Madras High Court
Nawab Shafath Ali Khan vs The District Collector on 12 July, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.24575 of 2009, 5825, 7612, 7613 and 7662 of 2010 and M.P.Nos.2 of 2009, 2,3,1,1,2,1,1 and 2 of 2010 and 1,1 and 1 of 2011 W.P.No.24575 of 2009 : Nawab Shafath Ali Khan .. Petitioner Vs. 1.The District Collector, Nilgiris District, Udhagamandalam, Tamil Nadu. 2.The Sub Registrar, Gudalur, Nilgiris District, Tamil Nadu. 3.The District Registrar, Udhagamandalam, Nilgiris District, Tamil Nadu. 4.State of Tamil Nadu, rep by its Secretary to Government, Environment and Forest Department, Fort St. George, Chennai. (R-4 impleaded vide order dt.22.3.2010 in M.P.No.1 of 2010) .. Respondents W.P.No.5825 of 2010 : A.Shanmughan .. Petitioner Vs. 1.State of Tamilnadu, represented by the Secretary to Government, Environment and Forest Department (FR-5), Fort St. George, Chennai-600 009. 2.The Collector of Nilgiris, Udhagamandalam, The Nilgiris-643 001. 3.The District Registrar, Registration Department, Udhagamandalam-643 001. .. Respondents W.P.Nos.7612, 7613 and 7662 of 2010 ; Kamala Devi .. Petitioner in W.P.Nos.7612 and 7613 of 2010 M/s.Masinagudi Farmers and Land Owners Association, represented by its President, Mr.P.T.Varghese, No.6/10,Company Mala, Masinagudi Post, Nilgiris District. .. Petitioner in W.P.No.7662 of 2010 Vs. 1.The State of Tamil Nadu, rep by its Secretary, Department of Forest, Fort St. George, Chennai-600 009. 2.The District Collector, Nilgiris District. 3.The District Forest Officer, Tamil Nadu Preservation of Private Forest, Nilgiris North Division, Ooty, Nilgiris District. 4.The District Registrar, Udhagamandalam, Nilgiris District. .. Respondents in all three writ petitions W.P.Nos.24575 of 2009, 7612 and 7662 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the notification, dated 01.11.1991 issued under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 and published in the Nilgiris District Gazette on 15.11.1991 and to quash the same. W.P.No.5825 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the Special Notification dated 01.11.1991 and published by the second respondent in the Nilgiri District Gazette Extraordinary on 15.11.1991 under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 and subsequent circular dated 21.8.2009 issued in Rc.A4 No.62857/08 by the second respondent is illegal, unjust and abinitio void. W.P.No.7613 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records comprised in O.Mu.No.494/10, Va3, dated 02.03.2010 on the file of the third respondent, quash the same and consequently to direct the third respondent to grant permission to digging of a bore well and to bring in the necessary equipment for the same to the petitioner lands. For Petitioner : Mr.Vijay Narayan, SC for Mr.A.Stalin in W.P.No.24575 of 2009 Mr.S.Gunaseelan in W.P.No.5825 of 2010 Mr.Mohammed Shaffiq, Mr.K.Magesh in W.P.Nos.7612, 7613 and 7662 of 2010 For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.S.M.Kirubanandan, Spl.G.P.(F) and Mr.K.Rajasekar, GA(F) Miss.C.Devi, GA - - - - COMMON ORDER
The short question that arises for consideration in this batch of writ petitions is whether the action of the District Collector, Nilgiris declaring certain private lands as forest under the power vested under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 (for short TNPPF Act) is unconstitutional and ultravires of the provisions of the said Act?
2.The notification of the District Collector, Nilgiris, dated 1.11.1991 (published in the Nilgiri District Gazette Extraordinary, dated 15.11.1991) is the subject matter of these writ petitions. By the aforesaid notification, the District Collector had notified certain lands in the revenue villages of Udagamandalam and Gudalur Taluks. Those villages in which lands were notified in respect of the two taluks were as follows:
UDAGAMANDALAM TALUK
1.Hullathy
2.Naduvattam
3.Kadanad
4.Sholur
5.MAsinagudi GUDALUR TALUK
1.Moonanad
2.Nelliyalam
3.Cherangode
4.Cherumulli
5.Nellakotta
6.Mudumalai
7.Sreemadurai
8.Devala
9.Padanthorai
10.O'valley
3.The schedule appended to the notification describes the names of villages. In Part A, extent of patta lands was notified and that in Part B, in terms of Section 17 of patta lands under Gudalur Janmam Act were notified. The schedule also contained the serial number, total extent of land, the extent notified in the notification and the names of pattadars. It is unnecessary to reproduce the schedule as the issues raised in these writ petitions are based upon legal grounds.
4.Even though the notification comprised more than 1000 pattadars, before this court only four pattadars have filed the writ petitions. In W.P.No.7662 of 2010, it is the association named as Masinagudi Farmers and Land Owners Association represented by its President has filed the writ petition seeking for declaration in respect of the members of the said association. Though the impugned notification is of the year 1991, the association itself was started only on 18.1.2010 with registration No.1/2010. While broad objectives were set out in paragraph 2 of the affidavit, no further details were given in the affidavit with reference to its membership and the details of ownership. The said writ petition filed by the association with omnibus prayer to strike down the notification which is more than 20 years old and without even revealed its membership, is liable to be rejected on that short ground. Such writ petition is not only not maintainable, but can never be encouraged as it lacks details about the nature of relief claimed by them. Even the President who had sworn to the affidavit, did not show that he owns any land and that he is an affected party in terms of the notification. The affidavit is also silent as to how all of its members were affected by the said notification. It is in all likelihood has been started only with a view to file the writ petition and not for any other purpose. However, in respect of the other four writ petitions, since individual pattadars are before this court, this court is inclined to go into the averments made therein.
