Madras High Court
V.Jegan vs The District Collector on 15 February, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar, R.Vijayakumar
W.P.(MD) No.10663 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD) No.10663 of 2018
and
W.M.P.(MD) Nos.9754 of 2018 & 2726 of 2020
V.Jegan ... Petitioner
-vs-
1.The District Collector
Kanyakumari District
2.The District Forest Officer
Kanyakumari District
3.The Executive Officer
Mayiladi Town Panchayat
Town Panchayat Office
Mayiladi, Agastheeswaram Taluk
Kanyakumari District
4.Needu Society
rep.by Fr.L.Selvaraj
Parish Priest
Church of St.Barbara
Ramanthurai
Keezhkulam-629 193 ... Respondents
_______________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.10663 of 2018
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of mandamus directing the respondents to demolish the construction
made in S.No.666/2 and 667/4 at Perumalpuram Village, within the time
stipulated by this Court.
For Petitioner : Mr.K.Govindarajan
for Mr.M.Karl Marx
For Respondents : Mr.N.Satheesh Kumar
Additional Government Pleader for R1 & R2
Mr.R.Sethuraman for R3
Mr.S.C.Herold Singh for R4
ORDER
[Order of the Court was made by D.KRISHNAKUMAR, J.] Prayer in this writ petition is to direct the respondents to demolish the construction made by the fourth respondent in Survey Nos.666/2 and 667/4 of Perumalpuram Village, within the time stipulated by this Court.
2. According to the petitioner, Marunthuvazh Malai (abode of medicinal herbs) is situated in Survey Nos.742/1, 2, 3 and 4 at Kulasekarapuram Village, Agastheeswaram Taluk, Kanyakumari District, _______________ Page 2 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 which is the southern tip of the western ghats. The said Marunthuvazh Malai is a fragment of Sanjeevi Mountain. The total area of the said hill is about 248 Acres and there are more than two hundred caves. It is a home for abundance of unique native medicinal plants and trees. The second respondent is maintaining a herbal farm on the hill.
3. Further according to the petitioner, agriculture is the main occupation for the residents of the villages around the said hill. The water released for irrigation purpose from Pechiparai Dam and Perunchani Dam reaches Nanjinadu Puthanar through the said hill. In view of the rich bio diversity, religious significance, presence of feeder canal and the geographical location, the said Maruthuvazh Malai has been notified as Reserve Forest under Section 4 of the Tamil Nadu Forest Act, 1882 vide G.O.Ms.No.102EF, Forest Department, dated 16.03.2012.
4. Further, according to the petitioner, the fourth respondent is constructing a recreational home in Survey Nos.666/2 and 667/4, measuring an extent of 2992 sq.ft., on the foot of the said hill, without obtaining necessary permission from the respondents. The distance between the said _______________ Page 3 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 hill and the building site is less than 54 feet. Due to the dust generated by the vehicles' movement for loading, unloading and transporting construction materials for the said building, the ambient air in the said hill gets polluted.
5. Further, according to the petitioner, as per Rule 7(2) of the Tamil Nadu District Municipalities (Hill Station) Building Rules,1993, no assignment of land shall be granted for agricultural purpose or any other purpose within 150 Meters from the Reserve Forest and wooded lands or areas of special interest as may be declared by the Government from time to time. In such circumstances, construction of building by the fourth respondent in the subject land in less than 50 feet from the said hill, is illegal. Ventilating the impending danger due to such construction activities, the petitioner sent a representation, dated 09.04.2018, to the respondents 1 and 2. However, the same has not been considered by the respondents 1 and 2. Hence, he has filed the present writ petition.
6. The District Forest Officer, Kanyakumari District, has filed a counter affidavit stating that under Section 4 of the Tamil Nadu Forest Act, 1882, the Government, vide G.O.(Ms) No.82, Environment and Forests (FR.14) _______________ Page 4 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 Department, dated 16.03.2012, has reserved the land with an intention to declare it as a reserve forest land and it is spread over an area of 248.095 Hectares in S.F.No.742/1. The provisions of Sections 21 and 26 of the Tamil Nadu Forest Act, 1882 primarily apply on the said land apart from other statutory provisions of various Acts in place.
