WP/1770/1995 of THE BOMBAY BURMAH TRADING Vs DY.DIRECTOR on 27 December 2002

:ORDER

The Subject matter of these writ petitions is long pendingwith a chequered history and will probably continue to be so for some moretime in view of the pendency of the proceedings before the statutory authorities at various stages under the Tamil Nadu Forest Act, 1882,hereinafter described as "the Forest Act".

2. The petitioner is a Company incorporated under the Companies Act. The land in question comprises an extent of 3388.78 acres,which was part of Singampatti Zamin. By lease deed dated 12.2.1989 the Zamingranted the right to occupy in favour of the petitioner company for thepurpose of cultivating Coffee, Tea, Coco, Sincona, Cardamom, pepper, rubberand other products other than timber trees for a period of 99 years. With thecoming into f`orce of the Tamil Nadu Estates (Abolition and conversion ofryotwari) Act, hereinafter called Act 2 6 of 1948, the Board of Revenue by isorder dated 13.8.1958 declared that the Company was not entitled to any rightsor to remain in possession after 19.2.1952. The Board in exercise its powerunder Section 19-A of the said Act, directed that the lessee/petitioner shallremain in possession of the entire lease area for the rest of the lease period subject to all the conditions of lease. Certain additional terms andconditions were subsequently added alleged to be in public interest, asfollows:- " (i) The company shall not clear any portion of the catchment area ofKusanguli measuring 970 acres at the south east corner the lease area withinthe boundaries indicated by thick red line in sketch attached, as the clearfelling of this area will be detrimental to forest conservancy and will alsolead to soil erosion in the catchment area of the Manimuthar River;(ii) the said company shall, in the rest of the area leased out to it,arrange to clothe rapidly with vegetations any extent cleared by it and adoptand maintain effective measures for the prevention of soil erosion; and(iii) notwithstanding anything to the contrary contained in the leasedeed dated 12.2.1989, as subsequently amended, if the Company violates any ofthe terms and conditions of the lease and does not conform to the conditions(i) and (ii) specified above, the lease is liable to be cancelled by the StateGovernment and the State Government may re-enter and take possession of theentire lease area and the Company will not be entitled to any compensationwhatsoever thereof."

3. In the mean time, the Government also invoked its power

3. In the mean time, the Government also invoked its power under the Forest Act and issued a proclamation under Section 6 expressing itsintention to declare the area as reserved forest. The petitioners filed aClaim petition as provided under the Act and claimed rights of occupancy,ownership and other rights. The Forest Settlement Officer split the claiminto two separate petitions namely, Claim No.5 as regards the claim of rightof occupancy and Claim No.6 relating to the other rights such as right of way,etc. The Forest Settlement Officer allowed the claim of right of occupancy asclaimed by the petitioner and excluded the land from the limits of theproposed reserved Forest. The Government filed an appeal. The learnedDistrict Judge, Tirunelveli, allowed the appeal and remitted the proceedingsto the Forest Settlement Officer on the ground that the Department did nothave the opportunity for filing their counter statement. Both sides nowrepresent that the proceedings are still pending before the Forest SettlementOfficer. It is also admitted by the respondents that in view of the pendency of the proceedings on the Claim petition filed by the petitioners, nonotification has been issued under Section 16 of the Forest Act declaring theforest as reserved forest.

4. As stated earlier, the Board of Revenue by order dated 13.8.1958 , under Section 19-A of Act 26 of 1948, recognised the right of theCompany to remain in possession of the land till the end of the lease periodsubject to the conditions of lease and had also imposed certain otherconditions as extracted above. This was followed by execution of supplementallease agreements between the Government and the Company on various dates,namely, 31.12.1951, 1.12.1966, 16.8.1973 and 3.10.1981. Certain newconditions were added and last of the agreement dated 3.10.1981 stipulatedthat the lessee shall not clear any growth of trees in the area mentionedthereunder of an extent of 343.18 hectares and a corridor of a length of amile along the eastern side of Manimuthar river and the lessee should notviolate any of the conditions in the principal lease deed and the conditionssubsequently stipulated failing which the lease was liable to be cancelledwithout entitlement for compensation.

5. The above writ petitions are directed against some of the actions taken by the Government/Forest officials alleging that thepetitioners/Company was violating the terms of the lease and the conditionsimposed by the Government subsequently and that the Company had resorted toindiscriminate felling of the trees and doing acts of endangering the ecologyof the forest area and endangering life which require protection. Thefollowing are the reliefs prayed for in the respective writ petitions:-(i) In W.P.No.1770 of 1995 the petitioner questions the action of theGovernment collecting toll for the entry into the estate and usage of theBoard within the Estate which were in fact laid by the Company.(ii) W.P.No.2208 of 1995 is to restrain the respondents fromexercising the powers under Chapter II of the Forest Act and the provisions ofthe Wildlife Protection Act.

(iii) In W.P.Nos.4318 to 4320 of 1995, the petitioner is aggrieved bythe seizure of firewood which were effected by the Forest officials underMahazars dated 14.3.1995 and 15.3.1995. The Company seeks for certiorari toquash the said Mahazars and for directions to release the firewood which hadbeen allegedly seized illegally.

(iv) In W.P.No.5093 of 1995, the Company has prayed for a declarationthat Section 49-A to 49-G of the Forest Act are ultra vires Constitution ofIndia.

