Madras High Court
Kalyan Gangathara Jawahar vs The Government Of Tamil Nadu, ... on 24 February, 1997
Equivalent citations: (1997)2MLJ107
ORDER E. Padmanabhan, J.
1. The petitioner has prayed for the issue of a writ of certiorarified mandamus, to call for the records relating to the G.O. (1D) No. 44, dated 21.3.1996, quash the same and direct the respondents herein to renew the lease in respect of 50 acres of Reserve Forest at Kuthiraimolitheri adjoining Kanchinavilai Village, V.O.C. District.
2. The respondents have filed a detailed counter. This Court issued rule nisi on 30.7.1996 and also granted interim stay in W.M.P. No. 13157 of 1996 on 30.7.1996. The respondents have filed W.M.P. No. 25857 of 1996 to vacate the order of interim stay granted in W.M.P. No. 13157 of 1996 on 30.7.1996. The W.M.Ps. were listed for hearing on 19.2.1997. At this stage, by consent of parties, the main writ petition itself was taken up for final hearing, as it was contended that the respondents have resumed the lands and possession of the land is also with the respondents.
3. Mr. M. Sekar, learned Counsel appearing for the petitioner contended that the petitioner is entitled for renewal of lease in his favour as he had spent substantial amount in improving the land and planting trees, that the petitioner was assured of renewal as well as assignment of land and so the order of rejection of renewal is vitiated and arbitrary besides raising other contentions.
4. Mr. Sekar, learned Counsel also contended that in terms of Clause 26(a) of the grant dated 26.12.1994 the respondents are obliged to renew the lease and the renewal is a vested right that has accrued to the petitioner. It is further contended that the respondents having given the assurance by way of Government Orders on the earlier occasion, for the renewal or for permanent grant, the respondents are now estopped from denying the said renewal or grant at this stage. The learned Counsel also stated that the petitioner has also filed a suit on the file of City Civil Court seeking for the relief of permanent injunction restraining the defendants from evicting the petitioner and also for the relief of mandatory injunction to renew the lease for a further period of 50 years. It is also admitted that I.A. filed for interim injunction in the said suit is pending and no interim order has been passed. Mr. Titus Jesudoss, learned Additional Government Pleader (Forest) while filing a detailed counter on behalf of the respondents contended that the petitioner has no vested right as it is a reserved forest, that the lease cannot be granted in favour of the petitioner in view of the policy decision taken by the respondents, that the order of rejection is valid, that the petitioner cannot have two parallel remedies, that the land is resumed by the respondents and possession is also with the respondents, that the Supreme Court had also laid down in identical case that the petitioner had no right to ask for renewal, that reserve forest should be protected, that the area in question is being declared as Wildlife Sanctuary and the activities carried on by the petitioner is not allowed under the Wildlife Protection Act, 1972, that forest land cannot be diverted for non-foresty purpose and after due consideration, the request for renewal has been rightly rejected by the State Government. It is also contended by the learned Additional Government Pleader that the land has already been resumed by the Forest Department on 26.3.1996 and the land is now under the control of the Forest Department. By raising these contentions, the learned Additional Government Pleader sought for dismissal of the writ petition.
5. The petitioner states that an extent of 50 acres in Kuthirai Mozhitheri was granted on lease to his father for a period of 50 years from 1.10.1945, that the terms and conditions of the contract dated 26.12.1944 has been incorporated in the agreement, that the petitioner's father had spent several lakhs of rupees for improving the land for cultivation, that the petitioner's father had not only raised cultivation but also planted various fruit trees, that the occupation of the petitioner was the source of livelihood for several local villagers, that the petitioners father applied for assignment of the land on 28.2.1956 which was rejected on 24.12.1956 while granting liberty to seek renewal of lease, that on the request made by the petitioner's father, lease was assigned in favour of the petitioner and his brother, that the petitioner is cultivating the lands till date, that the petitioner had applied to the respondent for the grant of renewal or for assignment of the lands, that pending disposal of the application for renewal of lease, action was taken by the respondent which necessitated the petitioner to file W.P. No. 13464 of 1995, that this Court directed the respondent to consider the request for renewal of lease and pass orders within 3 months from 28.9.1995, that no orders have been passed, that as the petitioner has been threatened with dispossession, the petitioner instituted O.S. No. 1351 of 1996 on the file of City Civil Court, Madras seeking for the relief of permanent injunction restraining eviction and also for the relief of mandatory injunction to renew the lease for a further period of 50 years or grant patta in favour of the petitioner, that I.A. No. 2216 of 1996 for interim injunction is pending, and that by the impugned G.O. the 1st respondent had rejected the application for renewal and hence the writ petition. According to the learned Counsel for the petitioner, the petitioner is entitled for renewal of licence as he got a vested right of renewal.
