Madras High Court
C. Sankareswaran And R. Arunagiri vs The Commissioner, Land Ceiling And Land ... on 5 December, 2006
Author: D. Murugesan
Bench: D. Murugesan, P. Murgesen
ORDER D. Murugesan, J.
1. The petitioner in W.P.No.3536 of 2005 is the former Chairman and the petitioner in W.P.No.943 of 2006 is the present Chairman of Bodinaickkanur Municipality. They have approached this Court with the above writ petitions as pro bono publico seeking for a direction forbearing the respondents from granting the pattas in respect of the lands in Survey Nos.1079/1B, 1110/2, 1113/1B, 1185/1B, 1195, 1197, 1186 and in Survey Nos.1079, 1185, 1186, 1195, 1197 in Kottagudi village, Bodinayakkanoor Taluk, Theni District acquired under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to any person.
2. The writ petitions have been filed basically with the following averments:
Bodinaickkanur is a municipal town in Theni District and there are about one lakh people residing within the limits of Bodinaickkanur Municipality. The source of drinking water for the Bodinaickkanur town is Kottagudi river situate in the hills of top station panchayat 6000 feet above the Western Ghat in the border of Kerala State. The catchment area is the vast extent of forest land. The water gathered in Kottagudi river is stored at Kurangini and channelised through the pipeline for supply of drinking water to the town. As the respondents are contemplating to issue pattas in the lands in question to various individuals, the petitioners are constrained to approach this Court with the writ petitions.
3. Counter affidavits of the District Forest Officer, Theni District and the Commissioner of Land Reforms and the Assistant Commissioner of Land Reforms are filed.
4. We have heard Mr. M. Ajmal Khan, learned Counsel appearing for the petitioner in W.P. No. 3536 of 2005 and Mr. A. Rahul, learned Counsel appearing for the petitioner in W.P.No.943 of 2006, Mr. R. Janakiramulu, the learned Special Government Pleader for the State, Mr. P.T.S. Narendravasan, the learned Counsel appearing for the Municipality and Mr. R. Vijayakumar, the learned Counsel appearing for the impleaded respondents.
5. An extent of 624.32 acres of land in Kottagudi village, Bodinaickkanur taluk owned by M/s Tata Tea Private Limited, Kerala State was declared surplus and the said lands were acquired by the Government of Tamil Nadu by issuance of notification in G.O.Ms.No.584, Revenue (L.R1.2) dated 1.12.2003 under Section 18(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961. Though the said company owned the said lands, it did not use the lands for tea plantation or for any agricultural or other purposes considering the fact that the lands are situate at a height of 6000 feet in the Western Ghat surrounded by thick forest. Though a major extent of the land is covered by forest trees, a small extent of land is lying vacant. It appears that the adjoining lands in Survey Nos.118-B were also notified as reserve forest under the Tamil Nadu Forest Act. In order to preserve the ecology and environment of the area, even the Government had not put the land into use for any other agricultural purpose.
6. In the counter affidavit of the Assistant Commissioner of Land Reforms, Madras it is stated that immediately after the acquisition, the Government decided to assign the said land to eligible persons and the notices were issued in Form-B inviting applications in Form-C of the Act on 9.2.2004. About 269 applications were received, out of which 185 applications were found to be eligible and the orders of assignment were issued on 18.2.2005 assigning 2.5 acres of land to each of the eligible persons. It is the contention of the Assistant Commissioner of Land Reforms, who inspected the lands along with the field staff, that the lands are lying vacant and even though the entire area is located in the hill track, there are no valuable trees in the surplus area, except in some area in Shola forest.
