Madras High Court
The State Of Tamil Nadu vs M/S.K.K.M.Road Construction (Hot Mix ... on 15 October, 2012
Author: T.S.Sivagnanam
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15.10.2012
Coram:
The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE
and
The Honourable Mr.Justice T.S.SIVAGNANAM
Writ Appeal Nos.1375, 1376, 1650 to 1653,
2024 to 2036, 2037 to 2090 of 2012
---------
W.A.No.1375 of 2012
1.The State of Tamil Nadu,
Rep. by its Secretary,
Environment and Forests Department,
Fort St. George, Chennai 9.
2.District Forest Officer,
Chengalpattu Division,
Kancheepuram District.
3.The Forest Range Officer,
Tambaram Range, Tambaram,
Chennai - 45. .... Appellants
vs.
M/s.K.K.M.Road Construction (Hot Mix Plant)
Rep. by its Mr.K.K.Malaiyappan, Partner
Nallampakkam, Oonamancheri village,
Vandalur, Kancheepuram District. .... Respondent
Appeal filed under Clause 15 of the Letters Patent against the common order passed in W.P.No.14438 of 2009, dated 15.10.2009 on the file of this Court.
For Appellants ::: Mr.M.K.Subramaniam Spl. G.P. (Forest)
in all W.As.
For Respondents ::: Mr.A.L.Somayajee Sr.Counsel for
Mr.V.P.Senguttuvel
Mr.N.Adaikala Arockiaraj in
W.A.Nos.2037 to 2048 of 2012
C O M M O N J U D G M E N T
The Hon'ble The Chief Justice & T.S.Sivagnanam, J These appeals are directed against the common judgment and order passed in a batch of writ petitions filed by the respondents herein.
2. The prayer in the writ petition was to issue a writ of prohibition to prohibit the appellants from in any manner preventing free vehicular movement and access of the respondents/writ petitioners to their patta lands in Oonamanchey village, Chengalpattu Taluk, Kancheepuram District, by using the land in survey No.181, Venkambakkam village, Tambaram Taluk, which is a forest land.
3. Since identical relief has been sought for in all the writ petitions and since a common counter affidavit was filed by the appellant/respondents, we refer to the facts in W.P.No.14438 of 2009. According to the respondent/writ petitioner, they are carrying on business in Civil Engineering Contract and having their tar plant and crusher unit in their patta lands comprised in survey Nos.471/7 in Oonamanchey village, Chengalpattu Taluk and carrying on business for several years. It is stated that they are operating their tar plant after obtaining requisite statutory clearances. It is stated that for the required materials to reach the plant and crusher unit from several places through road, a stretch of land passes through survey No.181, Venkambakkam village, Tambaram Taluk, which belongs to the Forest Department and for more than 60 to 90 years, the villagers are using the said road. Further, there are several other crushing units located nearby and they are also using the very same road for their vehicular movement. It is asserted that this is the only approach road for the writ petitioner as well as the villagers and the Collector of Kancheepuram District, by letter dated 16.04.2009, stated that except the mud road in forest land in survey No.181, there is no other approach road for connecting Vandalur Kelambakkam road. The respondent/writ petitioner would further submit that recently the second and third appellants namely the Forest Department have been making attempts to cut off any usage of this road for vehicular traffic on the ground that the road is on the land which belongs to the Forest Department. It is further stated that there is no forest, in any of these lands and there is not even a single tree in any of those parts which the Forest Department claims to be in its control. Though the writ petitioner submitted representation to the Principal Chief Conservator of Forest and the District Collector, Kancheepuram, the same were not considered, which prompted the writ petitioner to approach this Court by way of the writ petition for the aforementioned relief.
