THE HONOURABLE MR v. The Secretary to Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.11.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELUWrit Appeal No.1593 of 1999 andWAMP.No.321 of 20071.N.Mangalchand Vaid2.M.Durgachand Vaid3.M.Lakshmichand Vaid4.M.Guruchand Vaid5.M.Huckmachand Vaid ... Appellants(the 5th appellant was declared as major and his father/the 1st appellant was discharged from the guardianship by the order of the Court dated 11.8.1999 made in CMP.13047 & 13048/1999)Vs.1.The Secretary to Government of Tamil Nadu, Forests and Fisheries Department, Fort St.George, Madras-600009.2.The Collector of the Nilgiris, Uthagamandalam3.The Personal Assistant (General) to the Collector of the Nilgiris and the Secretary of the Committee constituted under the TNPPF Act, Udhagamandalam4.The District Forest Officer, Gudalur Division, Calicut Road, Gudalur, Nilgiris-643221.... RespondentsWrit Appeal filed under Clause 15 of the Letters Patent asagainst the order of the learned single Judge dated 3.6.1999 made inW.P.No.17943 of 1990 presented under Article 226 of the Constitutionof India, to issue a Writ of Certiorarified Mandamus calling for therecords of the 2nd Respondent relating for the impugned notificationdated 1.10.1981 published by the Nilgiris District, Gazette No.9, https://hcservices.ecourts.gov.in/hcservices/ page 32 and quash the same and further direct the Respondents todirect invoking the provisions of the Tamil Nadu Prevention ofPrivate Forests Act in respect of these Lands and trees thereon whichare notified and registered coffee plantations.For appellants: Mr.A.L.Somayaji, Senior Counsel for Mr.Satish ParasaranFor respondents: Mr.S.Ramaswamy, AAG assisted by Mr.S.Rajasekar, Spl.G.P. (Forest)JUDGMENTELIPE DHARMA RAO, J.The petitioners are the joint owners of lands in S.No.236/8A etc.of Masinagudi village, Ootacamund Taluk, Nilgiris District, in anextent of 883.68 acres, named as Singara Estate. The major portionof the said lands is being used to raise coffee plantations besidescultivating pepper plantation, fruit orchards etc. The petitionershave planted shade trees for the purpose of the coffee plantationsand rearing the same to provide shade for the coffee plants. Whileso, the Government of Tamil Nadu issued a Notification dated1.10.1981, which was published in the Nilgiris District Gazette No.9at Page No.32, under the Tamil Nadu Preservation of Private ForestsAct, 1949, as amended by Act 68 of 1979, declaring that the privateforests specified in the schedule appended thereto are to be'forests' for the purpose of the said Acts. The schedule appended tothe said Notification contains the properties now belong jointly tothe petitioners. This notification is impugned by the petitioners,by filing W.P.No.17943 of 1990 before this Court.2. The case of the petitioners is that the lands are ryotwaripatta lands, having been acquired by them under a Will left by thefather of the first petitioner and the grand father of the otherpetitioners and that pattas have also been granted for these lands asearly as in 1885 to the predecessors-in-title of the petitioners,which had later been transferred and issued in the names of all thepetitioners.3. The petitioners further state that it is essential that thefully grown shade trees, which they have grown for providing shade tothe coffee plantations, which get silviculturally matured, to beremoved from time to time as otherwise they would not only cease toserve the purpose for which they are planted but would also causedanger and havoc to the coffee plantations, if they fall bythemselves. The petitioners would further submit that thedeclaration of their lands as 'forest' is absolutely illegal and https://hcservices.ecourts.gov.in/hcservices/ further submit that no notice or opportunity was given by the secondrespondent before issuing the impugned notification.4. The respondents have filed a counter affidavit wherein theyhave admitted that the lands are ryotwari patta lands and belongs tothe father of the first petitioner. They would further submit thatto preserve the private forest wealth and to prevent theindiscriminate destruction of private forest and interference withcustomary and prescriptive rights therein, the Government of TamilNadu had enacted the Preservation of Private Forests Act, which isnot prohibitory in nature but only preventive in nature andtherefore, the petitioners can apply to the competitive authoritiesfor permission to cut and remove the trees and there is absolutely nodenial of any rights of the petitioners to carry out any improvementswhich would not amount to denude the forest and that the provisionsof the Act only stipulate certain guidelines and restrictions toregulate the indiscriminate cutting of the trees in a private forest.They have also stated that all the formalities with regard to thenotifications were dealt with by the father of the first petitionerMr.Nathamal Vaid and it is not mandatory on the part of therespondents to issue any prior notice to the petitioners before thenotification and the notification was issued only as per theprovisions of the Act and therefore the notification is absolutelyvalid and within the jurisdiction of the respondents. 