7. In the counter affidavit of the District Forest Officer, Theni Division, it is stated that the land in question lies in Kottagudi hills and there are many brooks and streams from which drinking water flows to the main river namely, the Kottagudi river. The status of the land is that of a forest, as it has good vegetation including spontaneous growth and it is the natural habitation for the wild animals. He has also stated that permission for any such alteration in the area will lead to serve disruption of the habitat leading to the migration of the wild animals to other States like Kerala, besides the water courses would be severely affected. He has further stated that the supply of drinking water to Bodinaickkanur Municipality will suffer, if the land is allotted for non-forestry purpose. He has stressed that, above all, the land should be preserved to maintain ecological balance in the region since the land is located in the fragile Kottagudi water shed area. He has also stated that the land is classified as AWD and the land is under the control of Revenue Department. Hence necessary proposals have already been sent to the Government for declaration of Kottagudi hills as reserve forest under Section 16 of the Tamil Nadu Forest Act, 1882 and the proposals are under the active consideration of the Government.
8. In view of the above stand taken in the counter affidavits, it has to be now considered whether the land in question can be assigned and patta could be granted to put in use for agricultural purpose. The consciousness for environmental protection came up for consideration before the Supreme Court in the judgment in Rural Litigation and Entitlement Kendra and Ors. v. Devaki Nandan Pandey 1986 (Supp) SCC 517. In that judgment, the Supreme Court was considering a case of quarrying operation of limestone in the Mussoorie Hills. The grant of licence to quarry was questioned on the ground that such grant would adversely affect the ecology of the area and will lead to environmental disturbances. The quarry is just at the bottom of the Himalayan range on the northern boundary of India. Considering the fact that the Himalayas are the source for perennial rivers like the Ganges, Yamuna and Brahmaputra as also several other tributaries which have joined the main rivers and the Himalayas has been the storehouse of herbs, shrubs and plants, the Supreme Court has observed in paragraph 19 as follows:
Consciousness for environmental protection is of recent origin. The United Nations Conference on World Environment held in Stockholm in June 1972 and the follow-up action thereafter is spreading the awareness. Over thousands of years men had been successfully exploiting the ecological system for his sustenance but with the growth of population the demand for land has increased and forest growth has been and is being cut down and man has started encroaching upon Nature at its assets. Scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. The consequences of such interference with ecology and environment have now come to be realised. It is necessary that the Himalayas and the forest growth on the mountain range should be left uninterfered with so that there may be sufficient quantity of rain. The top soil may be preserved without being eroded and the natural setting of the area may remain intact....
We are not oblivious of the fact that natural resources has got to be tapped for the purposes of social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious way; there may not be any depletion of water resources and long-term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.
9. The need for protection of the environment again came up for consideration before the Supreme Court in the judgment in Indian Council for Enviro-Legal Action v. Union of India and Ors. , wherein the Supreme Court has held in paragraph 31 as follows:
While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.
In the same judgment, the Supreme Court has also broadlined the role of the judiciary in paragraphs 41 & 42, which read as follows:
With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.
As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the court dealing with such issues to know about the local conditions. Such conditions in different parts of the country are supposed to be better known to the High Courts. The High Courts would be in a better position to ascertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology.
10. The very same issue again came up for consideration before the Supreme Court in the judgment in M.C. Mehta v. Kamal Nath and Ors. , wherein the Supreme Court propounded a theory known as "Public Trust Theory". While reiterating the obligation of the State to maintain the natural resources, the Supreme Court in paragraphs 25 and 34 has held as follows:
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The Doctrine enjoins upon the Government to protect the resources for the enjoyment of general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on the Governmental authority:
Three types of restrictions on the Governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
11. In the judgment in Hinch Lal Tiwari v. Kamala Devi and Ors. , the Supreme Court has held in paragraph 13 as follows:
It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc., are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e., Respondents 11 to 13, having noticed that a good is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.
12. In the recent judgment in T.N. Godavarman Thirumulpad v. Union of India and Ors. , the Supreme Court in paragraphs 86 & 87 has observed as follows:
The national development agenda must recognise the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment.
It is recognised that the sustainable use of biodiversity is fundamental to ecological sustainability. The loss of biodiversity stems from destruction of the habitat, extension of agriculture, filling up of wetlands, conversion of rich biodiversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of ecosystems, biodiversity and environment whether examined on common-law principle or statutory principle or constitutional principle, eyeing from any angle, it is clearly a national issue to be tackled at the national level. All initiatives are required to be seriously pursued.
