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Showing contexts for: pathway width in Eldho Kuruvilla vs The State Of Tamil Nadu on 1 November, 2018Matching Fragments
2. A notification was issued under Section 4 of the Tamil Nadu Forest Act, 1882, [for brevity, "the Act"] proposing to reserve the http://www.judis.nic.in entire forest as a reserved forest. Pursuant to the said notification, a proclamation was made by the Forest Settlement Officer. Section 10 of the Act speaks about the claim of rights of occupancy and ownership. After crossing over the proceedings contemplated under Sections 11 to 15 of the Act, a notification was issued, declaring the forest as a reserved forest. The above notification states about the rights of the petitioners to use the pathway leading to Ammakajam and Koodamparai Estates with a width of one metre. The petitioners challenged the notification issued under Section 16 of the Act, inter alia alleging that the pathway is actually for three metres, as per the proceedings of the Forest Settlement Officer, Usilampatti, dated 08.01.1997. Based on the aforesaid factual premise, the petitioners, without making any claim under Section 10 of the Act, have approached this Court by filing these Writ Petitions.
3. Mr.R.Singaravelan, learned Senior Counsel, representing Mr.D.Selvanayagam, learned counsel on record for the petitioners, would submit that the proceedings dated 08.01.1997 is for three metres width. There is a pathway, which is in existence for more than 100 years. The order passed by the Division Bench, on an earlier occasion, has not been taken note of. The petitioners have not been http://www.judis.nic.in put on notice, before the issuance of impugned notification. This Court has to balance the public interest as well as the private interest. The petitioners have given representations to the Government on 19.04.2010 and therefore, appropriate orders will have to be passed by directing the Government to look into the grievance of the petitioners and till such time, they will have to be permitted to use three metres pathway.
5. We have considered the above submissions made by the learned counsel on either side and perused the materials available on record.
6. Firstly, we will consider the submission made by the learned Senior Counsel for the petitioners on the existence of pathway as to whether it is three metres width or more. In any case, it cannot be one metre. Now, this contention has been specifically disputed in the counter affidavit filed by the fifth respondent. According to the fifth respondent, this is only one metre. We have perused the notification dated 08.01.1997. While it speaks about the length, it does not speak about the width. We are dealing with a case of recognizing the existing pathway. For making the position clear, we are inclined to http://www.judis.nic.in state that we are not dealing with any road, but, only a pathway, which is alone in existence. To that extent, the Judgment of the Division Bench will have to be understood. Even the Division Bench has not stated anything beyond that. It merely states that a Subordinate Officer cannot interpret or go into the validity of the order of the Higher Authority. Further, the order of the Division Bench also states that the Higher Authority can take a further decision, after due notice to the petitioners concerned. The order dated 08.01.1997 has to be taken as a mere permission and nothing beyond that. In any case, once a notification was issued and came into force, all other existing rights would get vanished. Fortunately, in respect of the petitioners, the respondents have shown benevolence in keeping one metre pathway. There cannot be a better way of destroying a forest than creating, permitting and recognizing a road.
7. Coming to the provisions of the Act, there is no need to issue notices to various parties. On the contrary, a claim has to be made by a person and such a claim will have to be adjudicated upon by the Forest Settlement Officer. Now, we are at the stage of a notification declaring the forest as reserved forest. Therefore, the petitioner,s having not made any claim before the Forest Settlement Officer, http://www.judis.nic.in cannot come before this Court challenging the notification issued under Section 16 of the Act on the premise that what has been given is only one metre width of pathway, which, as we have already stated above, can at best constitute a disputed question of fact. The same analogy will go the issue qua extent than the one granted.