Madras High Court
R.Uma Rani vs The District Collector on 29 September, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
W.P(MD)No.18095 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 01.09.2022
PRONOUNCED ON : 29.09.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P(MD)No.18095 of 2018 and
W.M.P(MD)Nos.15985 & 15986 of 2018
R.Uma Rani ... Petitioner
Vs.
1.The District Collector,
Theni.
2.The Forest Ranger,
Chinnamanur Forest Range,
Chinnamanur. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India,
praying for issuance of a Writ of Certiorari, calling for the records of the
Pre-dated Impugned order passed by the 2nd respondent in Na.Ka.No.
72/2018 dated 13.07.2018 and served to the petitioner on 14.08.2018,
quash the same and granting such other and further relief which this
Court deems fit.
For Petitioner : Mr.R.M.Arun Swaminathan
For Respondents : Mr.R.Suresh Kumar,
Additional Government Pleader
ORDER
Page No.1 of 23
https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 Challenging the impugned order passed by the 2nd respondent in Na.Ka.No.72 of 2018, dated 13.07.2018, this Writ Petition has been filed.
2.The case of the petitioner is that the petitioner purchased a property in survey No.48 of Megamalai Village, Andipatti Taluk, Theni District to an extent of 2 Acres and 54 cents. After purchasing the said property, the petitioner came to know that the property is classified as Private Forest Land, hence, the sale deed was not released by the registering authority for production of Sanction Certificate from the competent authority under Section 3(1)(a) of the Tamil Nadu Preservation of Private Forest Act, 1949. The petitioner approached the committee constituted under 2-A of the Tamil Nadu Preservation of Private Forests Act, 1949. After obtaining report from the Wild Life Warden, Theni; Executive Engineer (Agricultural Engineering), Theni; Tahsildar, Andipatti, the committee headed by the 1st respondent granted Sanction Certificate vide proceedings in Na.Ka.No.3802/2017/B3, dated 22.02.2018. The petitioner intended to build labour quarters, home stay and tea shop, therefore, she applied for planning permission and building approval from the concerned local body i.e., Megamalai Panchayat. Page No.2 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 After perusal of the documents and personal verification, the local body granted following approvals:-
Dated Proceedings Description Extent (In Sq. Valid Upto No. Meters) 25.06.2018 4/2018 Labour 181.96 24.06.2019 13.07.2018 7/2018 Tea Shop 42.96 12.07.2019 13.07.2018 8/2018 Home Stay 165.82 12.07.2019
3.After obtaining the necessary approvals, the petitioner started construction of labour quarters on 26.06.2019, which was objected by the 2nd respondent and the petitioner was not permitted to take construction materials through the forest check post. The petitioner produced Sanction Certificate issued by the 1st respondent and building plan approval granted by the local body, but the 2nd respondent failed to consider the same. Hence, the petitioner made a representation to the 2nd respondent on 10.07.2018 seeking permission to continue the construction work. To his shock and surprise, the 2nd respondent passed the impugned order, dated 13.07.2018, which is under challenge.
4.The learned counsel for the petitioner submitted that the Page No.3 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 impugned order in Na.Ka.No.72 of 2018, dated 13.07.2018 referring to G.O.Ms.No.49 of 2003 (Housing and Urban Development Department), dated 24.03.2003, stated that as per the Tamil Nadu Preservation of Private Forests Act, 1949, Megamalai Village has been declared as reserved area, hence, for construction of lodges and moving materials and minerals in the reserved forest, necessary private permission to be obtained from the concerned authorities. In this case, the petitioner did not obtain any private permission, which is in violation of Section 2-A of Tamil Nadu Preservation of Private Forests Act, 1949, hence, restriction imposed. He further submitted that the impugned order was passed without application of mind and in the Government Order, there is no reference to the petitioner's village. The petitioner complied with the formalities and obtained Sanction Certificate from the competent committee headed by the 1st respondent under the Tamil Nadu Preservation of Private Forests Act, 1949. Further, there is no legal embargo under the existing Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 and the Tamil Nadu Preservation of Private Forests Act, 1949 for transportation of construction materials. The petitioner already obtained hand loan, jewel loan from various sources and also applied for Page No.4 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 further loan to complete building construction within the time stipulated by the appropriate local body. Further, the petitioner obtained loan from Sri Ram Finance to the tune of Rs.15,00,000/- (Rupees Fifteen Lakh only) and, has been paying the interest. Due to unnecessary impediment caused by the 2nd respondent, the construction work is stopped and thereby, the petitioner is put into heavy financial loss and mental agony.