5.Though it was strongly urged by the learned Advocate General Mr.P.S.Raman and also such a contention was raised in the counter affidavit that the writ petitions are liable to be rejected on the ground of laches, but since larger questions were involved, this court is inclined to go into the merits of the allegations made by the petitioner land owners.
6.The contention raised by the land owners was that the said notification issued under Section 1(2)(ii) of the TNPPF Act was illegal and violative of Articles 14, 19(1)(g) and 300-A of the Constitution. It was argued that the notification can be issued under the said provision only in respect of private forest having contiguous area of atleast two hectares. But the impugned notification overlooks the said power and proceeded to declare the area as forest. It also covers the agricultural lands which are having ryotwari patta. It also covers Temples, Churches, Mosques, Singara Power house, school buildings, Masinagudi Police Station, panchayat office as well as panchayat Board and various survey numbers. Therefore, it was argued that it was due to complete non application of mind on the part of the District Collector. When power has been given only to notify in respect of forest having contiguous area exceeding two hectares and many lands in the notification are not having contiguous area of two hectares, some of which are few cents and therefore, there could not have been a notification under the said power.
7.It was also stated that if the forest has spontaneous growth of trees and shrubs and if there is planned activity or cultivation, which leads to the growth of tees and shrubs, those lands cannot be treated as forest under the Act. The notification inasmuch as covers ryotwari patta lands to be brought under the forest was not valid and such lands can never be considered as forest lands. It was never the intention of the TNPPF Act to prevent agricultural operations in such lands or to impose a restraint on transfer or alienation of such lands which are not private forest. Since no detailed survey had been undertaken before the issuance of the notification, it led to classifying even the buildings and structures as being forest area under the notification.
8.The Government order in G.O.Ms.No.2837, Agriculture Department, dated 17.9.1969 which became the basis for issuance of the impugned notification, it could be seen that the said order was issued only to ensure that fauna and flora of the region was not affected by any industries and it sought to place a ban on such industries. In fact, after the publication of the notification, when there was an huge public protest in the area, the Government had issued a press release stating that the said notification will not affect the normal avocation and livelihood of the people nor purchase and sale of lands notified or construction of new building will be subject to any restriction. Notwithstanding the press release, the District Forest Officer, Nilgiris (North) and the District Collector were insisting that all Government authorities including the Registration Department for requiring compliance under Section 3 of the Act. It was also stated that the notification under Section 1(2) can be issued only by the committee consisting of five persons. The District Collector has no power to issue such notification. Under Section 12A of the TNPPF Act, it is mandated that the notification as soon as possible after it is issued, should be placed on the table of the Legislative Assembly. If the legislative assembly agrees in making any modification in the notification or agrees that the notification should not be issued, then the notification will have an effect only on such modified form or will have no effect as the case may be. It also provides that it is open to the legislative to approve or disapprove the notification or make modification. Therefore, placing such a notification before the legislative assembly is a mandatory requirement under law. The notification will have effect only after the approval by the legislative assembly. The said provision under Section 12A will have a check by the legislature to control the delegated legislation or conditional legislation as the case may be. Sine the said notification has not been placed before the legislative assembly till date, it is a still born child and liable to be set aside.
9.Further, it was stated that the notification under Section 1 of the Act has serious civil consequences. It requires before notification, the person affected should be given an hearing. It must also be noted that after the notification was published, several hundred legislatures had taken place. If at this juncture, the notification is given effect to, the people in that locality will be put to grave hardship. It is under these circumstances, the writ petitions came to be filed. Pending the writ petition, this court had granted an interim stay of the impugned notification initially for a limited period and was extended subsequently from time to time. Aggrieved by the said interim stay, the respondents have filed an application to vacate the stay together with supporting counter affidavit.
10.In some other writ petitions, it was also stated that the notification under Section 1(2)(ii) of the TNPPF act can apply only to the forest situated in the Estates defined under the Tamil Nadu Estates Land Act, 1908 in the State of Tamil Nadu. The lands belonged to farmers of Gudalur and Pandalur Taluks and also of Masinagudi village do not come under the purview of the Tamil Nadu Estates Land Act, 1908. Since a portion of the Nilgiris District known as South East Vayanad, it was excluded from the operations. G.O.Ms.No.2837, dated 17.9.1969 issued under Section 6(1) of the TNPPF Act to ban the starting of the industries within the radius of five mils around the Mudumulai Wild Life Sanctuary. It was also stated that the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 is sufficient to prevent the deforestation of Nilgiris District. The said Act also provides for a committee and for regularization of cutting of trees and cultivation of lands in hill area. The TNPPF Act is the general Act and the subsequent special Act, i.e., the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 will prevail over the same.
11.In the counter affidavit filed by the District Collector, it was stated that the TNPPF Act, 1949 was passed to prevent the destruction of private forest and to protect the environment. The Act has been in force for over 60 years. The impugned notification was notifying the patta lands within a radius of five mils adjoining the Mudumalai Sanctuary as forest in term of Section 1(2)(ii) of the TNPPF Act with reference to the order issued by the State Government in terms of G.O.Ms.No.2837, Agricultural Department, dated 17.09.1969. By virtue of the notification, all that is requires is the pattadar owning the land must get prior permission from the Committee for selling, mortgaging and leasing the lands otherwise notified under the Act. The said requirement has been made in terms of Section 3(1)(a) of the TNPPF Act. Under Section 3(1)(b), any alienation in contravention of the provision will be null and void. Further the land notified under the Act cannot be used for expansion of plantation or for any non forest purpose without any prior permission in writing of the Committee constituted under Section 2A of the Act. Section 3(2) mandates that no owner of any forest has any right to do any Act likely to denude the forest or diminish its utility as such. The term "forest" is defined under Section 2(aa) and it includes definition covers even waste or communal land containing trees, shrubs, reeds, pasture land and any other class of land declared by the State Government by notification.