6. It is not necessary to deal with the pleadings by both

Conclusion

sides in each of the writ petitions as the legal issues raised by the partiesare one and the same. The necessary factual details can be referred to ifnecessary while dealing with t ve writ petitions. The main contention whichhas been raised in all the writ petitions is that the proceedings under theForest Act are not concluded as the claims under the Act by thepetitioner/Company are pending before the Forest Settlement Officer and nodeclaration had been issued under Section 16 of the Act. As such therespondents cannot seek to enforce any of the provisions under the Act. Norcan they invoke the Protection of the Wildlife Act, 1972. The various actions of the respondents which are impugned are without jurisdiction and in excessof the power available to them. The factual background of such actionalleging any violation by the petitioner of the provisions of the Forest Actand Wildlife Protection Act are factually incorrect and the actions of theForest officials are illegal, vindictive and causing great inconvenience andhindrance to the administration of the petitioner company.

7. Per contra, in the counter affidavit filed by the Government it it is contended that the Estate having been taken over under Act26 of 1948, the Government has become the proprietor of the land and duenotifications have been issued under the Forest Act to constitute and toinclude the lands in the reserved forest area. Hence, the provisions of theForest Act and Wildlife Protection Act have to be strictly implemented. Thesaid provisions have been invoked in public interest for the protection of theforest ecology and preservation of rare species of animals and birds. Thepetitioner had been indulging in indiscriminate felling of trees and carryingout activities which are detrimental to the forest ecology and endangering theanimals and birds.

8. In the above background, Mr.S.Gopalaratnam, learned Senior Counsel for the petitioner, has raised the following questions forconsideration:

(A) The notification issued under Section 19-A of Act 26 of 1948 isnot valid due to several reasons. Firstly, the order proceeds on amisconception as though the land leased to the petitioner by the Zamindar wasa forest land. The land was not a forest land as could be seen from theagreement dated 12.2.1929. Secondly, Section 19-A would apply only tonon-ryoti land and the lands in question are ryoti lands. Thirdly, even ifthe lease is to be held as only for nonagricultural purpose, under Section 19,the lessee was entitled to be in possession of the land subject to payment ofassessment or ground rent. Fourthly, the order was issued without any noticeor hearing of the petitioner and such unilateral exercise of powers was voidab initio. The said order deserves to be ignored and it is not necessary forthe petitioners to question the same by separate proceedings.

(B) The rights of the petitioner if traced in terms of the

(B) The rights of the petitioner if traced in terms of the provisions under the Tamil Nadu Estates Land Act 1 of 1908 and Act 26 of 1948, would signify that the rights of the petitioner are not merely that of alease holder for a specified period. Having regard to the definition of theexpressions "agricultural land holder" "private land" and "ryoti land" asdefined under Act 1 of 1908, certain valuable rights have accrued in favour ofthe petitioner such as the right of occupancy of ryoti land (Section 6) andother rights to the land holder in possession of the ryoti land includingpermanent right of occupancy. Reference is also made to the mining rightgiven to the petitioner under the lease deed. Under the provisions of the Act26 of 1948 the petitioner is a statutory tenant and is also entitled to thegrant of patta. Therefore, the order dated 13.8.1958 limiting the right ofthe petitioner to be in possession only up to the end of the lease period isillegal.

(C) The disputed area is not a forest area. The entire area was only a vacant land without any forest growth and leased out only to raiseplantation crops, coffee, tea, cardamom, etc. The area cannot also beincluded or declared as a reserve forest as they are not lands in possessionor at the disposal of the Government. Hence, the said lands cannot also besubject matter of a notification either as a sanctuary or as a reservedforest. In the counter filed by the respondents in W.P.No.1770 of 1995, thepetitioner's contention that the land was not at the disposal of theGovernment had been ignored and had not been denied.

(D) Admittedly, an enquiry into the claims of the petitioner under Forest Act was pending and unless and otherwise the land is declaredfinally to be at the disposal of the Government and final declaration is madeunder Section 16 declaring the area as reserved forest, the Forest officialscannot seek to enforce the provisions of the Forest Act. Reliance placed onSection 26 of the Forest Act and the Rules made thereunder for preventing anydamages being caused to the trees even in areas which had not yet beendeclared as reserved forest, was not available in the present case for thefollowing reasons:- The estate was earlier under the management of Court of Wards in viewof the proprietor being a minor at that time. The provision of Section 26 andthe Rules made thereunder were extended to and made applicable to the ZaminEstate only as long as the Zamin was under the management of Court of Wards.The estate was no longer under the management of Court of Wards and henceSection 26 will not apply to the petitioner's estate.

(E) The various complaints and allegations against the petitioner as indulging in violation of the forest ecology etc. have no basisat all and such allegations have been made in a vindictive manner. Thecomplaints filed against the petitioner company had been dismissed by theCriminal Courts. The respondents are trying to pressurise the Company throughpenal provisions by resorting to false allegations.

9. Per contra, learned Government Pleader contends that in these writ petitions, the petitioner cannot be heard to raise any contentionas regards their alleged rights under Act 1 of 1908 or Act 26 of 194 8. Therights if any, had become superseded and extinguished after the order passedby the Government under Section 19-A of Act 26 of 194 8. The said order hadbeen passed as early as 13.8.1958 and till date, the petitioner had not takenany steps questioning the said order. On the contrary, the petitioner hadaccepted the position of the land being vested with the Government and hadsubsequently executed supplemental agreements. Therefore, the plaintiff isnot entitled to any claim of permanent occupancy. After the order underSection 19-A had been passed, the land is vested with the Government and thepetitioner had only a permissive right to occupy subject to the conditionsimposed by the Government.