6. It is also contended that the refusal to renew the lease is illegal, arbitrary and the respondents are estopped by conduct. Mr. Sekar, learned Counsel for the petitioner elaborately argued the matter. On the other hand, Mr. Titus Jesudoss, learned Additional Government Pleader (Forest) contended that for valid reasons, the Government had rejected the request for renewal and the order is fair and just.
7. The learned Additional Government Pleader (Forest) referred to para 3 and 4 of the impugned order which reads thus:
The Chief Wildlife Warden in his letter second read above has reported that the request for renewal of lease cannot be accepted as the entire Tirunelveli Division is proposed for declaration as Nellai Wildlife Sanctuary and such activity as practised till now is not allowed under the Wildlife Protection Act, 1972. He has added that if this case is considered favourably it will be a precedent for other such lesses including Cardamom leases in existence in Tirunelveli Division. The District Forest Officer, Tirunelveli and the Chief Conservator of Forests (Wild Life) further added that the lessee has violated some of the conditions of the grant of lease and has not recommended the renewal of lease. The Chief Conservator of Forests (Wildlife) has recommended that the request of the lessee be rejected according to the Forest (Conservation) Act, 1980 as no forest land can be diverted for non-forestry purposes. The Principal Chief Conservator of Forests has also concurred with the views of the Chief Conservator of Forests (Wild life). The Government after careful consideration accepted the aforesaid views and accordingly reject the request of Tvl. Kalyan Gangadara Jawahar and Kalyan Vijayaraghavan (legal heir of Thiru G. Kalyanasundaram Nadar) of Kanchanvilai the original lessee) for the renewal of lease beyond 30.9.1995 or for permanent assignment of the 50 acres of reserved forest land in Kudrimozhitheri reserve forest in V.O.C. Chidambaranar District.
8. According to the learned Additional Government Pleader (Forest) the impugned order is valid and no interference is called for. It was also pointed out that the land has already been resumed by the Forest Department and the lands are in possession of the Forest Department since 26.3.1996 and under the Control of the Forest Department since 26.3.1996. The learned Additional Government Pleader elaborated the various objections raised by him.
9. The contention that the petitioner has got the right of renewal, as rightly contended by the learned Additional Government Pleader is misconceived. The petitioner had no such right of renewal. There is no clause in the original grant or agreement referred to by the petitioner conferring the right of renewal. The contention raised in this respect is misconceived. Mr. Sekar, relied upon G.O.Ms. No. 3001, Food and Agriculture Department dated 24.12.1956 and contended that the Government is deemed to have assured the renewal. This is also a factual misconception. In fact Clause 26(a) which is relied upon by Mr. M. Sekar learned Counsel for the petitioner reads thus:
26(a) If not less than three clear months before the expiry of this grant an application for its renewal is presented to the District Forest Officer, the Government may renew the grant, but shall in no case is deemed to be under an obligation to do so.
This stipulation in the grant in no way confers obligation on the part of the respondent to renew the lease. It provides that the Government may renew the grant in case if it deems fit. As such, the petitioner has no right to compel the respondent to renew the lease, which expired on 30.9.1995. There is no obligation on the part of the respondent to renew the lease as contended by the learned Counsel for the petitioner. The grant has to be construed strictly and there is no difficulty to hold that the petitioner has no right to compel the respondents to renew the lease in favour of the petitioner.
10. As rightly contended by the learned Counsel for the respondent, not only the land has been already resumed by the Forest Department but also no right has been conferred on the writ petitioner to compel the respondents to renew the lease in favour of the petitioner. The G.O. referred by the learned Counsel for the petitioner is also of no consequence as it has been specifically set out in the said G.O. that the petitioner may renew his request for renewal three months before the date of expiry of the present lease, in terms of Clause 26(a) of the order of grant. Thus, the reliance placed on G.O.Ms. No. 3001, Food and Agriculture, dated 24.12.1956 also cannot be sustained and it is misconceived.