12.It was further stated that apart from that the Forest (Conservation) Act, 1980 contains provision under Section 2 prohibiting user of any forest land or any portion thereof for non forest purpose. The Supreme Court while passing orders in proceedings in T.N. Godavarman Thirumulkpad v. Union of India reported in (1997) 2 SCC 267, vide order dated 12.12.1996 had issued extensive directions to the State of Tamil Nadu. It had also held that the provisions of the Forest (Conservation) Act, 1980 will apply to all forest irrespective of ownership or classification. It was also stated that some of the petitioners are claiming that they are having plantation and were given occupation under the scheme of regularization by the Revenue Divisional Officer only in the year 1972. Pattas were granted after the stipulated period of 10 years' possession and there is no difficulty in applying the TNPPF Act, 1949. The notification was issued only in terms of the provisions of the Act. The Government had also noticed that there has been mushrooming growth of land transactions and building, resorts in the area. Therefore, the committee is required to grant approval before alienation of properties. It was also stated that permission was granted by the District Committee depending upon the bona fide nature of application. The District Committee has been meeting every month for many years. Through a press release, it was informed to all concerned that the Committee will be meeting every fortnight to deal with the applications.
13.It was further stated that the Government by virtue of the power conferred on it, take remedial measures to implement the provisions of the Act. The District Collector had also requested the Inspector General of Registration to issue necessary instructions to the Registrar and Sub Registrars not to register any land coming under Section 17 of the Gudalur Janmam Act, 1969 as well as the lands notified under the TNPPF Act, 1949. It was also stated that the District Committee has been granting permission to bona fide applicants and that the list of such permissions granted for the period from 1986 till 2009 has been set out in paragraph 9 of the counter affidavit. Therefore, it was requested that the writ petitions should be dismissed.
14.The learned Advocate General also gave a field summary of 1991 notification in respect of each village giving details of total number of fields covered and total area in terms of acreage and per field, which reads as follows:
FIELD SUMMARY OF 1991 NOTIFICATION :
Total Number of Fields Total area (acres) Average Area per field 11891 46599.67 3.92 Fields excluding large holdings Total Area (acres) Average Area per field 11489 16630.91 1.45 Fields of Large Holdings Total Area (acres) Average area per field 402 27032.76 67.25
15.Reply affidavits were also filed in some of the wit petitions reiterating the contentions raised by them.
16.Before proceeding with the rival contentions, it is necessary to extract certain provisions of the Act which are relevant for the purpose of the case. Section 3(2) of the Madras Estates Land Act, 1908 reads as follows:
"3(2)"Estate" means -
(a)any permanently settled estate or temporarily settled zamindari ;
(b)any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector;
(c)any unsettled palaiyam or jagir.
(d)any inam village of which the grant has been made, confirmed or recognized by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees."
17.Sections 1(2)(ii) and 1(2)(iii) of the Tamil Nadu Preservation of Private Forests Act, 1949 reads as follows:
"1(2)(ii)to forests situated in estates as defined in the [Tamil Nadu] Estate Land Act, 1908, in the [State] of Tamil Nadu.
(iii)to private forests situated in other areas in the State of [Tamil Nadu] and having a contiguous area exceeding (2 hectares) which may be declared by the [committee:] to be forests for the purposes of this Act, by notification, in the District Gazette) but does not apply to reserved forests constituted under the Tamil Nadu Forest Act, 1882, and lands at the disposal of the Government as defined in that Act.
Explanation:-A private forest exceeding [2 hectares] in extent shall not cease to be such by reason only on the fact that, in a portion thereof, [trees, shrubs or reeds are felled or cut] with or without the permission of the committee or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances.]"
18.Section 2(aa) defines the term "Forest" which reads as follows:
"2(aa)'Forest' includes waste or communal land containing [trees shrubs and reeds] pasture land and any other class of land declared by the [State] Government to be a forest by notification in the Fort St. George Gazette."
19.Section 3 deals with the preservation of private forests, which reads as follows:
"3.Preservation of private forests:-(1)(a)No owner of any private forest shall, without the previous sanction of the Committee sell, mortgage, lease or otherwise alienate the whole or any portion of the forest.
Explanation:-Nothing in the sub-section shall be construed as preventing the owner from selling or otherwise dealing with the right together and remove forest produce other than [trees, timber and reeds] in the usual or customary manner for a period not exceeding two years.
(b)Any alienation in contravention of clause (a) shall be null and void-
(i)if the alienation is of any forest declared by [the District Collector] to be a forest under clause (iii) of section 1(2) or of any portion of such a forest, and is made on or after the date on which the declaration takes effect;
(ii) [......]
(iii)if the alienation is of any forest or of any portion of such a forest, and is made on or after the 16th August 1946.] [(2)No owner of any forest and no person claiming under him, whether by virtue of a contract, licence or any other transaction entered into before or after the commencement of the Tamil Nadu Preservation of Private Forests Act, 1946, or any other person shall without the previous permission of the [Committee] [(a) cut trees or reeds) (b) do any Act likely to denude the forest or diminish its utility as food.
Provided that nothing contained in this sub-section shall apply to the removal of dead or fallen trees or to any act done for the usual or customary domestic purposes or for making agricultural implements.] (3)Notwithstanding anything contained in sub-section (1) or sub-section (2), the [State Government] may exempt any forest or class of forests or class of trees there in from all or any of the provisions of this section."
20.Section 4 of the TNPPF Act deals with appeal provision, which reads as follows:
"4.Appeals:-Any person aggrieved by an order under clause (a) of sub-section (1) of section 3 or under sub-section (2) of that section in regard to the sanction or permission referred to in that clause or sub section may, within two months of the receipt of such order prefer an appeal in writing to the [State Government]. The [State Government] shall pass such orders on the appeal as they may think fit."
21.Section 12-A of the TNPPF Act reads as follows:
"12-A.Rules and orders to be placed before the legislature:-(1)(a)All rules made under this act, shall be published in the [Tamil Nadu Government Gazette] and unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published.
(b)All notification issued under this Act shall unless they are expressed to come into force on a particular day, come into force on the day on which they are published.