Already, the construction material purchased are dumped in foothills of Megamalai, which are now getting wasted due to the restrictions imposed by the 2nd respondent. Hence, the petitioner has filed this Writ Petition seeking to quash the order of the 2nd respondent, dated 13.07.2018.
5.Mr.R.Suresh Kumar, learned Additional Government Pleader appearing for the respondents filed counter affidavit and submitted that the representation of the petitioner, dated 10.07.2018 seeking permission to build labour quarters measuring 1950 sq.ft in her patta land nearly 2 Acre 54 Cents situated in survey No.48 at Megamalai Hill Area, was duly considered and the permission was denied for the reason that the petitioner should get prior permission from the committee constituted under the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955. He Page No.5 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 further submitted that the petitioner's vendor applied for prior permission and No Objection Certificate from the competent authority constituted under the Tamil Nadu Preservation of Private Forests Act, 1949 and necessary sanction were granted to sell the land and order was passed on 22.02.2018 with following conditions:-
1)The petitioner should not change the condition of the land.
2)The petitioner should not cut the trees and should not change the condition.
3)The land should not be used for non-forest purposes.
6.It is further submitted that the Sanction Certificate given is only for the purpose of selling the land in hill areas and not for removing trees, to build labour quarters, home stay and tea shop. The Executive Officer of Megamalai Panchayat has no power to grant permission for Non Forest Activities inside the hill areas and prior permission of competent authority is necessary. The petitioner wrongly interpreted G.O.Ms.No.49 of Housing and Urban Development (UD2.2) Department, dated 24.03.2003 and claiming exemption for building of labour quarters, home stay and tea shop in hill areas without prior Page No.6 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 permission from the competent authority constituted under the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955. As per above said Government Order, the exemption is only to the plain area of hills, not for hill area village. The petitioner's land is coming under Megamalai Village, which is notified as hill area village on 21.10.1979. After notification coming into force, no exemption can be granted under the Tamil Nadu Hill Areas (Preservation of Tress) Act, 1955. Since the petitioner's land is within the notified area and classified as hill area village, construction of labour quarters and other activities are prohibited under the Act. The petitioner has already violated the condition by cutting trees in the land without prior permission and thereby, committed the offence under Sections 3(1)(a)(b)(c), 4(1)(2) and 7 of the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 and she was charged and a case was registered in H.P.O.R.No.1 of 2018.
7.He further submitted that the petitioner already violated the condition and she is not eligible to construct the labour quarters, home stay and tea shop inside the hill area without prior permission under the Act, which is rightly decided by the 2nd respondent by way of impugned Page No.7 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 order, dated 13.07.2018. Any exemption from the Government Order, can be done by the Government under Section 3(3) of the Tamil Nadu Preservation of Private Forests Act, 1949. Even Section 3(2) of the Tamil Nadu Preservation of Private Forests Act, 1949 clearly prohibits cutting of trees and construction of labour quarters and other activities in hill area.
8.The learned Additional Government Pleader filed additional counter and made his submissions that the property in survey No.48 of Megamalai Village, Andipatti Taluk, Theni District is situated as an enclosure in Megamalai Reserved Forest. The said area is declared as Megamalai Wildlife Sanctuary vide G.O(D)No.63, Environment and Forests (FR V), dated. 26.06.2009 and the area surrounding the said land is part of the Megamalai RF, which was declared as a Reserved Forest vide G.O.Ms.No.118, Environment and Forest Department (FR-14), dated 09.09.2009. The property is located between Megamalai RF and Koothanatchiyar FT sanctuary. The petitioner obtained license for building plan approval from Megamalai Village panchayat for construction of tea shop to the extent of 42.96 sq.mts vide the President, Page No.8 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 Megamalai Village Panchayat, proceedings No.7/2018-2019, dated 13.07.2018 and for home stay building plan approval to the extent of 165.82 sq.mts vide President, Megamalai Village Panchyat proceedings in No.8/2018-2019, dated 13.07.2018. Further, the petitioner has also obtained license for building plan approval vide President, Megamalai Village Panchayat, proceedings No.4/2018-2019, dated 25.06.2018 to the extent of 189.15 sq.mts comprised in survey No.48 of Megamalai Village, Andipatti Taluk, Theni District. The condition of the license granted is that the construction to be completed within a period of one year and in this case, the license period is already elapsed. In the meanwhile, the Tamil Nadu Government enacted the Tamil Nadu Combined Development and Building Rules, 2019, which came into operation with effect from 04.02.2019 vide G.O.Ms.No.18, whereby it is stipulated in annexure XVII (Rule 19) under Development Prohibited or Restricted as per clause 4-Construction of building in other restricted or prohibited areas. As per guidelines, the necessary clearance and permission from the concerned authority to be obtained. In this case, it has not been done so.