7. The District Forest Officer has further stated that the subject building is located at about 25 Meters away from the boundary of the reserve land. The reserve land in S.F.No.742/1 falls in Kulasekarapuram Village, Agastheeswaram Taluk, which is a village identified as hill village in hill taluks vide G.O.Ms.No.48, Housing and Urban Development (UD2.2) Department, dated 24.03.2093. Therefore, the provisions of the Tamil Nadu Hill area (Preservation of the Trees) Act, 1955 would not apply to the Survey Nos.666/2 and 667/4, wherein the fourth respondent constructed a building, which falls in Perumalpuram Village.
8. This Court, considering the facts and circumstances of the case, by order dated 31.01.2024, directed the District Collector / first respondent to inspect the property in question and file a report before this _______________ Page 5 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 Court. Accordingly, the first respondent has filed an inspection report before this Court.
9. In the inspection report, the District Collector has stated that he inspected the property in question on 14.02.2024 along with the Revenue Divisional Officer, Nagercoil; Assistant Director, Town and Country Planning, Kanniyakumari District; Assistant Conservator of Forests, Kanniyakumari; Assistant Executive Engineer (Town Panchayats); Tahsildar, Agastheeswaram; Revenue Inspector, Suchindram; Firka Surveyor, Suchindram; Village Administrative Officer, Kulasekarapuram and Executive Officer, Mayiladi Town Panchayat.
10. Further, according to the District Collector, Kulasekarapuram Village, Agastheeswaram Taluk, Kanyakumari District, wherein Marunthuvamalai is situated, falls under Hill Area Conservations Authority (HACA) and the land in Re Survey No.742/1 is declared as “Reserve Land” not as a Reserve Forest Land, as contended by the petitioner. As per G.O.Ms.No. 49, Housing and Urban and Development (UD2.2) Department, dated 24.03.2003, Kulasekarapuram Village, Agastheeswaram Taluk, falls under _______________ Page 6 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 HACA. Further, as per Annexure-II of the said Government Order, the residential building having plinth area of more than 300 sq.meters alone is required prior clearance from HACA Authority. However, the subject building is having plinth area of 277.96 sq.meters and therefore, the third respondent granted building plan permission.
11. Further, according to the District Collector, the distance between the forest boundary and the subject building is 31.0 Meters. Further, G.O.Ms.No.120, Municipal Administration and Water Supply Department, dated 03.06.1993 is applicable only to the Hill Stations i.e.Udagamandalam, Coonoor, Kodaikanal and Yercaud. The property in question is not a hill station. Hence, Rule 7(2) of the Tamil Nadu District Municipalities (Hill Stations) Building Rules, 1993 is not applicable for the property in question.
12. A perusal of the counter affidavit filed by the District Forest Officer categorically shows that the subject building is located about 25 Meters away from the boundary of the reserve land and a perusal of the inspection report of the District Collector categorically shows that the land in Re Survey No.742/1 is declared as “Reserve Land” not as a Reserve Forest _______________ Page 7 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018 Land. Hence, in view of the said specific stand of the District Collector and the District Forest Officer and also the fact that the the land in Survey No. 742/1 of Kulaseram Village is not declared as a Reserve Forest Land and it is only a Reserve Land, we are of the view that the building in question does not come within the prohibited distance. Therefore, we find no force in the contentions of the petitioners and we are not inclined to entertain this writ petition.
13. At this juncture, learned counsel for the petitioner submitted that the authorities concerned may be directed to provide buffer zone in the area in question. In this regard, we find no material either in the pleadings or in the typed set of documents filed by the petitioner. Hence, we are not inclined to issue any direction to the authorities concerned with regard to forming of buffer zone.
14. However, if the petitioner is still having any other grievance, it is open to him to approach the authority concerned and redress his grievance in the manner known to law.
_______________ Page 8 of 10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.10663 of 2018
15. With the above observations, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[D.K.K., J.] [R.V., J.]
15.02.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The District Collector,
Kanyakumari District.
2.The District Forest Officer,
Kanyakumari District.
_______________
Page 9 of 10
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.10663 of 2018
D.KRISHNAKUMAR, J.
and
R.VIJAYAKUMAR, J.
krk
W.P.(MD) No.10663 of 2018
and
W.M.P.(MD) Nos.9754 of 2018 & 2726
of 2020
15.02.2024
_______________
Page 10 of 10
https://www.mhc.tn.gov.in/judis