(2)Every rule made or notification issued under this Act, shall as soon as possible after it is made [or issued], be placed on the Table of the Legislative Assembly, and if, before the expiry of the session in which it is so placed or the next session the Legislative Assembly agrees in making any modification in any such rule or [notification] or the Legislative Assembly agrees that the rule [or notification] should not be made [or issued] the rule [or notification] shall there after have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule [or notification]."
22.Starting the main ground of attack, Mr.Vijay Narayan, learned Senior Counsel submitted that inasmuch as Section 12-A was not complied with, the notification was a still born child and cannot be acted upon. For that purpose, the learned Senior counsel relied upon a judgment of the Supreme Court in Quarry Owners' Association v. State of Bihar reported in (2000) 8 SCC 655 and relied upon the following passages found in paragraphs 44 to 48 which reads as follows:
"44.This takes us to the next submission, whether the introduction of sub-section (3) of Section 28 by Parliament in any way strengthens the guidelines and puts a check on the exercise of power by the State Government. Sub-section (1) of Section 28 refers to the placement of every rule and every notification made by the Central Government before each House of Parliament for a period of 30 days when the same becomes effective, subject to its modification, if any. Sub-section (3) of Section 28 directs placement of every rule or notification made by the State Government before each House of the State Legislature. The submission is, there is no provision in sub-section (3) as in sub-section (1), of such rule being subject to scrutiny for its approval or modification by the State Legislature. The submission is, sub-section (3) in no way places any check on the State Government, as the State Legislature is not entrusted with power to approve or modify. In other words, introduction of sub-section (3) is merely for the sake of information and nothing more. Further it is submitted, when language of two different sub-sections in the same section is different it has to be differently interpreted, which cannot be construed to connote same meaning and same effect. It is also submitted, even if sub-section (3) was brought on the statute-book, it was not sufficient for the State, as it has to show that in fact both the impugned notifications were so laid before both Houses of the Legislature. The submission is, actually they were not so laid. Further reliance is placed on the case of Atlas Cycle Industries Ltd. v. State of Haryana22 (SCC p. 196, para 30) where this Court held that a mere laying procedure is directory not mandatory. On the other hand, submission on behalf of the State is that this laying procedure before the legislature cannot be a mere show, but it is for a purpose, the effect of which it has to be given. In our considered opinion, the incorporation of this by Parliament cannot be said to be in futility. In fact, this was brought in, in view of the observation made by this Court in the case of D.K. Trivedi1.
45.It is true that the language of both sub-section (1) and sub-section (3) of Section 28 is different. They are reproduced below:
28. Rules and notifications to be laid before Parliament and certain rules to be approved by Parliament.(1) Every rule and every notification made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.
* * * (3) Every rule and every notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such legislature consists of one House, before that House. There is no difficulty for us to uphold their submissions that in view of difference in the language of sub-section (3), the same meaning to it as that of sub-section (1) cannot be given. This difference has been carved out for a purpose to give different projection to the said two provisions. In the case of major minerals which play important role in the national growth and wealth and where the delegatee is the Central Government, Parliament retained its full control but for the minor minerals, Parliament felt for the minor minerals as the subject is of local use and the State Government being well versed in dealing with it in the historical background, mere placement of rules, notifications framed by it before the State Legislature would be a sufficient check on the exercise of its powers. Thus, this difference of language gives two different thrusts as intended by Parliament. Any act of Parliament, far less when it introduces any new provision through amendment, it could be said for it to be in futility. The purpose has to be found. What could be the purpose for such an amendment? One of the reasons is that this was brought in, in view of the observation made by this Court in D.K. Trivedi1. This Court records: (SCC p. 62, para 51) It was, therefore, for Parliament to decide whether rules and notifications made by the State Governments under Section 15(1) should be laid before Parliament or the legislature of the State or not. It, however, thought it fit to do so with respect to minerals other than minor minerals since these minerals are of vital importance to the country's industry and economy, but did not think it fit to do so in the case of minor minerals because it did not consider them to be of equal importance. Parliament through its wisdom, apart from the above brought this amendment also to keep a check on the exercise of power by the State Government as delegatee. The question is whether mere laying of rules and notifications before the legislature, as in the present case, can be construed as a check on the State Government's power. Laying before the Houses of Parliament is done in three different ways. Laying of any rule may be subject to any negative resolution within a specified period or may be subject to its confirmation. This is spoken of as negative and positive resolution respectively. Third may be mere laying before the House. In the present case, we are not concerned with either the affirmative or negative procedure but consequence of mere laying before the legislature.
46.Administrative Law by H.W.R. Wade & Forsyth (7th Edn., p. 898) records with reference to mere laying:
Laying before Parliament An Act of Parliament will normally require that rules or regulations made under the Act shall be laid before both Houses of Parliament. Parliament can then keep its eye upon them and provide opportunities for criticism. Rules or regulations laid before Parliament may be attacked on any ground. The object of the system is to keep them under general political control, so that criticism in Parliament is frequently on grounds of policy. The legislation concerning laying has already been explained.
Laying before Parliament is done in a number of different ways. The regulations may merely have to be laid; or they may be subject to negative resolution within forty days; or they may expire unless confirmed by affirmative resolution;
47.Constitutional and Administrative Law by Stanley de Smith and Rodney Brazier, 7th Edn., records:
... If the instrument has merely to be laid, or laid in draft, before Parliament, it will be delivered to the Votes and Proceedings Office of the House of Commons. No opportunity is provided by parliamentary procedure for the instrument to be discussed, but its existence will at least be brought to the notice of Members and the Minister is more likely to be questioned about it than if it is not laid before Parliament at all.