Page No.9 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018
9.He further submitted that the petitioner used her land for non forest purpose, hence, the petitioner ought to have obtained prior approval from the Central Government as per Section 2 of the Tamil Nadu Preservation of Private Forests Act, 1949. The licensing authority namely Megamalai Village Panchayat is duty bound to follow the Tamil Nadu Combined Development and Building Rules, 2019. The Hon'ble Apex Court in the case of “T.N.Godavarman Thirumalpad Versus Union of India and others” held that 'the Term “forest land” occurring in Section 2 will not include “forest” as understood in the dictionary sense, but also any area recoded as forest in the Government record irrespective of the ownership'. In this case, the petitioner failed to obtain necessary approval from the Central Government. Hence, she is not entitled to construct his own building, particularly, for non forest purposes, even though the said land is her own property. The petitioner conveniently made three applications separately, one for constructing building, second one for tea shop and third one for home stay in her land. This breakup by giving three applications is to circumvent the rules and restrictions given in G.O.Ms.No.49, dated 24.03.2003. He further submitted that as per annexure-I of the said G.O, the petitioner's land is Page No.10 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 in hill area Megamalai Village, which is shown as Serial No.3 in Theni District. The petitioner's land is located amidst forest area, which is declared as Megamalai Wild Life Sanctuary and Srivilliputhur Megamelai Tiger Reserve. The provisions of the Tamil Nadu Preservation of Private Forests Act, 1949 and the Forest Conservation Act, 1980 are strictly applicable to the petitioner's land. The petitioner intends to put up building for non forest activity, which is prohibited.
10.The learned counsel for the petitioner has filed reply affidavit to the additional counter filed by the learned Additional Government Pleader and submitted that after August 2018 till date, the 2nd respondent permitted construction of several commercial building including resorts in the said area without any prior permission or building license, but the petitioner is targeted for the reasons best known. The petitioner's land is situated 545 meters from Megamalai Reserved Forest and 720 meters from Koothanatchiyar Reserved Forest. The petitioner's land is covered as “Private Forest” under the Tamil Nadu Preservation of Private Forests Act, 1949. As per the Tamil Nadu Preservation of Private Forests Act, 1949, prior sanction has to be obtained for sale, mortgage or any Page No.11 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 alienation. The petitioner obtained prior sanction before purchase of the said land and obtained necessary building plan permission for construction. The objection of the 2nd respondent that within one year, the construction to be completed and now, the permission is elapsed, are not proper. The petitioner was unable to complete the construction due to the restriction imposed by the 2nd respondent for movement of men and materials. Further, the Tamil Nadu Combined Development and Building Rules, 2019 came into operation only from 04.02.2019, which is prospective. The contention of the 2nd respondent that the petitioner to obtain prior approval from the Central Government as per Section 2 of the Forest Conservation Act, 1980 is not proper. The State Government to get approval from the Central Government for using Reserved Forest for non forest purpose such as laying of roads, railway tracks and mining etc. It is for the State Government to get any prior permission and not individuals as such. Further, there is no single approval granted by the Central Government in the entire Megamalai Village. The petitioner obtained approval for construction of tea shop, home stay and labour quarters. It is apparent that the said approval from Hill Area Conservation Authority is needed for commercial constructions beyond Page No.12 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 300 square meters. The commercial construction of the petitioner as regard tea shop is to the extent of 42.96 square meter and 165.82 square meter for home stay, which are well within 300 square meter. The petitioner already started her construction work after obtaining prior approval from the concerned authorities. Now, restraining the constructions in midway for various extraneous reasons, is not proper.