4. The District Forest Officer, Chengalpattu Division in his counter affidavit submitted that the respondents/writ petitioners themselves have accepted that the land in survey No.181 of Venkambakkam village belongs to the Forest Department and further the Unamanchery Forest block was declared as a reserve forest by notification in G.O.Ms.No.55, dated 30.06.1890, and in the said notification many right of way has already been granted for use of public for their convenience and the writ petitioners are using that part of reserve forest over which they have no "right of way". It is further submitted that any trespass or vehicular movement by any one through part of the reserve forest amounts to violation of Tamil Nadu Forest Act, 1882, and Forest (Conservation) Act.1980. Any diversion of usage of reserve forest without sanction of the appropriate authority severely dents the spirit of the judgment of the Supreme Court in W.P.No.202 of 1995, in which the Supreme Court has emphasised the ecological importance of forests, broadened the definition of the Forest and taken serious note of any illegal diversion of the forest land. It is further submitted that the officials of the Forest Department were actually preventing the commission of offence of trespass by the respondents/writ petitioners over the reserve forest. It is submitted that the Forest Department has no objection, if the respondents/writ petitioners use several pathway over which right of way has been legally granted in the notification dated 30.06.1890. Further, it is submitted that under the Forest (Conservation) Act 1980, any part of the reserve forest can be diverted for non forestry purpose after a detailed proposal, scrutiny and after imposing conditions by the appropriate authority, which in most cases is the Government of India. Therefore, unless the respondents/writ petitioners have the requisite sanction, they are not entitled to use the reserve forest.
5. The learned Single Judge after hearing the parties disposed of the writ petition by common order dated 15.10.2009. In the said order, certain directions have been issued. For better appreciation paragraph 3 of the order is quoted below:-
3.In view of the above stated position, by consent, I am inclining to pass the following order:-
(i) The petitioners are directed to send representations to the District Collector concerned with a request to him to give a certificate that except the pathway which is being used by them there is no other pathway available to them to reach their patta property. The said representations shall be sent by the petitioners within two weeks from the date of receipt of a copy of this order.
(ii) On receipt of the same, the District Collector concerned shall, on verification, grant a certificate to the effect that except the pathway which is being used by the petitioners, there is no other pathway available to them to reach their patta property.
(iii) If for some reasons, if the District Collector finds that there is an existence of another pathway for the petitioners to reach their property, he is also directed to provide such certificate.
(iv) On receipt of the certificates from the District Collector concerned showing that there is no other pathway for the petitioners to reach their patta property, the same shall be sent by the petitioners along with other documents to the District Forest Officer, within two weeks from the date of receipt of the report from the District Collector concerned.
(v) On receipt of said proposal from the petitioners along with certificates and other documents, the District Forest Officer is directed to send the same to the Principal Chief Conservator of Forests within two weeks from thereafter.
(vi) The said officer is directed to send the same to the Secretary to Government, Forest Department within two weeks thereafter. He, in turn, is directed to send all the papers to the Central Government for approval. It is open to the Secretary, Ministry of Environment to pass orders as expeditiously as possible.
(vii) Till the orders are passed by the Secretary, Ministry of Environment, the petitioners shall not be prevented by the officials of the Forest Department for using the pathway or for free vehicular movement and access to their patta land.
(viii) If any of the petitioners fails to obtain a certificate from the District Collector concerned showing that there is no other pathway, it is open to the respondents to take appropriate action against such petitioners.
6. The appellants being aggrieved by the above order have filed these appeals.
7. Mr.M.K.Subramanian, learned Special Government Pleader (Forest cases) submitted that the writ Court ought to have taken into consideration that the land used by the respondents/writ petitioners falls within the reserve forest and without obtaining appropriate permission under the provisions of the Act, forest land cannot be diverted for any other purposes. It is further submitted that there is no proposal submitted by the respondents/writ petitioners for diversion of forest lands under the provisions of the Act and in the absence of any permission from Government of India, the respondents/writ petitioners cannot use the forest land for non forestry purpose. It is further submitted that while disposing of the writ petitions, no time frame was fixed for the District Collector, Kancheepuram, to consider the representations of the respondents/writ petitioners, which has led to using the reserve forest area for non forestry purpose.
8. Mr.A.L.Somayajee, learned Senior counsel appearing for Mr.V.P.Senguttuvel, learned counsel for the respondents/writ petitioners submitted that these appeals are not maintainable, since the order was a consent order passed after hearing the learned Advocate General appearing for the State and the learned Single Judge has issued several directions, which are in consonance with the procedure prescribed under the Forest (Conservation) Rules, and therefore, there is no error in the order passed in the writ petitions.