10. Though a declaration under Section 16 of the Forest Act,

10. Though a declaration under Section 16 of the Forest Act, had not been issued, Section 29 enables the Government to issue notificationfor regulating or prohibiting activities of clearing up of any forest land forcultivation or doing any act which will endanger the ecology or result inendangering the protected species of animals and birds. Learned Additional Government Pleader also took me through the statement of facts contained inthe various counter affidavits filed in the above writ petitions dealing withthe factual background alleging several commissions and omissions against thepetitioner/Company of violating conditions of lease and violations of theprovisions of the Forest Act and Wildlife Protection Act. The provisions ofWildlife Protection Act are applicable to the lands under the occupation ofthe petitioner. Reliance is placed on the judgment of the Supreme Court inT.N.G.THIRUMALAPAD v. UNION OF INDIA (1997 (2) S.C.C., 267) in support of thecontention that notwithstanding the applicability or otherwise of theprovisions of the various Statutes regulating the activities in forest areasand dealing with the Wildlife, specific directions have been issued to theTamil Nadu Government banning and placing restrictions on the movement of andcutting of trees and timber and such directions have to be obeyed.

11. Reference is also made to the judgment of P.Sathasivam,j.

in W.P.No.4178 of 1995 filed by the petitioner/Company dated 5.11.1999.According to learned Additional Government Pleader, the points raisedhereunder and the reliefs prayed for in these writ petitions were raised inthat writ petition also and the learned Judge had rendered certain findingsand issued directions which are binding on the petitioner and would alsooperate as res judicata. It is not open to the petitioner to raise thoseissues again.

12. In reply Mr.Gopalaratnam, learned Senior Counsel contended that the petitioner's land was not part of or included in theKalakadu reserved forest. A perusal of G.O.Ms.No.183 Forest Department dated6.3.1976 would reveal that the said notification under Section 18 of WildlifeProtection Act notifying the reserved forest as a sanctuary for protection ofWildlife did not at all relate to the petitioner's land. The name of theTaluk is given as Nanguneri while the petition/ properties is situate entirelyin Ambasamudram Taluk. The northern boundary is given as Ambasamudram Talukand hence, the G.O. is not applicable to the petitioner's land.

13. Learned Senior Counsel also contended that apart from the fact that in the agreement executed by the Zamindar also there is no referenceto any forest, there can be no presumption that a land adjoining a forest landshould also be a forest land, vide the judgment of a Division Bench of thisCourt in A.KARUPPAN SERVAI v. STATE OF MADRAS (85 L.W.71).

14. With reference to the order under Section 19-A of the Act 26 of 1948 dated 13.8.1958, passed without notice to the petitioner, learnedSenior Counsel referred to the landmark judgment of the House of Lords inRIDGE v. BALDWIN AND OTHERS (1963 (II) All. E.R., 66) in support of hiscontention that the Rules of audi alteram partem is one of the firstprinciples of justice and non-compliance of the same would render suchdecisions as null and void.

15. Reference was also made to the judgment of the Supreme Court in NAWAB KHAN v. STATE OF GUJARAT (A.I.R.1974 S.C., 1471). The SupremeCourt held that an order which infringes the Rule of audi alteram partem is anullity and such an order which is void may be directly and collaterally challenged in subsequent legal proceedings.

16. For the same proposition, reference was made to thejudgment of Ratnam,J. as he then was, in SUNDARARAJAN v. EDUCATIONALSOCIETY, TIRUNELVELI AND OTHERS (97 L.W., 410).

17. Reference was made to the judgment of a Division Bench of

this Court in KATHIRVELSAMY NAICKER v. SULTAN AM B.. & OTHERS (1946 (II)M.L.J., 371), relying on the observation that the word "agriculture" in Act 1of 1908 would include culti lantation crops also, as the said expression wouldinclude horticulture as well.

18. On the issue of rights of ryots/persons inducted into possession of lands for cultivation, learned Senior Counsel relied upon theobservation of the Division Bench in K.GOPALSAMY IYENGAR v. SRI ADMANATHASAMI DEVASTHANAM, THIRUVAVADUTHURAI (1957 (I)M.L.J., 104) holding that theland which can be cultivated systematically will be cultivable lands and theymust be deemed ryoti until contrary was proved.

19. On the appeal filed against the same judgment, in SRIADMANATHASAMI DEVASTHANAM v. GOPALSAMY IYENGAR (1964 (I) M.L.J., 42) theSupreme Court while dismissing the appeal, held that the land which can bebrought under cultivation was a cultivable land, and will be ryoti land under Section 3(16) of the Estates Land Act and where a person has been let intopossession of such lands, he will acquire permanent rights of occupancy underSection 6 of the Act.

20. Natesan,J. expressing similar views held in K.L.RAMAMOORTHY AND OTHERS v. STATE OF MADRAS (I.L.R. 1970 (II) Madras, 788)held that the interest of a ryot in the land in the Estate is separate anddistinct and he is a co-owner and is occasionally stated to be a coparcenerwith the landlord. He is not given any compensation as his ownership of'Kudiwaram' is not affected by taking over of the Estate.

21. In MARIABAKKIAM AMMAL & OTHERS v. DISTRICT FORESTOFFICER, DINDIGUL (1990 (II) L.W., 478) S.T.Ramalingam,J. had occasion toconsider and deal with a case of notification under Section 4 of the ForestAct, 1982 and held that in respect of the lands to which the provisions of Act26 of 1948 was applicable, the mere failure to obtain patta will not changethe character of ryoti land and it will continue to be ryoti land under Act 26of 1948.

22. Learned counsel would also further contend that the rightof the petitioner to question and establish his title to the property was intact and very much available to the petitioner. In SRI-LA-SRI SIVAPRAKASAPANDARAM v. T.PARVATHI (1998 (II) L.W., 188), the Supreme Court held thatunder the provisions of Tamil Nadu Minor Inam ( Abolition and Conversion ofryotwari) Act, 1963, the Civil Court's jurisdiction to adjudicate title of theproperty was not barred by the provisions of the said Act.

