Madras High Court
Unknown vs (The Order Of The Court Was Made ... on 3 December, 2009
Bench: S.J.Mukhopadhaya, M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.12.2009 CORAM THE HON'BLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HON'BLE MR. JUSTICE M.DURAISWAMY W.P.Nos.10098 of 2008 and 2762 and 2839 of 2009 and M.P.Nos.1 and 2 of 2008 in W.P.No.10098 of 2008 and M.P.Nos.1 of 2009 in W.P.Nos.2762 and 2839 of 2009 ORDER
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(The Order of the Court was made S.J.Mukhopadhaya,J) As all the cases relate to the forest of the District of Nilgiris, and as in Writ Petition No.10098 of 2008, prayer has been made to direct the respondents to keep the corridor of the animal (Elephant Corridor) without any encroachment and any other disturbances, and two other Writ Petitions in W.P.Nos.2762 and 2839 of 2009 relate to the rights of the tribals and traditional forest dwellers who are residing in the forest of the District of Nilgiris, they were heard together to ensure that no conflict orders are passed.
2. On 30.9.2008 in W.P.No.10098 of 2008, this Court noticed that the State Government has taken some steps and letter dated 24.6.2008 was addressed by the Principal Chief Conservator of Forests and Chief Wildlife Warden to the Secretary to Government, Environment and Forests Department, Chennai, giving suggestions with regard to the Elephant Corridor. The State Government was directed to send a complete proposal to the Central Government with regard to the funds which are required for acquisition of land for development of the Elephant Corridor. On the basis of this proposal, the Central Government was directed to communicate its response to the State Government and to file an affidavit to that effect before this Court.
3. On 2.2.2009 in W.P.No.10098 of 2008, this Court directed the District Collector, Nilgiris to file status report showing the steps taken to remove all the encroachments from the Revenue land(s), which have been identified for development of the Elephant Corridor, pursuant to the Court's order dated 30.9.2008.
4. At that stage, W.P.Nos.2762 and 2839 of 2009 were preferred by the Scheduled Tribes and other traditional forest dwellers, claiming that they are residing in the Revenue lands for more than 50 to 100 years and had right to occupy the lands under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. In view of the stand taken by them, this Court, by order dated 13.2.2009, modified the earlier orders dated 30.9.2008 and 2.2.2009 passed in W.P.No.10098 of 2008 and directed the authorities concerned not to evict the Scheduled Tribes and other traditional forest dwellers and others, whose claims are pending and may have some right under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The State Level Monitoring Committee, which was constituted by the State under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, vide G.O.Ms.No.19, Adi Dravidar and Tribal Welfare (TD2) Department, dated 19.2.2008, was directed to look into the matter and submit its report to the State Government and also to file a copy to this Court.
5. On 8.4.2009, this Court ordered to main status quo with respect to the tribals and forest dwellers, who have been identified as occupying the Elephant Corridor, and allowed the State Government to proceed with the identification of the tribals and forest dwellers under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Central Act 2 of 2007), until the matter is further heard.
6. On 10.9.2009, the Collector of Nilgiris District along with the District Forest Officer (North), Ooty, appeared to assist this Court. It was informed that the Forest Department has an idea with regard to the Elephant Corridor in the District in question. The Collector further informed that to allow the elephants to pass through the Corridor, the unauthorised occupants are to be evicted. However, it was admitted that those who are tribals and traditional forest dwellers and are protected under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, their rights will be protected and they will not be evicted from the Corridor. It was also informed that certain portions of the land which belong to private individual may have to be acquired by the State Government to ensure that the Corridor is free from any outsiders, except the tribals or other forest dwellers. The Court, on 10.9.2009, on hearing the parties, observed as follows:
"4. After hearing the parties, prima facie, it appears that the following procedure may required to be followed:
(i) Forest department, which has the knowledge of movement of elephants in the corridor, may identify and inform the same;
(ii) the State Government may publish the information regarding the elephant corridor and the area, in leading newspapers and also by drum beating/tom tom, calling for objections of locals, if any, in the area in question;
(iii) after hearing the locals, particularly those who may be affected, they may finalise the elephant corridor from which unauthorised occupants are to be evicted;
(iv) to ensure that scheduled tribes and other forest traditional dwellers are not affected, it is required to identify the other traditional forest dwellers in terms with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Tribes) Rules, 2007; and
(v) only after the recommendation and recording their names in the appropriate register, they may proceed with eviction, by giving notice in the newspaper, by drum beating/tom tom and by giving individual notice to the unauthorised occupants.