11. The Government had also taken a policy decision not to renew the lease in respect of Reserve Forest and there is justification for the same. The Supreme Court had occasion to consider identifical request in S.S. Rajalinga Raja etc. v. Conservator of Forests and Ors. S.L.P. No. 4799 of 1990 and had declined to interfere with the judgment of this Court while upholding the policy decision of the Government under identical circumstances.
In view of the affidavit of Dr. S. Narayan Secretary to Government, Environment and Forest Department, Government of Tamil Nadu, it is evident that it is not possible for the Government either to renew the leases in favour of the petitioners or to allot them alternative lands for fresh cardamom cultivation. Equally the Government is unable to suggest any other remedies to help the situation. It has been emphasised that it is a policy matter not to permit cardamom cultivation in wildlife sanctuaries and the instant one is for tiger preservation; keeping that in view, we find that we cannot help the petitioners at all. They have to seek redress elsewhere in accordance with law. Petitions are dismissed.
(Italics supplied)
12. In the present case also, the Government has filed a detailed counter-affidavit and as seen from the impugned order, the Government had taken the policy decision not to renew the lease or grant in respect of the reserve forest and in particular after the Forest Conservation Act, 1980. In terms of Forest Conservation Act, 1980, no State Government shall deserve any portion of the reserve forest or assign the same by way of lease or otherwise to any private person or to any authority, without prior approval of Central Government and such action is punishable. Petitioner cannot compel the respondent to renew the lease which and already expired and with respect to which land possession has already been resumed by the respondents on 26.3.1996.
13. It is further stated in the counter-affidavit that the Government has decided to develop the forest into 'Nellai Wild Life Sanctuary' for the protection and conservation of wild Life and Flora and the land in question falls within that sanctuary area and that being the position, as rightly contended by the learned Additional Government Pleader, no part of the land can be leased out to any individual for his benefit like the petitioner. The Additional Government Pleader also placed reliance upon the decision reported in Usuft Khasis v. Rangage Officer Jirimukh A.I.R. 1954, Manipur 31; Rajendra Singh v. State of Uttar Pradesh ; Preeti Singha Roy v. Calcutta Tramsways Co. .
14. It is being rightly contended by the learned additional Government Pleader that not only the petitioner had no right of renewal but also the policy decision has been taken by the Government not to lease out the land. Identical policy has also been up held by the Supreme Court and consequently, the respondents cannot be compelled to renew the lease in favour of the petitioner.
15. Further the petitioner is not entitled to prosecute two parallel remedies, as admittedly the petitioner has already filed a suit for the relief of permanent and mandatory injunction. There is force in the objection raised by the learned Additional Government Pleader.
16. The order impugned, which is already extracted supra, is in no way vitiated. The first respondent, State Government has applied its mind fairly, reasonably and had also adverted to all the relevant aspects and as such, no interference is called for by this Court exercising jurisdiction under Article 226 of the Constitution. In this respect, the Apex Court in the decision reported in State of U.P. v. Dhar Mander Prasad Singh had laid down the law relating to the power of judicial review under Article 226 of the Constitution. At page 1010 it has been held thus:
However, judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. The Chief Constable of the North Wales Police v. Evans (1982) 1 W.L.R. 1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said:
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.
Lord Brightman observed:
...Judicial review, as the words-imply, is not an appeal from a decision, but a review of the manner in which the decision was made....
And held that it would be an error to think; "...that the court sits in judgment not only on the correctness of the decision - making process but also on the correctness of the decision itself."
Whether the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors.
17. Balakrishna Iyer, J. in the case reported in Umpathy v. Panchakshram Pillai has also laid down thus:
The jurisdiction of the High Court under Article 226 of the Constitution is a correctional one and the courts has a discretion to interfere with an order. Where it is clear that the authority whose order is sought to be impeached has applied its mind fairly, honestly and impartially and has reached a conclusion which is neither unjust nor improper, the High Court will be slow to interfere with such an order.
18. The learned Additional Government Pleader draw the attention of this Court to the provisions of the Forest (Conservation) Act, 1980 and in particular to Sec.2 of the Act which reads thus:
2. Northwithstanding anything contained in nay other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing;
(i) that any reserved forest (within the meaning of the expression "Reserved Forest" in any law for the time being in force in that State) or any portion therefore, shall cease to be reserved:
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees, which have grown naturally in that land portion for the purpose of using it for reafforesation.