23. Following the said judgment, a Full Bench of this Court in SRINIVASAN & SIX OTHERS v. SRI MADYARJUNAESWARASAMY (1998 (II) L.W., 189 )held that a careful analysis of the provisions of the Abolition Laws will showthat the vesting on abolition is subject to the preexisting rights of theoccupants. It was further held that the scheme underlying the provisions ofthe Act dealing with the nature of the rights, the manner in which theauthorities were entitled to adjudicate such rights and the consequences ofsuch adjudication would disclose that it is not meant to be a substitute oralternate mode of resolution of the ordinary Civil right of the citizen intheir attempt to project claims for patta.

24. In STATE OF TAMIL NADU v. RAMALINGASWAMIGAL MADAM (1985

(4) S. C.C.,10) which was an appeal as against the judgment of this Court inK.L.M.RAMAMURTHY v. STATE OF MADRAS (I.L.R.1970 (2) Madras, 788), the SupremeCourt held that the Settlement Officer's decision regarding grant or refusalto grant ryotwari patta in respect of a land would not bar or exclude CivilCourt's jurisdiction to determine the nature of the land.

25. The above stated statement of facts and submissions of both sides give rise to the following points for consideration:-(I) Whether the petitioner has the right of permanent occupancyarising out of Act 1 of 1908 and Act 26 of 1948, notwithstanding the specificperiod of tenancy agreed between the Zamindar and the petitioner/Company andwhether the order of the Government under Section 19-A of Act 26 of 1948 dated13.8.1958 is valid and would disentitle the petitioner to claim such rights?(II) In the absence of a declaration under Section 16 of the ForestAct, is it open to the respondents to seek to enforce the provisions of thesaid Act?

(III) Whether the provision of the Forest Act 1882 and WildlifeProtection Act, 1972 are enforceable as against the petitioner?

26. Point No.I:- On this issue though elaborate arguments were advanced on behalf of the petitioner and contended that under theprovisions of the Act 1 of 1908 and Act 26 of 1948 the petitioner/Company isentitled to ryotwari patta and even in the absence of ryotwari patta isentitled to permanent occupancy rights and as regards the validity of theorder passed by the Government under Section 19-A of Act 26 of 1948, I aminclined to hold that this issue does not arise for consideration in the abovewrit petitions. The scope of the prayer as well as the pleadings in thesewrit petitions are restricted, namely, to what extent the provisions of theForest Act and Wildlife Protection Act could be enforced, whether toll couldbe collected etc. A perusal of the pleadings/affidavit in support of the writpetitions would also disclose that no such points relating to this issue havebeen taken. It is only in the reply affidavit filed by the petitioner inW.P.2208/1901 there is an attempt to demur that the petitioner being acultivating tenant/ryot would be entitled to patta in view of the provisionsunder Act 26 of 1948. I did hear elaborate arguments on this issue for tworeasons. The first reason is personal in wishing not to loose an opportunityfor myself to learn and scan the fascinating depths of the Tenure laws andAbolition laws by expert guidance and secondly to assess the extent to whichthe subject would have a bearing on the provisions of the Forest Act and the

27. Suffice it to say that in these writ petitions, neither

27. Suffice it to say that in these writ petitions, neither the proceedings under Act 1 of 1908 nor Act 26 of 1948, if any, are called inquestion. It is also pertinent to note that the authorities under the saidtwo Acts have not been impleaded as parties in these writ petitions, and assuch no enquiry can be contemplated nor any relief be granted in theirabsence. The respondents herein are not the appropriate authorities to dealwith the issues which could be raised under those two Acts. For the aforesaidreasons, as regards Point No.1, the same does not arise for consideration inthese writ petitions. The issue is left open to the petitioners, if theremedy is still available to them in a manner known to law, to be agitatedbefore the appropriate forum. I am not therefore, referring to any of thesubmissions or the rulings relied on in the said context. I am also unable toentertain the contention that the order under Section 19-A of the Act was anullity and therefore, it was not necessary to seek for any declaration andthat such order could be questioned in a collateral proceeding as between thesame parties. Even assuming that the said order is a nullity, in this case,though the respondent herein as well as in a proceeding under Act 1 of 1908and Act 26 of 1948 will be only the State of Tamil Nadu, yet in the absence ofthe necessary parties, namely the authorities under the said two Acts, it willnot be possible to adjudicate any issue or issues arising thereunder.

28. For the aforesaid reasons, as regards Point No.1, the same does not arise for consideration in these writ petitions. On the samereasons, it is also not necessary to consider the questions as to whetherSection 19 and 19-A of Act 26 of 1948 enjoy the protection of Article 31-B ofthe Constitution for the reason that Tamil Nadu (Madras) Act 44 of 1956 bywhich Section 19 was amended, had not been added to the IXth Schedule to theConstitution.