5. So far as the acquisition of the land is concerned, if any private land is required to be acquired, they will have to follow the procedure under the Land Acquisition Act. Prima facie, as the tribals and other forest dwellers cannot be evicted from the unauthorised lands, their lands need not required to be acquired, if it is a forest land. Learned counsel for the parties are requested to give further suggestion in the matter, in the interest of public and elephants."
7. It appears that there has been a dispute with regard to the Elephant Corridor. It was informed by the District Collector, Nilgiris that he had verified the matter and prepared a map for the Elephant Corridor. This was opposed by the counsel appearing on behalf of the Scheduled Tribes and traditional forest dwellers. According to them, it is the Forest Department which is empowered to point out the Elephant Corridor to the State.
8. On 22.10.2009, the Principal Secretary of the Environment and Forest Department, the Principal Chief Conservator of Forest and Chief Wildlife Warden, the Principal Chief Conservator and Head of the Forest Department and the District Forest Officer, Nilgiris Northern Division, appeared in person to assist the Court. The matter was discussed and it was agreed upon by the officials that a team of experts of the Environment and Forests Department, may be constituted, which may include the Principal Chief Conservator of Forest and others. The said Committee will suggest the Elephant Corridor and submit a report after taking into consideration the different books published with regard to the Elephant Corridor, namely:
(a) Ecology of the Asian Elephant,
(b) The Asian Elephant in Southern India,
(c) A brief documentation of Elephant Corridors in South India,
(d) Acquisition/Transfer of sensitive areas for restoring/maintaining the sanctity of the Moyar Valley Elephant Corrider and Evaluation of the status, and
(e) Land use pattern and Habitat Utilization of Elephants in Corridors between Western Ghats and Eastern Ghats through Mudumalai Wildlife Sanctuary and National Park and Nilgiris, Tamil Nadu and they were asked to give reference of page numbers of the books in the said report.
9. The case was again taken up on 4.11.2009 when the Expert Committee submitted its report along with the field staff reports. Though certain maps have been enclosed showing the Elephant Corridor, no demarcation of the Elephant Corridor has been shown therein. The Secretary of the Environment and Forest Department, the Principal Chief Conservator of Forests and Chief Wildlife Warden, Chennai (Chairman of the Expert Committee), the Conservator of Forests, Ooty and the District Forest Officer, Nilgiris North Division, Ooty, who were present in the Court, submitted that a detailed map will be produced on the next date, showing the boundaries of the Elephant Corridor, as suggested by the Expert Committee and in the said map, the details of the Survey Numbers of the private lands, which may fall within the Elephant Corridor, were also directed to be given. The Court accordingly allowed the Expert Committee to file such map showing the boundaries of the Elephant Corridor. The Secretary of the Environment and Forest Department, in the meantime, was directed to place a copy of the report before the State Government along with the map, which will be prepared and produced on the next date. The State Government was also directed to state as to whether they intend to accept the report in its totality or with modification. On 4.11.2009, the following interim order was passed:
"4. During the pendency of the Writ Petitions, the respondents will ensure that no illegal construction is made in the area shown as Elephant Corridor in the report of the Expert Committee. Further, they should not allow any new construction in the area without prior intimation to the Court.
5. No person should be allowed to put a fresh solar/electrical fencing within the area as proposed to be Elephant Corridor by the Expert Committee.
6. So far as the existing solar/electrical fencing is concerned, the Court will hear and pass appropriate orders on the next date."