48.In a democratic set-up, every State Government is responsible to its State Legislature. When any statute requires mere laying of any notification or rule before the legislature its executive, viz., the State Government comes under the scrutiny of the legislature concerned. Every function and every exercise of power, by the State Government is under one or the other Ministry which in turn is accountable to the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the jurisdiction over the same, each member of the House, subject to its procedure gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or notifications may not be under the purview of its modification, such Members may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit on any such other matter. Short of modification power, it has a right even to condemn the Ministry. No doubt in the case where the House is entrusted with power to annul, modify or approve any rule, it plays a positive role and has full control over it, but even where the matter is merely placed before any House, its positive control over the executive makes even mere laying to play a very vital and forceful role which keeps a check over the State Government concerned. Even if submission for the appellants is accepted that mere placement before a House is only for information, even then such information, inherently in it makes the legislature to play an important role as aforesaid for keeping a check on the activity of the State Government. Such placement cannot be construed to be non est. No act of Parliament should be construed to be of having no purpose. As we have said, mere discussion and questioning the Ministry concerned or authority in the House in respect of such laying would keep such authority on guard to act with circumspection which is a check on such authority, specially when such authority is even otherwise answerable to such legislature. Further examining the scheme of the Act, with its historical background, we find there is clear demarcation in dealing between the major minerals and the minor minerals. For minor minerals all its activity before this Act has been delegated to the State Government as it having all conceivable knowledge over it, as it being of local use and not being of much national importance. For this difference also stricter control is made for the major minerals through Section 28(1) than for the minor minerals. Thus, this mere check on the State Government, as aforesaid, may have been found to be sufficient by Parliament, with reference to the minor minerals. Thus, the language of both sub-section (1) and sub-section (3) though different, is only for two different purposes. Thus when Parliament introduced sub-section (3) through amendment, it was to further strengthen the control over the State Government's power. Any other submission, the one made by the appellants, makes such an Act of Parliament meaningless, which cannot be attributed to Parliament.
23.For the very same proposition, the learned Senior Counsel placed reliance upon a judgment of the Supreme Court in Union of India v. National Hydroelectric Power Corporation Ltd., reported in (2001) 6 SCC 307. In that case, the procedure for laying notification before the house of Parliament was not followed. Therefore, the Supreme Court had held that when resolution not having been moved in terms of the Act, it cannot be held that there was any valid amendment to Schedule 1 of the Water (Prevention and Control of Pollution) Cess Act, 1977.
24.The learned Senior Counsel submitted that before notification, principles of natural justice required that the owners of lands should be given notices to show cause against the said notification. He also placed reliance upon a judgment of this Court in Sirumalai Kanakasabapathy Poonjolai Company Limited by its Managing Director K.M.J.Joseph Vs. The State of Tamil Nadu represented by its Secretary to Government, Forest and Fisheries Department, Fort St.George, Madras-9 and another reported in 1980 (1) MLJ 202 and reliance was placed upon the following passage found in paragraph 5 which reads as follows:
5.If in this case, it had been shown that the land-holder while admitting the ryot to the land reserved for forest, had shown an intention not to confer upon the person so admitted, a permanent right of occupancy, then the land would have retained its character as forest land. Therefore the mere existence of shrubs, and jungle or wild and natural growth by itself, may not make the land as forest. Even the meaning given in the Random House Dictionary for the word forest is to the effect that a forest is an extensive area preserving some or all of its primitive wildness and usually having game or wild animals in it. But the Estates Land Act and the Abolition Act did not treat the lands as non-cultivable lands and therefore they are to be treated as ryoti lands. When once they are treated as ryoti lands and ryotwari patta has been issued, the petitioner is entitled to hold the lands as not forest lands and the Preservation of Private Forest Act could not be applied to such a land. The impugned notification is therefore beyond the jurisdiction of the District Collector."
Since no notice was given, the same was invalid.
25.The learned Senior counsel further submitted that the power to regulate the forest cannot be stretched beyond the grant of permission as the power of regulation take within its sweep in an appropriate case to revoke or cancel the permission itself. Therefore, if the power is exercised, it should be exercised consistent with the principles of natural justice. In this context, the learned Senior Counsel relied upon a judgment of the Supreme Court in State of U.P. v. Maharaja Dharmander Prasad Singh reported in (1989) 2 SCC 505 and referred to the following passage found in paragraph 55 which reads as follows:
55.It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the authority's discretion that is exercised, but someone else's. If an authority hands over its discretion to another body it acts ultra vires. Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smith sums up the position thus:
The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.
26.The learned Senior Counsel further submitted that if the authority is to exercise his power, he has to exercise according to his own discretion and he should not be under the dictate of some one else. In this context, he placed reliance upon a judgment of the Supreme Court in Anirudhsinhji Karansinhji Jadeja v. State of Gujarat reported in (1995) 5 SCC 302 and relied on the following passage found in paragraph 11 of the said judgment which reads as follows:
"11....... If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all."
27.The learned Senior Counsel further submitted that inasmuch as 1991 notification had never been acted upon for the last 20 years, it should be taken as a dead letter and that doctrine of desuetude will apply in such circumstances. For this purpose, the learned Senior Counsel placed reliance upon a judgment of the Supreme Court in Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd., reported in (1995) 3 SCC 434 and referred the following passage found in paragraph 34 which reads as follows:
"34.Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden."
28.Per contra, Mr.P.S.Raman, the learned Advocate General contended that the petitioners were guilty of laches in moving this court. Except in W.P.No.5825 of 2010, in other writ petitions, it is the subsequent purchasers who are before this court. Hence the writ petitions are not maintainable at the instance of the subsequent purchasers. The writ petitions have been filed under misconception of law and that whenever an application is made for alienation of land, permission has been granted.
