Madras High Court
Eldho Kuruvilla vs The State Of Tamil Nadu on 1 November, 2018
Author: M.M.Sundresh
Bench: M.M.Sundresh
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.[MD].Nos.6683 and 7161 of 2010
and
M.P.(MD).Nos.1, 2, 1, 2 of 2010, 1 of 2013 and 1 of 2015
Eldho Kuruvilla
Authorized Signatory,
Koodamparai Estate,
Meghamalai Post, Theni District 625 515.
: Petitioner in W.P.(MD).No.6683 of 2010
Jose J.Palathinkal : Petitioner in W.P.(MD).No.7161 of 2010
Vs.
1.The State of Tamil Nadu,
Rep by the Secretary to Government,
Environment and Forests [FR14] Department,
Secretariat, Chennai 9.
2.The Principal Chief Conservator of Forests,
http://www.judis.nic.in
2
1, Jeenis Road, Panagal Building,
Saidapet, Chennai 15.
3.The Commissioner of Land
Revenue & Administration,
Ezhilagam, Chepauk, Chennai 5.
4.The District Collector,
Theni District, Theni.
5.The Forest Settlement Officer,
Andipatti.
6.The District Forest Officer,
Theni Forest Division, Theni.
7.The Forest Range Officer,
Meghamalai Range, Andipatti.
: Respondents in W.P.(MD).No.6683 of 2010
1.The State of Tamil Nadu,
Rep by the Secretary to Government,
Environment and Forests [FR14] Department,
Secretariat, Chennai 9.
2.The Principal Chief Conservator of Forests,
1, Jeenis Road, Panagal Building,
Saidapet, Chennai 15.
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3.The District Collector,
Theni District, Theni.
4.The Forest Settlement Officer,
Andipatti.
5.The District Forest Officer,
Theni Forest Division, Theni.
6.The Forest Range Officer,
Meghamalai Range, Andipatti.
: Respondents in W.P.(MD).No.7161 of 2010
PRAYER IN W.P.(MD).No.6683 of 2010 : Writ Petition is filed under
Article 226 of the Constitution of India to issue a Writ of Certiorari on
the file of the first respondent in connection with the Notification
issued in Tamil Nadu Government Gazette No.46, dated 25.11.2009 in
G.O.Ms.No.118, Environment & Forest [FR-14], dated 09.09.2009 in
No.II(2) EF/611/2009 and quash the same.
PRAYER IN W.P.(MD).No.7161 of 2010 : Writ Petition is filed under
Article 226 of the Constitution of India to issue a Writ of Certiorari on
the file of the first respondent in connection with the Notification
issued in Tamil Nadu Government Gazette No.46, dated 25.11.2009 in
G.O.Ms.No.118, Environment & Forest [FR-14], dated 09.09.2009 in
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No.II(2) EF/611/2009 in respect of Right No.4, Pathway leading to
Ammagajam Estate Patta lands [S.No.360 etc] - width of 1 [one] metre
and quash the same.
For petitioners : Mr.R.Singaravelan
Senior Counsel
For Mr.D.Selvanayagam
For respondents : Mr.K.Chellapandian
Additional Advocate General
Assisted by Mr.N.Shanmugaselvam
Additional Government Pleader
COMMON ORDER
******************** [Order of the Court was made by M.M.SUNDRESH, J.] The petitioners herein are owning private estates. They were given right to use the pathway by the orders of the Forest Settlement Officer dated 08.01.1997. There was an earlier proceedings, by which this Court was pleased to hold that a Subordinate Officer has got no role to deal with such an order passed by a Higher Officer. However, liberty was given to the Higher Officer to take action in accordance with law, after due notice to the parties concerned.
2. A notification was issued under Section 4 of the Tamil Nadu Forest Act, 1882, [for brevity, "the Act"] proposing to reserve the http://www.judis.nic.in 5 entire forest as a reserved forest. Pursuant to the said notification, a proclamation was made by the Forest Settlement Officer. Section 10 of the Act speaks about the claim of rights of occupancy and ownership. After crossing over the proceedings contemplated under Sections 11 to 15 of the Act, a notification was issued, declaring the forest as a reserved forest. The above notification states about the rights of the petitioners to use the pathway leading to Ammakajam and Koodamparai Estates with a width of one metre. The petitioners challenged the notification issued under Section 16 of the Act, inter alia alleging that the pathway is actually for three metres, as per the proceedings of the Forest Settlement Officer, Usilampatti, dated 08.01.1997. Based on the aforesaid factual premise, the petitioners, without making any claim under Section 10 of the Act, have approached this Court by filing these Writ Petitions.
3. Mr.R.Singaravelan, learned Senior Counsel, representing Mr.D.Selvanayagam, learned counsel on record for the petitioners, would submit that the proceedings dated 08.01.1997 is for three metres width. There is a pathway, which is in existence for more than 100 years. The order passed by the Division Bench, on an earlier occasion, has not been taken note of. The petitioners have not been http://www.judis.nic.in 6 put on notice, before the issuance of impugned notification. This Court has to balance the public interest as well as the private interest. The petitioners have given representations to the Government on 19.04.2010 and therefore, appropriate orders will have to be passed by directing the Government to look into the grievance of the petitioners and till such time, they will have to be permitted to use three metres pathway.
4. Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.N.Shanmugaselvam, learned Additional Government Pleader for the respondents, would submit that the contention of the learned Senior Counsel on the existence of pathway as three metres is disputed. What is permitted is only one metre. Though it is only a license to use the pathway, this has been recognized in the impugned notification. In any case, the petitioners, without making any claim under Section 10 of the Act, cannot approach this Court by filing these Writ Petitions, challenging the impugned notification issued under Section 16 of the Act. Much water has flown under the bridge. Subsequently, by G.O.(Ms).No.169, Environment and Forest [FR.Spl.B] Department, dated 29.11.2011, Meghamalai Wildlife Sanctuary has been formed and therefore, expanding the width from http://www.judis.nic.in 7 one metre to three metres would result in destruction of forest in its entirety. Now, there is a proposal to declare the entire forest as "Tiger Sanctuary". Therefore, even the Government may not have the power to consider the request of the petitioners. In any case, the provisions of the Act would take away all existing rights in a single sweep. Thus, according to the learned Additional Advocate General, the Writ Petitions will have to be dismissed.
5. We have considered the above submissions made by the learned counsel on either side and perused the materials available on record.
6. Firstly, we will consider the submission made by the learned Senior Counsel for the petitioners on the existence of pathway as to whether it is three metres width or more. In any case, it cannot be one metre. Now, this contention has been specifically disputed in the counter affidavit filed by the fifth respondent. According to the fifth respondent, this is only one metre. We have perused the notification dated 08.01.1997. While it speaks about the length, it does not speak about the width. We are dealing with a case of recognizing the existing pathway. For making the position clear, we are inclined to http://www.judis.nic.in 8 state that we are not dealing with any road, but, only a pathway, which is alone in existence. To that extent, the Judgment of the Division Bench will have to be understood. Even the Division Bench has not stated anything beyond that. It merely states that a Subordinate Officer cannot interpret or go into the validity of the order of the Higher Authority. Further, the order of the Division Bench also states that the Higher Authority can take a further decision, after due notice to the petitioners concerned. The order dated 08.01.1997 has to be taken as a mere permission and nothing beyond that. In any case, once a notification was issued and came into force, all other existing rights would get vanished. Fortunately, in respect of the petitioners, the respondents have shown benevolence in keeping one metre pathway. There cannot be a better way of destroying a forest than creating, permitting and recognizing a road.
7. Coming to the provisions of the Act, there is no need to issue notices to various parties. On the contrary, a claim has to be made by a person and such a claim will have to be adjudicated upon by the Forest Settlement Officer. Now, we are at the stage of a notification declaring the forest as reserved forest. Therefore, the petitioner,s having not made any claim before the Forest Settlement Officer, http://www.judis.nic.in 9 cannot come before this Court challenging the notification issued under Section 16 of the Act on the premise that what has been given is only one metre width of pathway, which, as we have already stated above, can at best constitute a disputed question of fact. The same analogy will go the issue qua extent than the one granted.
8. The learned Senior Counsel for the petitioners would fervently contend that the request made by the petitioners will have to be considered by the Government. We are afraid that even the Government may not have the jurisdiction to consider the request of the petitioners. Once a forest is declared as a reserved forest, the Government is not supposed to touch the same, after the notification has come into force. That is why, the District Forest Settlement Officer has been assigned with the right of adjudicating upon the claim. We are conscious of the fact that after the aforesaid order was passed, the Government has declared it as Sanctuary, by name, Megamalai Wildlife Sanctuary. Now, there is a proposal to make it as "Tiger Reserve Forest", which might be the fifth Tiger Reserve Forest in the State. Therefore, looking from any perspective, we are of the view that the request made by the petitioners before the Government cannot be directed to be considered by this Court. We are also http://www.judis.nic.in 10 conscious of the fact that it will only pave way for the destruction of the forest area. At best, we would only say that the officials are expected to recognize the existing pathway. After all, between the public interest and the private interest, the earlier one will have to be given priority. We are dealing with a situation, wherein already 60% of the wildlife has vanished from 1970 onwards. This Court can never pass an order leading to the destruction of the forest, at the instance of persons, who are seeking to espouse their private interest.
9. In such view of the matter, the Writ Petitions are dismissed making it clear that what has been conferred under the notification would stand and therefore, the petitioners are entitled to use one metre pathway. No costs. Consequently, connected Miscellaneous Petitions are closed.
[M.M.S.J.,] & [N.S.K.J.,]
01.11.2018
Index : Yes/No
Internet : Yes/No
NB
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To
1.The Secretary to Government,
Environment and Forests [FR14] Department, Secretariat, Chennai 9.
2.The Principal Chief Conservator of Forests, 1, Jeenis Road, Panagal Building, Saidapet, Chennai 15.
3.The Commissioner of Land Revenue & Administration, Ezhilagam, Chepauk, Chennai 5.
4.The District Collector, Theni District, Theni.
5.The Forest Settlement Officer, Andipatti.
6.The District Forest Officer, Theni Forest Division, Theni.
7.The Forest Range Officer, Meghamalai Range, Andipatti.
http://www.judis.nic.in 12 M.M.SUNDRESH, J.
AND N.SATHISH KUMAR, J.
NB COMMON ORDER MADE IN W.P.[MD].Nos.6683 and 7161 of 2010 01.11.2018 http://www.judis.nic.in