11.The learned Additional Government Pleader filed second additional counter affidavit and submitted that there are three constructions in Megamalai area after August 2018 to till date and the same are as follows:-
S. Person Name Building Permission Reason for Present No. New/Old Issued Permission Status 1 Kubendran, Old Wildlife To maintain Home stay S/o.Rasu Warden, the existing is in Megamalai house operation Wildlife without Division, valid Theni ref.No. permission 11190/2020/L , dated 06.08.2020 Page No.13 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 S. Person Name Building Permission Reason for Present No. New/Old Issued Permission Status 2 Arockiya Thai, Old Nil Nil Operated as W/o.Arockiyas “Arockiya amy Annai” Home Stay without vaild permission 3 Anandan, New Wildlife To build Two storey-
S/o.Ponnukala Warden, labour shed ed building
i Megamalai for coffee operated as
Wildlife cultivation “Ponmayil
Division, Resort” is
Theni, functioning
Ref.No. without
8875/2018/L, valid
dated permission
02.03.2020
12.He further submitted that the Forest Officials came to know about the illegal resorts are running without valid permission, the Deputy Director, Srivilliputhur Megamalai Tiger Reserve, Megamalai has sent a communication to the 1st respondent vide C.No.2783/21/D2, dated 30.12.2021 and 24.05.2022 for taking appropriate action against the said illegal resorts. He further submitted that apart from the petitioner, many such persons are attempting to construct resorts and home stay in the Page No.14 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 lands falling under the Tamil Nadu Hill Area (Preservation of Trees) Act, 1955 and Tamil Nadu Preservation of Private Forests Act, 1949. The lands notified under Private Forests are ecologically significant areas contiguous with forest areas and are “forests” in its physical, ecological and biological effect. These lands are not to be subjected to indiscriminate destruction by construction activities. It is essential to prevent such activities in these lands to uphold the intention of the above statutory laws and the order of the Hon'ble Apex Court on these lands.
Hence, the contention of the petitioner is unlawful and not maintainable. Similar activities are to be curbed to protect such ecologically significant areas. The three illegal home stays, which have come to the notice of the Forest Official would be pursued by taking appropriate action. To cancel the home stay and also to remove such illegal activities, the Hon'ble Apex Court time and again had given guidelines in many cases. Recently in the case of Elephant Corridor, the Hon'ble Apex Court gave direction for removal of illegal home stays and issued guidelines to take appropriate action without loss of time.
Page No.15 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018
13.In support of his submissions, the learned Additional Government Pleader relied upon the decision of the Hon'ble Apex Court in the cases of “Supreme Court Monitoring Committee Versus Mussoorie Dehradun Development Authority and others reported in (1997) 11 Supreme Court Cases 605” and “S.Chakravarthi Versus District Collector, Thiruvallur District reported in (2009) 1 LW 560.”
14.This Court considered the rival submissions and perused the materials available on record.
15.It is seen that the land in survey No.48 to the extent of 2.54 acres in Megamalai Village was purchased by the petitioner and the patta was obtained in the name of A.R.Selvasvedha. Initially, without obtaining prior sanction, one Parvathi Rathinammal of Chinnamanur sold the property in document No.2303 of 1978, dated 27.10.1978 to one Kaliyappan. The said Kaliyappan without permission sold the property to A.R.Selvasvedha, the vendor of the petitioner. The competent authority viz., the Wild Life Warden, Theni; Executive Engineer (Agricultural Engineering), Theni; Tahsildar, Andipatti, the committee Page No.16 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 headed by the 1st respondent has granted No Objection Certificate to the petitioner to purchase the property as per the Tamil Nadu Preservation of Private Forests Act, 1949. The three conditions imposed are (i)The petitioner should not change the condition of the land, (ii)The petitioner should not cut the trees and should not change the condition and (iii)The petitioner not to indulge in any activities causing damage to the environment and not to violate the Forest Conservation Act, 1980. The petitioner agreeing to the conditions, purchased the property, thereafter, obtained planning permission from Megamalai Panchayat on 25.06.2018 for construction of new buildings such as tea shop to the extent of 42.96 sq.mts, home stay to the extent of 165.82 sq.mts and staff quarters to the extent of 181.15 sq.mts, in total 389.93 sq.mts, which is against the G.O.Ms.No.49, dated 24.03.2003 and also against the conditions imposed on the petitioner while granting permission to purchase the property.