29.The learned Advocate General submitted that the constitutional validity of Section 1 (2) (iii) of the TNPPF Act was gone into by P.Sathasivam, J. (as he then was) in a batch of writ petitions in W.P.No.7275 of 1985 and batch cases, dated 05.04.2002 in Kanyakumari District Planters Association, Ramavaramapuram, Nagercoil, Kanyakumari District represented by its Secretary and others Vs. The State of Tamil Nadu and others. The learned Advocate General submitted that the issues raised in these writ petitions regarding plantation being covered under the TNPPF Act and that the forest land will include even the other lands not strictly construed by the dictionary meaning and when declaration by the Collector or the Committee declaring certain lands as forest lands is valid and also the provisions are not violative of Articles 14, 19(1)(g) and 300-A of the Constitution and that there are no arbitrary power vested on the committee granting prior permission have all been considered in the said judgment. He referred to the following passages found in paragraphs 25, 31, 32, 33, 34 and 36, which read as follows:
"25....... To preserve the trees from indiscriminate cutting by private individuals, the preservation of private forest has to be undertaken by the State and therefore, it was necessary to enact the separate Act called the Tamil Nadu Preservation of Private Forest Act, 1949. As stated earlier, it is clear from Explanation to Section 1 (2) (iii) of the Act that the lands which are cultivable will not cease to be forests. Therefore, the rubber plantations even if they are cultivated partly or wholly is to be considered as forest for the purpose of declaration by the District Collector as forest by notification in the District Gazette. Though the word forest as generally understood means a large uncultivated tract of land covered by trees and underwood, it is clear from the information furnished by the first respondent that the plantation area referred to in the writ petitions not only contain rubber trees, but also contain other miscellaneous trees like rosewood, teak, aini, maruthu and themba trees and shrubs of undergrowth; hence it cannot be said as merely plantations. In the light of the information furnished and in view of the Explanation referred to above, it is clear that a private forest which is a forest shall not cease to be such by reason of the fact that a portion thereof lands are cultivated....
31...In the light of the observation of the Supreme Court in the decision in State of Kerala v. Pullangode Rubber and Produce Co., Ltd.,(cited supra) and of the fact that the question forest as defined in Section 2(a) of the Act and forest produce was referred to a larger Bench, I am of the view that the learned Advocate General is right in pointing out that the term forest land occurring in Section 2, will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership.
32. ..... It is also contended that neither the Collector nor the committee has jurisdiction to declare the land as forest under Section 1 (2) (iii) without there being a notification by the State Government declaring such classes of lands as Forest under Section 2 (aa) of the Act. As rightly stated in the counter affidavit of the first respondent, the land declared by the State Government to be a forest by notification in Tamil Nadu Government Gazette comes under reserved forest, whereas the Collector/ Committee is the competent authority under section 1 (2) (iii) of the said Act to declare an area exceeding 2 hectares to be forest for the purpose of the said Act by notification in the District Gazette. To put it clear, only for the purpose of declaring lands as forests to bring them under reserved forest, notification by the Government is necessary, but in the instant case, the lands declared as forest by the Collector is a private forest and for such declaration, Collector/ Committee is the competent authority and the Government notification is not required as claimed.
33.... It is further explained that to keep the ecological balance the tree cover should be 33 per cent of the total extent of the land in a country or State. Tamil Nadu has an area of forests equivalent to 26 per cent. Before enactment of the Act, there were indiscriminate destruction of private forest in this State. In order to protect such private forest from destruction, this Act was found necessary. The first respondent has also explained that whenever there are number of private forests available in the State, notification has been issued by the respective District Collector/ Committee. It is also stated that the plantation such as tea, coffee and cardamom are mostly grown in hill areas and they are governed by Tamil Nadu Hill Areas Preservation of Trees Act, 1955 (Tamil Nadu Act XVIII of 1955) and prior permission is also required for felling under section 3(1) of the said Act by the District Committee which is similar to that of the impugned order. It is further stated that in Kanyakumari District, the reserved forest as well as private forests are in high percentage when compared with other districts. I have already referred to the fact that as far as Kanyakumari District is concerned, there are numerous pockets of private forests in the midst of the reserved forest. In such circumstances, the contention with reference to article 14 and 19 (1) (g) of the Constitution of India is liable to be rejected.
34....., I am of the view that the petitioners claim that the impugned notifications are in violative of principles of natural justice cannot be accepted. For the same reasons, the exercise of the power by the District Collector/Committee and other officers cannot be construed as unreasonable or discriminatory in nature. As rightly contended by the respondents, the Rubber Board will give advice in technical matters like selection of high-yielding variety of nursery stock plants, fertiliser application and pesticide application and collection of latex etc., and not about felling trees or clearing the area. It is not mandatory to obtain clearance of the Rubber Board for cutting down the rubber trees and the present Act is intended to prevent indiscriminate destruction of forest.
36.Though it is stated that Section 1 (2) (iii) and Section 2 (aa) of the Act are unconstitutional and that the District Collector or Committee are given arbitrary and un-guided powers, in the light of the fact that there is a provision in the Act for constitution of committee, which consists of the District Collector as its Chairman and other Officers as members and considering its nature of duties, as seen from the Government Orders referred to in the counter affidavit, I am of the view that the said contention is liable to be rejected. Likewise, the contention that sections 3 and 6 infringes the fundamental rights guaranteed under Articles 19 (1) (g) and 300-A of the Constitution of India is also liable to be rejected. First of all, Section 6 is not in the statute book and Section 3 imposes only certain restrictions.... "
30.The learned Advocate General also referred to a judgment of a division bench of this court in N.Mangalchand Vaid and others Vs. Secretary to Government of Tamil Nadu, Chennai-9 and others reported in (2008) 1 MLJ 476 for contending that it is not necessary to have the committee for the issuance of notification as the District Collector is also the Chairman of the committee both under the TNPPF Act, 1949 as well as the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 and referred to the following passages found in paragraphs 22 to 25 of the said judgment which reads as follows:
"22.The other argument advanced on the part of the appellants is that as per the Amended Act 68 of 1979, the power to issue a notification vests only with the Committee constituted under Section 2-A of the Private Forests Act and therefore, the notification issued by the District Collector is bad in law.