29. Point No.II & III: The Scheme of Chapter II of the Forest Act shows that the Government has the power to constitute any land atthe disposal of the Government as a Reserved Forest. The expression " land atthe disposal of the Government" is defined under Section 2 of the Act, asfollows:- "Land at the disposal of Government:- "Land at the disposal of Government"includes all unoccupied land, whether assessed or unassessed; but does notinclude land, the property of land-holders as defined by section I of Act VIIIof 1865, (Tamil Nadu) (namely), all persons holding under a sanadmilkiyatistimrar; all other zamindars, short riyamdars, jagirdars; inamdarsand all persons farming lands from the above persons or farming the landrevenue under Government; also all holders of land under riyotwar settlements,or in any way subject to the payment of land-revenue, direct to Government andall other registered holders of land in proprietary right;"

30. A perusal of the definition discloses that an occupied land cannot be brought under the definition. Various other categories oflands are also excluded inclusive of land held by persons who are cultivatingthe lands from zamindars, short riyamdars, Jagirdars, Inamdars and land which

is subject to payment of land revenue. Therefore, it is for the ForestSettlement Officer to go into the entire issues and find out whether it is aland at the disposal of the Government or not. But, the scheme of the Actdoes not appear to restrict the power of the Government also to bring alllands other than the lands at the disposal of the Government for the purposeof constituting a Reserved Forest. Even the lands over which an individualmay have ownership or occupancy right can also be included and constituted asa Reserved Forest. This would however be subject to such person making aclaim before the Forest Settlement Officer under Section 8, who will conductan enquiry under Section 9. Under Section 10 he shall deal with such claimsand Forest Settlement Officer could either come to an agreement with theclaimant for the surrender of his right or exclude the land from the limits ofthe proposed reserved forest or to proceed to acquire the same under theprovision of the Land Acquisition Act. This would imply that even if the landis not at the disposal of the Government and is a land over which anindividual has proprietary or occupancy rights, such land could also be takenover by payment of compensation as provided under the Land Acquisition Act.After the claims are adjudicated by the Forest Settlement Officer and by theAppellate Authority (District Judge) if there is an appeal, and if the periodfor filing claims had lapsed, a notification has to be issued under Section 16declaring the area/ forest as Reserved Forest. These provisions would implythat unless a declaration is issued under Section 16, the land in questioncannot be treated as a Reserved Forest. Consequently, the provisions of theAct vesting control over the area on the Forest Department to invoke penalprovisions etc. could be enforced only after a declaration is issued underSection 16. Admittedly, in these cases, enquiry into the claims of thepetitioner has not yet been completed and no declaration has also been issuedunder Section 16. In this back ground we have to see what is the extent towhich the Government/Forest Department can seek to exercise any control overthe land in dispute and whether actions taken by the Government in these caseswhich are impugned in these writ petitions could be sustained.

31. As regards the supervisory power and penal provisions envisaged under Chapter II, III and IV of the Act in the case of ReservedForest, or lands proposed to be constituted as Reserve Forest, it is obviousthat the said provisions cannot be invoked in respect of areas which have notbeen declared under Section 16 of the Act. The said provisions can be appliedonly to the areas declared as Reserved Forest. But Chapter V contemplatespower being vested with the Government to have control over the Forest landwhich are not at the disposal of the Government, for regulating, preventing,breaking up or clearing the forest area for the purpose of cultivation andimpose restrictions in order to ensure protection against storms, rollingstones, floods, avalanches for the preservation of soil on the ridges andslope and for prevention of land slip, land erosion for maintenance of watersupply in springs, rivers and tanks, for the protection of the roads, bridges,railways and other lines of communications etc. Such power can be exercisedeven in respect of lands not declared as Reserve Forest. The Government isgiven the power to direct the owners of such land to comply with the saiddirections and instructions and in the event of the owner not complying withor violating such instructions, under Section 30, the Government can take oversuch land either on lease or acquire the land. It is significant to note that

no other form of control or penal action or imposition of penalty iscontemplated under Chapter IV, if there is a violation of the instructions anddirections by the Government. Another pre-requisite to invoke Chapter IV, isthat there should be a notification in the Official Gazette of the concernedDistricts bringing the land under the coverage of Chapter IV. No contentionwas raised before me by the respondent claiming any such notification havingbeen issued under Section 29 of the Forest Act in respect of the petitionlands. Nor was any Government order in the said context was placed before me.A compendium of the Government Orders were filed by the respondents during thecourse of argument, only in the context of declaring Kalakad Reserved forestas a Wildlife Sanctuary to which reference would be made later. It is truethat during the year 1937 on the request of the manager of the SingampattiEstate which was at that time under the management of Court of Wards while theProprietor/Zamindar was a minor, the Government issued Notification dated23.8.1937 under Section 26 of the Act extending the provisions of that Sectionto the petitioner land. But as the notification itself had made it clear itshall remain in force so long as the estate was under the management of Courtof Wards. There is also no dispute over the fact that the control by Court ofWards ended as on 29.4.1952. Therefore, the notification dated 23.8.193 7under Section 26 of the Act cannot be relied upon by the Government toexercise any control either under Chapter III or Chapter IV of the Act.

32. The other Chapters under the Forest Act deal with the power of the Government to control and regulate transit of timber, prohibitionof import and export of timber, possession of sandalwood, disposal of timberetc. These provisions would appear to govern all types of lands private orlands at the disposal of the Government. The applicability of Chapter V doesnot depend on the declaration to be made under Section 16 declaring the areaas Reserve Forest. Further, under Section 54 of the Act, operation of otherlaws are not barred and there is no bar for prosecuting a person under anyother law in force constituting a forest offence.

33. Even otherwise, the directions and guidelines issued by the Supreme Court in 1997 (2) S.C.C., 267, supra, would apply to any forestirrespective of the ownership especially in the context of Tamil Nadu. Thatdecision was rendered after the filing of these writ petitions. It is notknown as to whether the State Government had constituted the Committee toidentify the areas/forest which require to be regulated and controlled. TheSupreme Court had also stated that there will be a complete ban on the fellingof forest trees in all the forest area.

34. The next question which arises for consideration is as regards the applicability of the provisions of the Wildlife Protection Act, 1972. The Government mainly relies on G.O.Ms.No.183 Forest Department, dated6.3.1976 declaring Kalakad reserved forest as a Wildlife Sanctury andG.O.Ms.No.28, Environment and Forest Department, dated 5.1.1989 sanctioningcontinuance of Kalakadu - Mundanthurai Tiger Reserved Scheme,known as "ProjectTiger" and according to the Government the petitioner's lands are therefore,covered by the provisions of the Wildlife Protection Act.