13. From the rival averments made in the counter affidavits of the Assistant Commissioner of Land Reforms, Madras as well as the District Forest Officer, Theni Division, it is seen that the land in question lies in the midst of Kottagudi hills. There are many brooks and streams from which drinking water flows to the main river namely, Kottagudi river. It is the specific stand of the District Forest Officer that considering the status of the land which has good potential for vegetation including spontaneous growth and it is the natural habitation for the wild animals, already proposals have been forwarded to the Government for declaration of the entire Kottagudi hills as reserve forest. It appears from the counter affidavit of the Assistant Commissioner of Land Reforms, Madras that the land has not been so far put in use for any agricultural purpose and by such use, the ecological balance of the forest hill is not in any way affected.
14. The Central Government keeping in mind deforestation, which causes ecological imbalance and leads to environmental deterioration, had brought up the Forest (Conservation) Act, 1980 to check further deforestation. The said Act applies to any forest land irrespective of the fact that it has been declared as reserve forest area. Equally it applies to any unutilised land, which lies in the midst of a forest.
15. In this context, it must be seen that the word "forest" shall generally mean such of those lands which are also in the midst of either the forest or reserve forest, as the case may be, and any restricted meaning would not be in the interest of maintaining ecological balance of the hills. The question as to whether it is utilised for any agricultural purpose or left vacant is not the criteria for determining the issue in question. To our mind, forest means a parcel of land on which trees have been grown. A forest is best defined as an ecosystem or assemblage of ecosystem dominated by trees and other woody vegetations. Moreover, a legal definition is different from an ecological definition. The perspective of the economist differs from that of a geographer. But all definitions stress the importance of trees in the ecosystem. That apart, considering the need to protect the wild animals, the Central Government also had brought the Wild Life (Protection) Act, 1972 to provide for the protection of wild animals, birds, plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. To give effect to the said Act, protection of wild animals in the Kottagudi hills should be ensured for ecological and environmental security. The Government of Tamil Nadu had also enacted the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 with an object to prevent deforestation and soil erosion and also to preserve the special characteristics of the hill areas as regards landscape, vegetal cover and climate. With the above object, the Act also provides for regulation of the cutting of trees and the cultivation of land in hill areas in the State. Section 3 of the said Act prohibits the cutting of trees in the forest land without previous permission of the committee constituted by the Government under Section 2A of the Act. Similarly, Section 4 prohibits the use of the land for new cultivation.
16. Factually, in the case on hand, major portion of the land in question is covered by thick forest commonly known as Shola forest, and only a small extent of land is left barren. In the event a barren land is put in use for any other purpose including for agricultural purpose, it would result in deforestation, which is bound to occur in the near future. That apart, the area is a source for continuous water flow and such water is the only source of drinking water for the Bodinaickkanur Municipality. The conservancy of forest land, though not included in the reserve forest, should be retained as open forest and in fact the State is obligated to guard against alienation of vacant land within the reach of forest growth in order to maintain the natural forest. Any new inhabitation would certainly affect the natural source of water apart from resulting in ecological imbalances. It would be also not in the interest of habitation of wild animals.
17. From the consistent declaration of law of the Supreme Court, in our opinion, the land in question cannot be either assigned or pattas could be granted to any individual and the said land, which is kept vacant for years and lies in the midst of thick reserve forest, should be kept as a forest only to maintain ecological balance. Any attempt to put the land for different use would certainly endanger the preservation and conservation of forest and for the said reason, the petitioners have to succeed in the writ petitions. Accordingly, the writ petitions are allowed forbearing the respondents from granting the pattas in respect of the lands in Survey Nos.1079/1B, 1110/2, 1113/1B, 1185/1B, 1195, 1197, 1186 and in Survey Nos.1079, 1185, 1186, 1195, 1197 in Kottagudi village, Bodinayakkanoor Taluk, Theni District acquired under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to any person. No costs.