23.At this juncture, it is to be mentioned that the District Collector is the Chairman of the Committees constituted both under the Tamil Nadu Preservation of Private Forests Act and the Tamil Nadu Hill Areas (Preservation of Trees) Act. Therefore, even if the notification is issued by the District Collector, but not by the Committee headed by him, it could only be treated as an irregularity and definitely not an illegality. It is now a well established principle of law that such irregularities will not vitiate the entire proceedings, since no prejudice has been caused to the land owners.
24.It is to be mentioned that the provisions of both the Acts are only regulatory and preventive in nature to prevent the indiscriminate destruction of the forests and the procedure contemplated is also very lucid and in case there is any rhyme or reason for the land owners to remove the shade trees which are fully grown and which get silviculturally matured, they could very well approach the Committees constituted for permission and no case of any arbitrariness or discrimination adopted on the part of the said Committees has been brought to our notice.
25.A social responsibility is cast on every individual to prevent deforestation. The laudable and lucid laws enacted to preserve Mother Nature intact for the welfare of the Society and future generations, like the Tamil Nadu Preservation of Private Forests Act, 1949, should be strictly adhered to, lest, the repercussions would be very serious affecting the ecological balance, leading to destruction and chaos."
31.The learned Advocate General submitted that the earliest case where the requirement to place the statutory notification before the house of legislature came to be considered by the Supreme Court in Atlas Cycle Industries Ltd. v. State of Haryana reported in (1979) 2 SCC 196 and referred to the following passages found in paragraphs 23 and 24, which reads as follows:
"23.In Starey v. Graham (1899) 1 QB 406 where it was contended that the Register of Patent Agents Rules, 1889 which had been repealed by Rules of 1890 could not be re-enacted by mere reference without complying with the provisions of Section 101, sub-section (4) of 46 and 47 Vict. c. 57 according to which, a copy of the Rules of 1889 should also have been laid before both Houses of Parliament in order to make them valid, Channell, J., said:
I somewhat doubt whether the provisions of Section 101 are more than directory and whether it is necessary in any particular case where reliance is placed on such rules to prove that in fact its provisions had been complied with.
24.In Jan Mohammad Noor Mohammad Bagban v. State of Gujarat (1966) 1 SCR 505 : AIR 1966 SC 385 where it was urged by the petitioner that the rules framed by the Provincial Government in 1941 in exercise of the powers conferred on it under Section 26(1) of the Bombay Agricultural Produce Markets Act (22 of 1939) had no legal validity as they were not laid before each of the Houses of the Provincial Legislature at the session thereof next following as provided by sub-section (5) of Section 26 of the Act, this Court rejected the contention and upheld the validity of the said rules. The following observations made in that case by Shah, J. (as he then was) on behalf of the Constitution Bench are opposite:
The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out of World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946. Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the roles acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26(1). It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature.Granting that the provisions of sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violated, we are of the view that sub-section (5) of Section 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. (Emphasis supplied.) The rules have been in operation since the year 1941 and by virtue of Section 64 of Gujarat Act 20 of 1964 they continue to remain in operation."
The learned Advocate General submitted that the same view in Atlas Cycle Industries Ltd.'s case came to be followed and that decision was held good even today.
32.The learned Advocate General submitted that the judgment cited by the petitioners in Quarry Owners' Association's case (cited supra) and the National Hydroelectric Power Corporation Ltd.'s case (cited supra) were considered subsequently by the Supreme Court in Veneet Agrawal v. Union of India, reported in (2007) 13 SCC 116 and in paragraph 17, the Supreme Court had observed as follows:
"17.It was observed that provision was merely directory and not mandatory and even if the rules were not laid before the House at all even then the non-compliance with the laying down of the rules before Parliament could not be a ground to declare the rules/regulations framed under the statute as ultra vires."
33.The learned Advocate General also referred to the subsequent pronouncement of the Supreme Court in Ram Deen Maurya v. State of Uttar Pradesh reported in (2009) 6 SCC 735 for contending that if the consequence of non compliance was not provided, then the provision is only directory and placed reliance upon the following passage found in paragraph 52, which reads as follows:
"52.While considering the non-compliance with procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice and furthers its ends and, therefore, if the consequence of non-compliance is not provided, the requirement may be held to be directory."
34.In the light of the above, the first question whether in the absence of statutory notification being placed before the legislative assembly will become a still born child is concerned, it must be noted that the Act do not deal with any consequence upon the non observance of the procedure. Section 12A will have to be held directory in nature. Therefore, only on the ground that it was not placed before the legislative assembly, the impugned notification does not suffer from any irregularity or illegality.
35.The second condition that principles of natural justice were not followed before issuing the notification is concerned, the Act do not contemplate any hearing for the purpose of notifying certain areas as forest. In Sirumalai Kanakasabapathy Poonjolai Company Limited's case (cited supra), the understanding of the court for the definition of "forest" was on the basis of the dictionary meaning of the term. But, in the subsequent pronouncement in Kanyakmari District Planters Association's case (cited supra), the Court had clarified that such dictionary meaning cannot be read into the provisions of the Act and it should have wider meaning to include certain things which are not strictly considered as forest. It was also explained and confined to the facts of the case in the division bench judgment in Mangalchand Vaid's case (cited supra). Further understanding in the judgment in Sirumalai Kanakasabapathy Poonjolai Company Limited's case that once ryotwari patta was issued, the person is entitled to hold the land as land and not as forest land and that the TNPPF Act will not apply also cannot be correct in the light of the subsequent pronouncement. Therefore, in the absence of any provision for hearing the petitioners, the question of invoking the principles of natural justice will not arise. Further except for one petitioner, all other persons were subsequent purchasers and therefore, they have no locus standi to invoke such concept that too after 20 years after the notification was issued. Hence the said objection must necessarily overrule.