10. On 1.12.2009, learned counsel for the sixth respondent-The Hospitality Association of Mudumalai, in W.P.No.10098 of 2008, (intervenor in the said Writ Petition) submitted that there are resorts legally constructed, after permission, on the private forest area. It is not clear as to whether they will fall within the Elephant Corridor on the basis of the report of the Expert Committee of the State. According to him, the Central Government has already issued certain directions with regard to 88 Elephant Corridors of India and have prepared a map showing the proposed Elephant Corridor. It was suggested that the said proposal of the Elephant Corridor prepared by the Central Government, should be accepted. This was opposed by the learned counsel appearing for the State and according to him, it is the State Government which can decide as to what is the Elephant Corridor within their territory. Learned counsel appearing on behalf of the Central Government, submitted that it is the State Government which is to decide the Elephant Corridor. Taking into consideration the rival stand, on 1.12.2009, the State Government was directed to file an affidavit:
(i) giving the time by which they will approve the map of the Elephant Corridor on the basis of the Expert Committee's report,
(ii) what is their stand with regard to the Elephant Corridor map prepared by the Central Government,
(iii) the action which the State Government intends to take against illegal resort owners, who have constructed resorts in the forest lands or Elephant Corridor without permission of the Forest Department or other competent authorities,
(iv) what action the State Government intends to take with regard to the residents, who have erected solar fencing already, what is the specification prescribed for solar fencing, if any to be allowed and which authority can allow such erection of solar fencing.
11. On 2.12.2009, learned counsel appearing on behalf of the State produced a decision of the State, as contained in Letter No.2805/FR.5/2008, dated 2.12.2009, which reads as follows:
"2. As per the directions of the High Court, during the pendency of the writ petitions, the Government will ensure that no illegal construction is made in the area shown as Elephant Corridor in the report of the Expert Committee. Further, Government should not allow any new construction in the area without prior intimation to the Court. Further immediate action should be taken against illegal, unauthorised holiday resorts under relevant rules/laws.
3. No person should be allowed to put a fresh solar/electrical fencing within the area as proposed to be Elephant Corridor by the Expert Committee. Further action should be taken for the removal of existing unauthorised electrical/solar fencing.
4. In view of the above, I am directed to request you to comply with the above directions and send a report."
At that stage, learned counsel for the tribals and other traditional forest dwellers submitted that in the letter dated 2.12.2009, a vague direction has been given to take steps to remove the existing unauthorised electrical/solar fencing; according to the counsel for the Tribals and other traditional forest dwellers, there is no prescription made by the State for obtaining any permission for having electrical/solar fencing and therefore, it cannot be stated that as to which one is existing unauthorised electrical/solar fencing. The matters were adjourned for further hearing.
12. Learned counsel for the State submitted that the proposed map of the Elephant Corridor, on the basis of the report of the Expert Committee, has now been prepared. The publication will be made recently, calling for objections from the private land owners, whose lands fall within the proposed Elephant Corridor. Only on hearing them, finality will be given and thereafter, it will be decided as to whether the private lands will be acquired to enable the Elephants to pass through the Elephant Corridor without any obstruction, except those which belongs to Scheduled Tribes and other traditional forest dwellers.
13. Learned counsel Mr.Elephant Rajendran, appearing for the petitioner in W.P.No.10098 of 2008 referred to Tamil Nadu Private Forests (Assumption of Management) Act (LV of 1961) and it was suggested that under Section 3 therein, it is open for the State Government to take over the Management of the private forest.
14. Learned counsel appearing for the Scheduled Tribes and other traditional forest dwellers submitted that the solar power fencing which has already been erected, should not be removed, without giving proper opportunity to the parties.
15. It has been brought to the notice of the Court that the Government of India, from its Ministry of Environment and Forests, has issued two directions with regard to the Elephant Corridors. One, by Letter No.2-15/2002-PE, dated 11.8.2006 addressed to the Chief Wildlife Wardens (PE) of all the States and Union Territories, in which the Government of India has directed the individual States/Union Territories to identify the Elephant Corridor of their respective States and to nofify the Elephant Corridor to protect the Elephants, with a request to take action, if no such action has already been taken. The said letter dated 11.8.2006 reads as follows:
"Sub: Regarding Elephant corridors.
Sir, You may be aware that Wildlife Trust of India has published a book "Right of Passage--Elephant Corridors of India". In the book it has been mentioned that 88 elephant corridors have been identified with the help of State forest Department and NGOs.
It is necessary that elephant corridors are protected and conserved. It has been informed by CWLW, Uttaranchal that the State is in the process of notifying the elephant corridors in Uttaranchal. I am sure similar action must be under consideration in your State. It will also be necessary that the elephant corridors are provided with some legal protection like under EP Act. May I request to take necessary action if not already initiated, for notification and protection of the identified elephant corridors in your State. An Action Taken Report on the issue will be highly appreciated.