16.It is to be noted that the petitioner's land is located between two forest areas viz., Megamalai Wild Life Sanctuary and Srivilliputhur Megamelai Tiger Reserve, which is not in dispute. The Reserve Forest Page No.17 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 areas have been notified much before the petitioner purchasing the property. The petitioner knowing very well about the nature and condition of the property, purchased the same with restrictions. While being so, now the petitioner cannot claim that she had been deprived of right in putting up construction, that too for construction of new building viz., tea shop, home stay and labour quarters, which are non forest activity. The petitioner seeking parity referring to other illegal home stays, which came after August 2018, is not proper. The illegal constructions and activities of others cannot be a ground for the petitioner to have non forest activity in a Reserved Forest area.
17.The Hon'ble Apex Court in the case of “T.N.Godavarman Thirumalpad Versus Union of India” had defined the meaning of “forest” and held that the term “forest land” occuring in Section 2 will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. Further, the permission of Central Government is required if any non forest activity putting up building in any manner. Section 2(ii) of Forest Conservation Act, 1980 clarifies that an order from the Central Page No.18 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 Government is necessary and no State Government or any authority can make an order without approval of the Central Government for the use of any forest or any portion thereof or any non forest purpose. The Forest Conservation Act, 1980 clearly laid the embargo in this aspect that any non forest activity requires prior permission of the Central Government as held by the Hon'ble Apex Court in the case of “Supreme Court Monitoring Committee Versus Mussoorie Dehradun Development Authority and others reported in (1997) 11 Supreme Court Cases 605”, which has been followed by this Court in a Public Interest Litigation in W.P.No.20918 of 2008 in the case of “S.Chakravarthi Versus the District Collector, Thiruvallur District, Thiruvallur and others”.
18.In S.Chakravarthi (cited supra) case, the Hon'ble Division Bench of this Court had followed the case of “Supreme Court Monitoring Committee Versus Mussoorie Dehradun Development Authority and others reported in (1997) 11 Supreme Court Cases 605” and held that once the land has been declared as Forest land, without getting permission from the Central Government, felling of trees would be in direct violation of Section 2(ii) of Forest Conservation Act, 1980 Page No.19 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 and also held that any building activity permitted within forest area would be non forest activity, which requires prior permission of the Central Government, hence, denied the permission to the State Government to put up construction of Samathuvapuram.
19.In this case, the petitioner's land is located between two forest areas viz., Megamalai Wild Life Sanctuary and Srivilliputhur Megamelai Tiger Reserve. Hence, the petitioner has to obtain No Objection Certificate from the Central Government for the purpose of purchasing the property and for putting up construction. In this case, obtaining three independent permissions for building home stay, tea shop and staff quarters in the same survey number is only to get over the restrictions imposed in the G.O.Ms.No.49, dated 24.03.2003. This planning permission would no way give any right to the petitioner to move building material to the restricted forest area and to put up the construction without approval. As per the Tamil Nadu Preservation of Private Forests Act, 1949 and Section 2(ii) of Conservation of Forest Act, 1980, any forest land or any portion thereof cannot be used for non forest purpose, without prior permission of the Central Government. Page No.20 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018
20.In view of the above, this Court is not inclined to interfere with the impugned order passed by the 2nd respondent in Na.Ka.No.72 of 2018, dated 13.07.2018 and the same is hereby confirmed. Accordingly, this Writ Petition deserves to be dismissed and, is dismissed.
21.This Court places hope on the Deputy Director, Srivilliputhur Megamalai Tiger Reserve, Megamalai to pursue the communication in C.No.2783/21/D2, dated 30.12.2021 and 24.05.2022 and to take appropriate speedy action in removing the said three illegal resorts running without permission in Megamalai area and also to ensure, in future, no such illegal resorts are permitted to function, in any manner. Consequently, the connected Miscellaneous Petitions are closed. No costs.
29.09.2022 Internet : Yes / No Index : Yes / No vv2 Page No.21 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 To
1.The District Collector, Theni.
2.The Forest Ranger, Chinnamanur Forest Range, Chinnamanur.
Copy To:
The Deputy Director, Srivilliputhur Megamalai Tiger Reserve, Megamalai.
Page No.22 of 23 https://www.mhc.tn.gov.in/judis W.P(MD)No.18095 of 2018 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY ORDER IN W.P(MD)No.18095 of 2018 29.09.2022 Page No.23 of 23 https://www.mhc.tn.gov.in/judis