9. We have heard the learned counsels appearing for the parties and perused the materials available on record.
10. As noticed above, the order, which is subject of these appeals, appears to be an order passed with the consent of both parties. Therefore under normal circumstances an appeal against such order is not maintainable, more so when the appellants in their memorandum of grounds of writ appeal have not specifically stated that the appellants did not consent for such order, yet we have examined the contention raised by the appellants. The case of the respondents/writ petitioners is that the Forest land has been used by the respondents/writ petitioners and the villagers for over 60 years and reliance has been placed on a letter written by the District Collector, Kancheepuram, dated 16.04.2009, that except the mud road in forest land in survey No.181, Venkambakkam village, there is no other approach road connecting Vandalur-Kelambakkam road. These contentions raised by the respondents/writ petitioners have not been denied by the appellants in their counter affidavit filed in their writ petitions.
11. In terms of Section 2 of the Forest (Conservation) Act, 1890, there is a restriction on the reservation of forest or use of forest land for non forest purpose. As per the said provision notwithstanding anything contained in any 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 that any reserved forest shall cease to be reserved; any forest land may be used for any non forest purpose; any forest land may be assigned by way of lease to any private person or to authority, corporation, etc.; and any forest land may be cleared of trees which have grown naturally in that land, for the purpose of using it for de-forestation. The explanation contained in Section 2 defines what is non forest purpose. Thus, in terms of the said provision, there appears to be an embargo on the use of forest land for non forest purpose except with the approval of the Central Government.
12. Rule 6 of the Forest Conservation Rules deals with submission of proposals seeking approval of the Central Government under Section 2 of the Act, and has provided a procedure to be followed for obtaining permission to use any forest land for non-forestry purpose. After having gone through Rule 6 of the said Rules and the directions issued by the learned single Judge, as quoted, it appears that the directions are in consonance with the procedure stipulated under Rule 6 of the said Rules.
13. The grievance of the appellant appears to be that no time limit has been prescribed for the District Collector, Kancheepuram to take action on the representations given by the respondents/writ petitioners and pending approval by the appropriate authority, the respondents/writ petitioners have been allowed to use the forest land for free vehicular movement and access to their patta land. There can be no difficulty for fixing a time limit within which the concerned District Collectors should dispose of the representations of the respondents/writ petitioners.
14. On the second aspect that till the appropriate authority under the Act passes an order, the respondents/writ petitioners have been permitted to use the pathway for vehicular movement and access to their patta land, it is to be noted that the respondents/writ petitioners specifically asserted that the villagers and the respondents/writ petitioners were using the forest land for over 60 years to reach their patta lands. This averment has not been denied by the appellants in their counter affidavit. The fact that the stretch of the forest land has been used for more than 60 years as pathway having not been denied by the appellants/State, prima facie we are of the view that the State cannot be allowed to say that the said road cannot be used without the permission of the authority as contemplated under the Forest Conservation Act, 1980. Hence, while considering the application for grant of permission, the authority shall consider this aspect of the matter also. Reference may be made to the decision of the Supreme Court in the case of State of Bihar vs. Banshi Ram Modi reported in (1985) 3 S.C.C. 643.
15. In the facts and circumstances of the case, we find no error in paragraph 3(vii) of the order passed by the learned single Judge. It is needless to state that if the respondents/writ petitioners attempted to use the forest land for any other purpose other than for vehicular movement and access to their patta land, it would be well within the powers of the appellants to take action against such of those persons, who use the forest land for any purposes other than what has been authorised in the order passed in the writ petition. For such purpose, it would be open to the appellants to have check points en route so as to prevent any person from violating the order.
16. For all the above reasons, we are not inclined to interfere with the order passed in the writ petitions except for a slight modification by directing the District Collector concerned to consider the representations submitted by the respondents/writ petitioners, within a period of four weeks from the date of receipt of such representations and comply with the other directions contained in paragraphs 3(ii) and (iii) of the order passed in the writ petitions.
17. In view of the above order, though some of the respondents/writ petitioners have not been served, since we have confirmed the order passed in the writ petition with a slight modification, there would be no necessity to serve notices on the other respondents/writ petitioners.
18. In the result, the writ appeals are disposed of with the above directions. No costs. Consequently, the connected miscellaneous petitions are closed.
(M.Y.E., C.J) (T.S.S., J) 15th, October, 2012 pbn Index : Yes Internet: Yes The Hon'ble Chief Justice and T.S.Sivagnanam, J ------------------------------------ pbn Order in Writ Appeal Nos.1375, 1376, 1650 to 1653, 2024 to 2036, 2037 to 2090 of 2012 15th , October, 2012