Yours faithfully, Sd/-
(A.N.Prasad) IGF & DIRECTOR (PE)."
By the other letter in No.2-2/04-PE, dated 11.11.2009, issued by the Government of India, from its Ministry of Environment and Forests, Project Elephant, addressed to the Chief Wildlife Wardens (of all PE States), a specific direction has been given to ensure that no solar power fencing is erected in future. It is also mentioned that wherever the deaths of elephants due to electrocution in such places have taken place, the management needs to be prosecuted for hunting and such fencing needs to be removed at once. The said letter dated 11.11.2009 is also quoted hereunder:
"SUB: Death of elephants by electrocution-reg.
Sir, The Ministry is receiving reports of deaths in tea/coffee estates especially in Assam and Karnataka due to unregulated voltage in the solar power fencing erected by them. This is a serious issue and in fact such an act tantamounts to wilful hunting as per Section 16(b) and thus is in violation of Section 9 of the Wildlife (Protection) Act, 1972.
2. You are, therefore, requested to make it known to all the tea gardens, coffee estates and others located in the elephant areas to ensure that no such fencings are created in future. Wherever deaths of elephants due to electrocution in such places have taken place, the management needs to be prosecuted for hunting and such fencing needs to be removed at once.
Yours faithfully, Sd/-
(A.N.Prasad), Inspector General of Forests and Director (Project Elephant)"
16. From the aforesaid directions of the Central Government, it would be evident that:
(i) even the Central Government has asked the State Governments to identify and notify the Elephant Corridor of their respective States, by giving protection to the elephants.
(ii) the authorities of all the State Governments have been directed to ensure that no solar power fencing is erected in future to ensure that no death of any animal including elephant, takes place.
17. Unregulated voltage in the solar power fencing, to the animals in general, particularly, within the forest area, is not only injurious to the wild animals, but fatal accident may cause to human beings, particularly, the staffs and officials of the Forest Department and other tribals and traditional forest dwellers, who are staying within the forest area.
18. In the above background, we have already issued a direction on 4.11.2009, directing the respondents to ensure that no fresh solar/electrical fencing is erected in future, and the said direction is hereby confirmed.
19. So far as the solar power fencing erected within the forest area, whether Government Forest or private forest, we are of the view that unregulated voltage solar power fencing cannot be allowed to be permitted. The State Government, in its letter dated 2.12.2009, has already directed the authorities to take further action for removal of existing unauthorised electrical/solar fencing. In the absence of any guidelines issued by the State Government in this regard, we are of the view that the following procedures should be followed for the present, to find out as to whether the existing solar power fencing should be removed or not:
(i) A notice should be published in the newspaper, asking the persons residing within the area to obtain post-facto approval of the solar power fencing, if already erected. The publication should be made in two local newspapers, one in English and another in vernacular Tamil and intimation should be given to all the local Panchayats so as to give information to the concerned persons. The time schedule of about one month should be given for obtaining such post-facto approval.
(ii) While asking for such post-facto approval, the persons should be asked to give the details of design and supply of the solar power fencing system already erected by them. They will specifically state as to what is the voltage used in the solar power fencing and how they regulate such voltage.
20. We have also noticed that the Government of Tamil Nadu, through its Forest Department, Tirunelveli Division, Tirunelveli, earlier issued a "Short Tender Notice" in 2006, and the tender documents were made available for sale in the Office of the District Forest Officer, Tirunelveli Division, Tirunelveli, upto 1.3.2006 and therein, the tenders were called for, for erection of solar fencing in the lower boundaries of Sivagiri RF of Sivagiri Range in Sivagiri Taluk during 2005-2006.
That means, the State Government has knowledge as to what should be the minimum criteria for erecting the solar power fencing and to find out the standards of the solar power fencing criteria, it is the criteria which the State Government has sanctioned for them. They will apply the same criteria with regard to the existing owners of the solar power fencing, who may apply for the post-facto approval.
21. If no application is filed within the time frame, on receipt of such application and taking into consideration the standards of solar power fencing, if any adverse decision is taken, the authorities will communicate such decision to such owners. All such solar power fencing should be treated to be unauthorised solar power fencing, which should be removed in terms of the decision of the Government, in its letter dated 2.12.2009.