35. A perusal of Central Act 53 of 1972 presents no

difficulty as regards the right of the Government to declare by notificationto constitute any area other than the area comprised in a reserved forest, forthe purpose of protecting, propagating Wildlife or its environment.Therefore, the provisions are similar to those of under Forest Act whereby inthe context of the rights of the owners/occupants, their claims are to bedetermined by the Collector after due enquiry under Section 22 of the Act.Then the process has to be followed by a final declaration of the area as aSanctuary under Section 26-A of the Act. At this stage, it may be mentionedthat it is not the case of the Government that any final declaration has beenissued under Section 26-A of the Act. Only a notification under Section 18 ofthe Act, has been issued.

36. The above is the legal background in which the reliefs as prayed for in each of the writ petitions has to be examined in the light ofthe facts disclosed by both sides.

37. In this Writ Petition the petitioner has prayed for quashing the letter by the Deputy Director "Project Tiger", Ambasamudram,dated 17.1.1995, calling upon the petitioner to explain how toll charges werecollected by the petitioners and informing the petitioner that a Board hasbeen erected by the petitioners near Thalayanai had been removed as the areacame within "Tiger Project" area owned by the Government.

38. To adjudicate upon the claims made by the Government, it is necessary to find as to whether a proper declaration either under theprovisions of the Tamil Nadu Forest Act or under the Wildlife Protection Acthad been issued, so as to enable the respondents to exercise any power orcontrol over the petitioner's land. The facts analysed above will disclosethat the enquiry under Chapter II of the Forest Act has not been completed andno declaration has also been made under Section 16 of the Act. Therefore, theForest Department cannot seek to exercise any control over the disputedproperty as a Reserved Forest. It is not sufficient for the Government tokeep on expressing their anxiety or concern to protect the forest wealth or topreserve the wild animals and taking control over the areas which are requiredfor preservation of the ecology. The Act provides wide power to theGovernment to take over such areas subject to payment of compensation in thecase of the lands over which a claimant under Section 8 may have right ofoccupancy or of ownership. There is no explanation by the Government as towhy there is unnecessary delay in concluding the enquiry under Chapter II andto issue a declaration under Section 16. Without doing so, it is clear thatthe Government cannot seek to exercise any control over the property, otherthan the power which could be exercised under Chapter V or in terms of thedirections of the Supreme Court in 1977 (2) S.C.C., 267, or in terms of theagreement between the petitioner and the Government.

39. In the context of the right to collect toll, as against the assertion of the petitioners, that all the roads inside their area werelaid by them at their cost, there is no specific denial by the respondents.The only claim by the respondents is that the roads which are subjected toimposition of toll, now belongs to the Government. This controversy between

the parties is really meaningless. The area held on lease by thepetitioner/company is well defined under the lease deed. No controversy hasbeen raised over the identity of the area entrusted to the petitioner/companyunder the lease deed. If the roads had been laid by the lessee and if theroads are within their lease hold area, they are entitled to collect toll andthe Government cannot prevent them from doing so unless and otherwise theentire estate has been taken over by the Government as a Reserved Forest afterdue declaration under Section 16 of the Act. Till then, the Government cannotseek to enforce such a right either to collect toll by themselves or toprevent the petitioner from collecting toll. Even in the context of the claimby the Government that the Estate had become vested with them and the land isclaimed to have become Government property by virtue of the notificationissued under Section 19-A of Act 2 6 of 1948 dated 13.8.1958, the rights ofthe lessees/petitionercompany to be in possession of the property is admittedand allowed to subsist till the completion of the period of lease, subjectonly to a series of supplemental agreements executed between the Governmentand the petitioner. It is not the case of learned Additional GovernmentPleader that any of the supplemental lease agreements stipulate that thelessee shall not collect toll charges for the roads which the lessee had laidat their own expenses. Apart from the claim of the petitioners that they hadlaid the roads at their own expense, it is further claimed that even as ondate they are maintaining the roads at their own expense. These contentionsare not denied by the respondents. The fact that the petitioners were enabledto lay the roads by themselves is also clear from the lease deed dated12.12.1929. Likewise, there can be no interference with the right of theGovernment to collect toll in respect of the roads laid by them and which donot fall within the area covered under the lease in favour of the petitioner.

40. As stated earlier, the attempt on the part of theGovernment to interfere with the right of the petitioner to enjoy the propertyin a peaceful manner subject only to any restriction which may be containedunder the agreement and supplemental agreements, cannot at all be appreciatedin the absence of a declaration under Section 16 of the Act.

41. As regards the controversy as to whether G.O.Ms.No.183

Forest and Fisheries Department dated 6.3.1976 approving the proposals of theChief Conservator of Forest to notify Kalakadu Reserved Forest as a sanctuaryfor the protection and development of Wildlife, in the said Government Orderalso, the negligence on the part of the respondents is apparent. The positiveassertion of the petitioner is that their estate is comprised only withinAmbasamudram Taluk in terms of the lease deed in their favour and also thesupplemental agreements. But the schedule attached to the said GovernmentOrder (G.O.183) and the boundary description thereon also appear to be limitedto areas within Nanguneri Taluk alone. Ambasamudram area is described as thenorthern boundary. No explanation is forthcoming as to how the saidnotification can be applied to the lands in the possession of thepetitioner-company. This goes to the root of the matter as regards theapplicability of the said Government Orders issued under Section 18(1) of theWildlife Protection Act, 1972, which is claimed by the Government as beingapplicable to petitioner's land. Apart from the description of the propertyin the schedule and the boundary description, the very coverage of the

Arguments

notification appears to be limited to " Kalakadu Reserved Forest". Whenadmittedly no declaration has been issued under Section 16 of the Forest Act,it is impossible to treat the petitioner's land as a Reserved Forest.