Explanation : for the purpose of this section 'Non-forest purpose "means the breaking up or clearing of any forest land or portion thereof for:
(a) the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticultural crops or medical plants;
(b) any purpose other than reafforesation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of checkposts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water-holes, trench marks, boundary marks, pipe lines, or other like purposes
19. Admittedly, the land in question forms part of reserved forest. Though Mr. Sekar, learned Counsel for the petitioner sought to contend that there was an earlier order "D" reservation but factually there is no such order and the very proceedings relied upon by the learned Counsel for the petitioner makes it abundantly clear that the land in question still forms part of reserved forest and that being the position, Section 2 of the Forest (Conservation) Act, 1980, definitely bars the State Government from granting lease or using the forest land for non-forest purposes or assigning the land or granting lease of the forest land, either, to any private person or to any authority, corporation, agency or any other organisation. Thus the statutory embargo also bars the 1st respondent, State Government to renew the lease in favour of the petitioner. This Court sitting in Article 226 of the Constitution also cannot compel the respondent's or by issue of a writ of mandamus direct the respondents to violate the statutory provisions. Nor can the Court give a direction to the 1st respondent to refrain from enforcing the provisions of law. The Apex Court in State of Bihar v. Ramdeo Yadev has held that no mandamus would be issued directing the Government to disobey the law. It has been held thus:
It is equally settled law by decisions of this Court in J & K Public Service Commission v. Dr. Narinder Mohano that no mandamus would he issued directing the Government to disobey the law
20. In the present case, even if for any reason, the 1st respondent is to be directed to renew the lease, it would amount to direct the 1st respondent to violate the provisions of Forest (Conservation) Act, 1980. In Brij Mohan Parihan v. M.P. State Road Transport Corporation it has been held that no mandamus will be issued directing to do a thing forbidden by law. The Supreme Court has held thus.
The provisions of the Motor Vehicles Act and in particular Sections 42 and 59 clearly debar all holders of permits including the State Road Transport Corporation from indulging in unauthorised trafficking in permits. Therefore, the agreement entered in to by the petitioner, unemployed graduate, with the State Road Transport Corporation to ply his bus as nominee of the corporation on the route in respect of which the permit was issued in favour of the corporation for a period of five years, was clearly contrary to the Act and cannot, therefore, be enforced. In the circumstances, the petitioner would not be entitled to the issue of a writ in the nature of mandamus to the corporation to allow him to operate his motor vehicles as a stage carriage under the permit obtained by the corporation as its nominee.
Thus for the above reasons, this Court holds that the 1st respondent, State Government cannot be compelled to renew the lease in favour of the writ petitioner as prayed for by him.
21. Further, factually the lands had already been resumed by the Forests Department and possession is also with the Forest Department since 26.3.1996 as sworn to by the respondents. Further the lease period expired on 30.9.1995. The annual rental was just Rs. 56.25. It is a paltry sum. The contentions raised by the learned Counsel for the petitioner are devoid of merits and there is no illegality in the impugned proceedings nor it is vitiated by arbitrariness. The court had taken the view that the petitioner has no right to compel the respondents to renew the lease in his favour. This Court also accepts the plea of the respondents that the lands had already been resumed by the Forest Department and the possession is also with the Forest Department. The plea of estoppel raised by the petitioner is a factual misconception and cannot be but rejected as there is no basis at all for such a contention. Further no materials have been placed before the Court to hold that there has been representation on the part of the respondent based on which the petitioner could sustain the plea of estoppel.
22. The Forest Department resumed the land on 26.3.1996 and the land is now under the control of Forest Department. Further the Government of Tamil Nadu have decided to develop the reserved forest in Tirunelveli and Chidambaranar District into 'Nallai Wild Life Sanctuary' for the protection and conservation of wild Life and Flora. The policy decision taken by the first respondent is well in confirmity with the statutory provisions of the Forest (Conservation) Act, 1980. Therefore, no part of reserve forest can be leased out to any individual for his benefit like the writ petitioner. Therefore, the writ petitioner cannot compel the 1st respondent to renew the lease in his favour.
23. In the circumstances, there are no merits in the writ petition and the writ petition is dismissed with a costs of Rs. 2,000.