36.The third contention regarding the composition of the committee is concerned, it had been squarely answered by the division bench of this court in N.Mangalchand Vaid's case (cited supra). The contention made by the petitioner in W.P.No.5825 of 2010 that since it is the land which is coming within the definition of "estate" under Section 3(2)(d) as inam village and excluded in terms of Section 1(2)(ii) as it is not forest also cannot be countenanced by this court. As rightly contended in the counter affidavit, the petitioner in that writ petition had got assignment by the Revenue Divisional Officer under the scheme of regularization of occupation by the RDO proceedings, dated 24.7.1992 and after the stipulated period of 10 years, he was granted ryotwari patta by the Assistant Settlement Officer, Gudalur. Therefore, he cannot rely upon the exclusion provision in terms of the Inam Abolition Act. In the light of the same, the contentions raised by the petitioners are without substance and are liable to be rejected.
37.Before parting with the case, it is necessary to refer to the attempt by the Supreme Court to treat the issue of preservation of forest as the most important issue. The Supreme Court has been issuing from time to time directions in this regard and has also confirmed the empowering committee. The Supreme Court's observations while passing the interim order in T.N. Godavarman Thirumulkpad v. Union of India reported in (1997) 2 SCC 267 in this regard are at most important in understanding the provisions of the Act as well as the need to prohibit indiscriminate destruction of forest. In that case, the Supreme Court in paragraphs 3 and 4 had observed as follows:
"3.It has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the Act) and the meaning of the word forest used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by Section 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position.
4.The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term forest land, occurring in Section 2, will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat1, Rural Litigation and Entitlement Kendra v. State of U.P.2 and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority3). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi4 has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.
38.In respect of State of Tamil Nadu, the following specific directions were given by the Supreme Court, which reads as follows:
5.We further direct as under:
......
5. Each State Government should constitute within one month an Expert Committee to:
(i) Identify areas which are forests, irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.
........
IV. FOR THE STATE OF TAMIL NADU
1.There will be a complete ban on felling of trees in all forest areas. This will however not apply to:
(a) trees which have been planted and grown, and are not of spontaneous growth, and
(b) are in areas which were not forests earlier, but were cleared for any reason.
2.The State Government, within four weeks from today, is to constitute a committee for identifying all forests.
3.Those tribals who are part of the social forestry programme in respect of patta lands, other than forests, may continue to grow and cut according to the Government Scheme provided that they grow and cut trees in accordance with the law applicable.
4.Insofar as the plantations (tea, coffee, cardamom etc.) are concerned, it is directed as under:
(a) The felling of shade trees in these plantations will be
(i) limited to trees which have been planted, and not those which have grown spontaneously;
(ii) limited to the species identified in the TANTEA Report;
(iii) in accordance with the recommendations of (including to the extent recommended by) TANTEA; and
(iv) under the supervision of the statutory committee constituted by the State Government.
(b) Insofar as the fuel trees planted by the plantations for fuel wood outside the forest area are concerned, the State Government is directed to obtain within four weeks, a report from TANTEA as was done in the case of shade trees, and the further action for felling them will be as per that report. Meanwhile, Eucalyptus and Wattle trees in such area may be felled by them for their own use as permitted by the statutory committee.
(c) The State Government is directed to ascertain and identify those areas of the plantation which are a forest and are not in active use as a plantation. No felling of any trees is however to be permitted in these areas, and sub-paras (b) and (c) above will not apply to such areas.
(d) There will be no further expansion of the plantations in a manner so as to involve encroachment upon (by way of clearing or otherwise) of forests.
5.As far as the trees already cut, prior to the interim orders of this Court dated December 11, 1995 are concerned, the same may be permitted to be removed provided they were not so felled for Janmam land. The State Government would verify these trees and mark them suitably to ensure that this order is duly complied with. For the present, this is being permitted as a one-time measure.
6.Insofar as felling of any trees in Janmam lands is concerned (whether in plantations or otherwise), the ban on felling will operate subject to any order made in the Civil Appeals Nos. 367 to 375 of 1977 in CAs Nos. 1344-45 of 1976. After the order is made in those civil appeals on the IAs pending therein, if necessary, this aspect may be re-examined.
7.This order is to operate and to be implemented, notwithstanding any order at variance, made or which may be made by any Government or any authority, Tribunal or court, including the High Court.
The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance, made or which may be made hereafter, by any authority, including the Central or any State Government or any court (including High Court) or Tribunal.
39.In the present case, the Act is only regulatory and not appropriatory in character. By virtue of the notification, the private land owners are bound to seek prior sanction of the committee before alienating the properties and any person by virtue of any contract or licence without prior permission of the committee cut trees and reeds or likely to denude the forest or diminish its utility, Section 3(3) provides for an exemption for such class of forest or class of trees from the provisions of the Act. Therefore, invoking the protection under Articles 14, 19(1)(g) and 300A does not arise.
40.Further, if a person is aggrieved by an order passed under Sections 3(1), 3(1)(a) or 3(2), an appeal is provided to the State Government. Therefore, it is not as if that the Committee which is having final say in the said matter. IT is also stated by the Director Collector that number of applications have been considered and scrutinized by the Committee and permissions have been granted. It has also been stated that the Committee which was earlier having meeting on monthly basis, was also directed to meet on fortnight basis in case of any application which requires urgent attention. Though the notification covers more than 1000 land owners, only one patta holder is present before this court and three other writ petitions were filed by subsequent purchasers. The another writ petition filed by the association did not even indicate the names of its members. The cause of action which made them to file the writ petition was also not disclosed.
41.Under these circumstances, there is no case made out by the petitioners. Hence all the five writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The District Collector, Nilgiris District, Udhagamandalam, Tamil Nadu.
2.The Sub Registrar, Gudalur, Nilgiris District, Tamil Nadu.
3.The District Registrar, Udhagamandalam, Nilgiris District, Tamil Nadu.
4.The Secretary to Government, State of Tamil Nadu, Environment and Forest Department, Fort St. George, Chennai.
5.The District Forest Officer, Tamil Nadu Preservation of Private Forest, Nilgiris North Division, Ooty, Nilgiris District