42. It is further relevant to point out that it is not the contention of the Government that any declaration has been issued underSection 26-A of the Wildlife Protection Act. As I had mentioned earlier, thedeclaration to be made under Section 26-A is similar to the declaration to bemade under Section 16 of the Forest Act. No contention has been raised beforeme regarding any declaration having been issued under Section 26-A of the Actwith reference to the petitioner's land. The expression "sanctuary" has beendescribed under Section 2(2 6) of the Wildlife Protection Act as an areadeclared under Section 2 6-A or 38 or deemed under Section 44(3) to bedeclared as Wildlife Sanctuary. No such declaration by the Government underSection 38 of the Act has been brought to my notice.

43. There appears to be yet another anomaly in the declaration issued under Section 18 of the Wildlife Protection Act. A perusalof Section 18 of the Act shows that the provision is contemplated only forareas other than the reserved forests. A perusal of the Government Orderdated 6.3.1976 shows that it is intended only to cover Kalakadu reservedforest. This anomaly coupled with the vague and incorrect description of theproperty in the Schedule and the Boundary description is to the advantage ofthe petitioner. It is also seen that in the notification under Section 6 ofthe Forest Act published in the Gazette dated 15.2.1978 also, petitioner'sproperty is shown as situated in Ambasamudram Taluk.

44. Therefore, I am inclined to hold that the impugned order is liable to be quashed, considering that no declaration has been issuedeither under Section 16 of the Forest Act or under Section 26-A of the WildLife Protection Act. However, as observed earlier, Chapter V of the ForestAct is very much applicable. Likewise, as far as Wild Life Protection Act isconcerned, though I have held that the claim that the petitioner land had beennotified as a Sanctuary cannot be sustained, yet, other provisions if any,which would apply generally to areas other than sanctuaries, would apply tothe petitioner's land.

45. In this Writ Petition the petitioner prays for the issueof a writ of mandamus to forbear the first respondent from exercising thepowers under Chapter II of the Forest Act and the provisions of the WildlifeProtection Act, 1972 to the areas covered under the proclamation dated12.4.1978 issued under Section 16 of the Forest Act.

46. There appears to be a mistake in the second part of the prayer namely, "proclamation dated 12.4.1978 under Section 16 of the TamilNadu Forest Act". Probably it refers to proclamation under Section 6 of theAct.

47. As far as the prayer to forbear the respondents from exercising the powers under Chapter II of the Tamil Nadu Forest Act is concerned, I am inclined to hold that the petitioner is not entitled tomaintain such a relief. There cannot be a mandamus to restrain a statutory orpublic authority from discharging their mandatory duties under an Act ofLegislature. No case is also made out by the petitioner to sustain such anextraordinary relief as prayed for by the petitioner.

48. No public authority can be restrained from performing

Relief

their legal duties envisaged under an Act. If any action thus taken by theconcerned authority is violative of any of the statutory or Constitutionalprovisions, it is always open to the aggrieved person to question the same inaccordance with law. More over, the enquiry under the provisions of theChapter II of the Forest Act is under progress and there is no justificationfor stalling proceedings. The rights of the petitioners are adequatelyensured considering that the petitioner has every right to project theirgrievances before the Forest Settlement Officer, before whom the enquiry is atpresent pending. The petitioner is also entitled for a hearing. Thepetitioner can raise all grounds against the proposals under Forest Act orunder the Wild Life Protection Act before the appropriate authorities whowould be discharging quasi judicial function, and is bound to give reasons forpassing any order. The order to be passed under the Forest Act is alsosubject to an appellate remedy before the District Court under Section 14 ofthe Forest Act.

49. Even in the context of the claims of the petitioner on the basis of the provisions of Act 1 of 1908 and Act 26 of 1948, it is up tothe petitioners to pursue his remedies/rights flowing under the said Actsbefore the appropriate forum and the respondents herein are not theappropriate authorities who could deal with any of the claims of thepetitioner, under Act 1 of 1908 or Act 26 of 1948. The respondents cannot berestrained from discharging their functions under Forest Act and Wild LifeProtection Act when the petitioner/company has not yet taken any proceedingunder Act 1 of 1908 and Act 26 of 1948. I have already held that in theabsence of necessary parties, it is not possible to go into the claims arisingunder the said two Acts.

W.P.Nos.4318 to 4320 of 1995

50. In these writ petitions, the attempt of the petitioners is to question the seizure of the firewood which were effected by the Forestofficials under various Mahazars and seeking for direction to release thefirewood.

51. In this context as already stated, though the Forest officials may not be entitled to exercise their rights under Chapter II andChapter III of the Forest Act, without issuing declaration under Section 16,the Government has certainly the right to control the transit of timber asprovided under Chapter V of the Forest Act and also in terms of the judgmentof the Supreme Court mentioned above and the terms of the lease deed. Thepower of the Government to do so, is not dependant only on the lands beingdeclared as reserved forest under Chapter II of the Act. Therefore, anyaction taken by the respondents in the context of the transit of timber wouldbe an issue to be considered on the merits and facts of the charges framed or

to be framed against the petitioners and cannot be gone into in a writpetition. In the event of any such proceeding being initiated it is up to thepetitioners to pursue their remedies as provided under the relevant provisionsand the petitioners cannot seek for any pre-emptive relief in the saidcontext. In fact, it was also brought to the notice of the Court that thepetitioners had been subjected to certain proceedings before the CriminalCourt and the petitioners are free to pursue their defence/remedies as may beopen to them in the said context.