22. So far as the publication of map for the Elephant Corridor is concerned, if the authorities have prepared or will finalise on the basis of the Expert Committee's Report, in terms of the earlier orders of this Court, we pass the following order:
(i) The State Government will have to decide as to which Elephant Corridor has to be identified, i.e. corridor identified by the Central Government in the letter dated 11.8.2006, with the help of the State Forest Department and NGOs, or the proposed Elephant Corridor as identified by the Expert Committee in the present cases, preferably within one month.
(ii) The publication of such map showing the Elephant Corridor, should be made by the State through the Forest Department, in two local newspapers, one in English and another in vernacular Tamil, giving the details of Survey Numbers of private lands which are falling within the proposed Elephant Corridor. The persons may be asked to submit their objections within a time frame, say one month.
(iii) The intimation of such proposed Elephant Corridor along with a copy of the report of the Expert Committee, should be also forwarded to each local Panchayats, which fall within the proposed Elephant Corridor, so that the local persons can have the knowledge of the corridor of their own, if they so choose.
(iv) No separate individual hearing is required to be given to any person, though a mass hearing may be given as generally given in the "Land Acquisition" cases and on hearing such objections, the proposed Elephant Corridor including the map containing the different Survey Numbers should be finalised and be also published at an early date, say maximum within six months.
(v) No individual or any Association generally should intervene in the case. If they have any objection, they may raise before the authorities concerned.
23. On such finalisation, it will be open for the State to decide:
(a) whether the private lands which are falling within the Elephant Corridor, do not belong to Scheduled Tribes and other traditional forest dwellers, who have a right under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and whether such lands should be acquired. If the decision is taken to acquire the lands, they will follow the regular procedures as laid down under the provisions of the Land Acquisition Act.
(b) If the State Government, in the meantime, wants to take over the management of the private forest, it may do so in terms of Section 3 of the Tamil Nadu Private Forests (Assumption of Management) Act (LV of 1961), so as to enable the elephants to pass through the corridor without any hindrance till the lands are acquired.
24. We make it clear that this Court has not decided the question as to who is a Scheduled Tribe or a traditional forest dweller, residing within the proposed Elephant Corridor. It is for the competent authorities who will decide the forest rights of such Scheduled Tribes and traditional forest dwellers, as conferred on them under Section 3 of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Till such claim is finalised, as under the provisions of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, they have a right to hold the lands in their possession, they be not evicted during the procedures and directions as given above, but for issuance of patta or certificate of title in their favour, the State Government is required to obtain permission from this Court, in view of the interim order dated 30.4.2008 passed by a Division Bench of this Court in M.P.No.1 of 2008 in W.P.No.4533 of 2008, wherein, the vires of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, are under challenge.
25. However, we further make it clear that the above order to remove the unauthorised solar fencing will equally be applicable to the tribals and other traditional forest dwellers.
26. So far as the unauthorised buidlings in the area in question, are concerned, this Court, by order dated 1.12.2009 in W.P.Nos.32747 of 2007 and 28693 of 2008, has already issued directions to remove the unauthorised constructions. Hence, in respect of all the unauthorised constructions made within the District of Nilgiris, which includes the unauthorised constructions if any made on the private lands, private forest lands, Government lands, Government Forest lands, the District Collector, Nilgiris, will ensure removal of such illegal constructions in terms of the order dated 1.12.2009 already passed in W.P.Nos.32747 of 2007 and 28693 of 2008.
27. Further, we also make it clear that in the forest areas, if there is any unauthorised commercial buildings, as may be found by the Forest Department, including the resorts, and if it is found that some of the buildings are used for commercial purposes, such as resorts, resort houses, etc., and if they have been given electricity connection as residential houses, the Tamil Nadu Electricity Board will ensure disconnection of power supply to such premises.
28. We adjourn the case for a month with a direction to the respondents-authorities of the State (Forest Department) to submit a report with regard to the publication of the proposed Elephant Corridor and the other steps as may be taken for removal of unauthorised solar power fencing, by the next date.
29. Post the matters under the caption "For Orders" on 7.1.2010 at 2.30 p.m.
30. Let a copy of this order be handed over to the learned counsel appearing for the parties.
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Let a copy of this order be handed over to the learned counsel appearing for the parties.
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