that the claimants were out of station and as such, he is accepting the notices in his capacity as brother. The petitioner might be under the belief that the relevant file would not be available now and as such, he can succeed in his attempt to establish that notices were not issued to the parties.
23. The Supreme Court in K.D.Sharma v. Sail [2008(12) SCC 481] indicated that the jurisdiction under Article 226 of the Constitution of India is equitable in nature and as such, the petitioner should approach the Court with clean hands. The Supreme Court said:
"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts of the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim."
24. In Dalip Singh v. State of U.P. [2010(2) SCC 114], the Supreme Court noticed the evolution of new creed of dishonest litigants, resorting to falsehood and unethical means for achieving their goals and deprecated such practice of polluting the stream of justice. The Supreme Court observed:
"2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
25. The Government in the impugned notification clearly indicated the pathway. The petitioner and other co-owners were also given the right of way. It is open to them to use the way along with the local people.
26. The materials produced by the Forest Department clearly prove that all the mandatory provisions were followed in its letter and spirit before publishing the notification under Section 16 of the Act. Therefore, the challenge made to the impugned Government Notification is liable to be rejected.
27. The petitioner in his Writ Petition in W.P.(MD)No.7970 of 2010 seeks a Writ of Mandamus, to restrain the Government from forming a cart track or laying road without acquiring the land under the provisions of Land Acquisition Act. The subject land has already been declared as a reserved forest. There is no question of directing the Government to acquire the land invoking the provisions of Land Acquisition Act. Since the land is declared as a reserved forest, Government is entitled to convert the pathway into a road. The petitioner by suppressing the earlier proceedings filed this Writ Petition and wasted the valuable time of this Court. Accordingly, the Writ Petition in W.P.(MD)No.7970 of 2010 is dismissed with cost quantified at Rs.25,000/- [Rupees twenty five thousand only]. Consequently, the connected miscellaneous petitions are also dismissed.
28. The Writ Petition in W.P.(MD)No.13178 of 2011 is clearly an abuse of process of Court. The said Writ Petition is, therefore, dismissed with cost quantified at Rs.50,000/- [Rupees fifty thousand only]. The connected miscellaneous petitions are also dismissed.
29. The amount of cost in W.P.(MD)No.13178 of 2011 and W.P.(MD)No.7970 of 2010 should be deposited respectively in the relief fund floated by the Chief Minister of Tamil Nadu and Pondichery for providing relief to the victims of cyclonic storm "Thane", which hit the State of Tamil Nadu and Union Territory of Pondicherry in December, 2011. In case of failure to deposit the amount within a period of four weeks from today, the District Collector, Theni is directed to recover the amount treating it as arrear of land revenue.
SML To
1.The Principal Secretary to the Government, Department of Environment and Forest, The Government of Tamil Nadu, Fort St. George, Chennai.
2.The District Collector, Theni District, Theni.
3.The District Forest Officer, Theni District, Theni.
4.The Revenue Divisional Officer, Uthamapalayam, Theni District.
5.The Tahsildar, Bodinayakkanur Taluk, Theni District.