52. Therefore, these writ petitions are also liable to be dismissed.

53. The petitioner has prayed for a declaration that Section 49-A to 49-G of the Tamil Nadu Forest Act are ultra vires the Constitution.

54. The validity of the provisions have already been considered by P.Shanmugam,J. in a batch of Writ Petitions in W.P.Nos.19913 of1992 etc., praying for a declaration that Sections 42(2), 49-A, 49-B and 49(G) of the Tamil Nadu Forest Act are ultra vires. The writ petitions weredismissed by order dated 26.10.1999 upholding the provisions. Therefore, theabove writ petition is also liable to be dismissed.

55. An objection was taken by learned Additional Government Pleader to the effect that the judgment of P.Sathasivam,J. in W.P.No.4178 of1995 dated 5.11.1999, covers the same issues raised in these writ petitionsand therefore, the said order would operate as res judicata. I am unable tosustain this contention. The prayer in the writ petition was for a writ ofprohibition to restrain the Forest Settlement Officer from exercising hispowers in conducting the enquiry under Section 9 of the Forest Act. As couldbe seen from paragraph No.7 of the order, only two issues arose forconsideration. Firstly, whether the Enquiry could be preceded with in theabsence of a proclamation under Section 6 of the Act. Secondly, theTahsildar, who had exercised powers under Section 4(c) of the Act, who is theauthority to conduct the enquiry, had filed a counter in the writ petitionsand whether it would be reasonable to expect him to conduct a proper enquiry.The learned Judge held on the first point that there has been a proclamationunder Section 6 of the Act, dated 15.12.1978 and there was no need for freshproclamation. On the second point, the learned Judge agreed with theobjections on behalf of the petitioner and held that the Tahsildar shouldconsider the issues independently without reference to the counter affidavitfiled by him . All other issues raised by the petitioner were left open.Therefore, I fail to understand as to how the said judgment could operate asres judicata. I have also held that the issues relevant for the enquiry underSection 9 are left open and the enquiry should be preceded with. Therefore, Ido not find any substance in this objection.

56. My conclusions above are summarised as follows:-

I. The rights of the petitioner if any, under Act 1 of 1908 and Act26 of 1948 have to be raised and agitated before the forum specified underthose Acts and such issues are left open.

II. In the absence of the declaration under Section 16 of the ForestAct, it is not possible for the Government to enforce Chapters II, III and IVof the Act. The roads having been laid by the petitioner and the petitioneris entitled to collect toll for the roads and the respondents cannot preventthe same.

III. Action can be contemplated under Chapter V and in terms of thejudgment of the Supreme Court in 1997 (2) S.C.C., 267, and in terms of Section54 of the Forest Act and also in terms of the agreement between the parties.

IV. Whatever might have been the intention or the expectation of theGovernment in issuing G.O.Ms.No.183, Forest and Fisheries Department dated6.3.1976 under Section 18 (1) of the Wildlife Protection Act, 1972 declaringKalakadu Reserved Forest as a Wildlife Sanctuary, cannot apply to thepetitioner's land having regard to the Schedule and the Boundary descriptionappended to the G.O. Further, no declaration has been issued under Section26-A of the Act. Consequently, action contemplated under the provisions ofthe said Act, treating the petitioner's land as a sanctuary cannot besustained. In other respects, the provisions of the Act if any, applicablegenerally to areas other than sanctuatries and closed areas etc. can beapplied to the petitioner's land.

V. Any penal action taken or to be taken against the petitioner shallbe subject to the aforesaid conclusions and has to be defended by thepetitioner on merits and before the appropriate forum.

VI. The Forest Settlement Officer shall proceed with the enquiryunder Section 9 of the Act which is pending with him and conclude asexpeditiously as possible not later than six months from the date of receiptof a copy of this order.

VII. Consequently, while W.P.No.1770 of 1995 stands allowed, allother writ petitions namely, W.P.Nos.2208, 4318, 4319, 4320 and 5093 aredismissed subject to the observations as above. No costs.

57. While parting with these cases, I cannot fail to refer tothe lethargic attitude exhibited by the Forest Department/officials havingcaused unnecessary delay in implementing the proposals of the Government.There is no use in loudly declaring their intention to implement theprovisions of the Forest Act and Wildlife Protection Act and complaining aboutseveral commissions and omissions by the petitioners and similarly placedpersons and taking inappropriate a'ction without proper statutory backing.The policy of afforestation and preservation of ecology, flora, and fauna areensured under the said Acts with enormous powers to the Government and evenlands which are not already forest or sanctuaries and not at the disposal ofthe Government, can also be brought under the provisions of both Acts, if therequirements under the Acts are complied with sincerely and promptly and onpayment of compensation, if there are sustainable claims. In these cases,there has been no final declaration under Section 16 of the Forest Act, norunder Section 26-A of the Wildlife Protection Act. Even in G.O.Ms.No.183dated 6.3.1976, if the object was really to include the petitioner's land as a sanctuary, there is a gross negligence in not taking due care in describingthe Schedule and the Boundary description in a proper manner. There is alsono justification for keeping the enquiry under Section 9 of the Act before theForest Settlement Officer pending without disposal till now for several years.Interim order, if any, granted shall stand vacated and all pending WPMPs willstand closed.

Index: Yes.Internet: Yes.sai/-

To1. The Deputy Director,Project Tiger,MundanthuraiKazhakadu Sanctuary,Ambasamudram,Nellai Kattabhoman District.

2. The Field Director (Project Tiger),Conservator of Forest,62, James Cottage,Tirunelveli - 627 007.