5. The respondents would further submit that there is nothingcontrary in the Act as alleged by the petitioner and the notificationissued by the Collector of the District under Section (iii) willapply only to the private patta lands owned by private individuals;that the petitioners can get permission from the Committee to cut thetrees which are silviculturally matured and obtaining such permissionwill not amount to violation of any fundamental rights as alleged;that the purpose and object of the Act is only to preserve the forestin the larger interest of nation and therefore, even though the landsare their own private lands, they cannot be permitted to violate theprovisions of the Act and the Government has framed certain Rules inthe Act without affecting the rights of the individuals and all theprovisions of the Act have been enacted after careful considerationand therefore there is nothing arbitrary in the Act. On suchgrounds, the respondents prayed to dismiss the writ petition.6. The learned single Judge has dismissed the writ petitionupholding the contentions raised on the part of the respondents,resulting in filing of this writ appeal by the writ petitioners.7. During the pendency of this appeal, the appellants have takenout WAMP.No.321 of 2007 raising additional grounds such as that thevery notification is liable to be quashed on the short ground that ithas been issued under an Act, which is not applicable and cannot bemade applicable in respect of the appellants' lands. They would https://hcservices.ecourts.gov.in/hcservices/ state that their lands situate in Udhagamandalam Taluk, NilgirisDistrict, which are governed by the Tamil Nadu Hill Areas (Preventionof Trees) Act, 1955 by G.O.Ms.No.1225, dated 12.12.1985 and this Actbeing a special law, will prevail over a general law viz. The TamilNadu Preservation of Private Forest Act, 1949, under which theimpugned notification was issued. They would also submit that theimpugned notification is also liable to be quashed for the reasonthat it has been published not in the Tamil Nadu Government Gazetteas required, but in the Nilgiris District Gazette alone; thatinasmuch as the impugned notification has been issued not by theCommittee but by the second respondent individually, the impugnednotification does not conform to the mandatory requirements under thePrivate Forests Act and hence is liable to be struck down as ultravires the provisions of the said Act. 8. A counter affidavit has been filed by the respondents to theadditional grounds raised by the petitioners, as not permitted.9. However, in order to give a quietus to the entire issue andsince the additional grounds raised herein by the petitioners arenothing but the extension of their grounds urged before the learnedsingle Judge, we permit the petitioners/appellants to raise theadditional grounds and thus allowing WAMP.No.321 of 2007, now weshall proceed to discuss and decide the main issues involved in thecase.10. The object of the Tamil Nadu Preservation of Private ForestsAct, 1949 is: "to prevent the indiscriminate destruction of privateforests and interference with customary and prescriptiverights therein and for certain other purposes" 11. As could be seen from Section 1(2)(ii) of the said Act, itapplies to 'private forests situated in other areas in the State ofTamil Nadu and having a contiguous area exceeding 2 hectares whichmay be declared by the Committee to be forests for the purposes ofthis Act, by notification, in the District Gazette, but does notapply to reserved forests constituted under the Tamil Nadu ForestAct, 1882, and lands at the disposal of the Government as defined inthat Act.' The explanation to this sub-section reads as follows:"A private forest exceeding 2 hectares in extent shall notcease to be such by reason only on the fact that, in aportion thereof, trees, shrubs or reeds are felled or cutwith or without the permission of the committee or landsare cultivated, or rocks, roads, tanks, rivers or the likeexist; nor shall the area of such forest cease to becontiguous by reason only of the existence of all or any ofthe aforesaid circumstances." https://hcservices.ecourts.gov.in/hcservices/

12. Admittedly, the lands belonging to the petitioners aresituated in Nilgiris District. As per G.O.Ms.No.1225, dated1.12.1985, the Government has notified the entire Nilgiris Districtas 'hill area' for the purpose of the said Act and therefore, thepetitioners would contend that only the Tamil Nadu Hill Areas(Preservation of Trees) Act, 1955 would apply to their case and notTamil Nadu Preservation of Private Forests Act, 1949, under which thenotification has been issued. It is to be mentioned that theimpugned notification dated 1.10.1981 was issued long prior to thisG.O.Ms.No.1225, dated 1.12.1985. Therefore, prior to thisnotification, only the Tamil Nadu Preservation of Forests Act wouldapply to the Nilgiris District, where the lands of the appellantssituate. Therefore, the contention of the appellants that thenotification should have been issued only under Tamil Nadu Hill Area(Preservation of Trees) Act has no legs to stand before us.Therefore, this contention raised on the part of the appellants isrejected.13. At this juncture, we feel it appropriate to quote the objectof the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955,which is an 'Act to provide for the regulation of the cutting oftrees and the cultivation of land in hill areas in the State of TamilNadu' and it has been enacted since 'there has been indiscriminatecutting of trees in hill stations in the State of Tamil Naduinvolving large-scale deforestation and resulting in considerablesoil erosion and whereas with a view to prevent deforestation andsoil erosion and also to preserve the special characteristics of thehill areas as regards landscape, vegetal cover and climate, it isnecessary to regulate the cutting trees also the cultivation of landin hill areas in the State of Tamil Nadu'.14. From a comparative reading of the applicability clauses inboth the Acts, it is clear that while the Tamil Nadu Preservation ofPrivate Forests Act, 1949, would apply to private forests having acontiguous area exceeding two hectares, which may be declared by theCommittee to be forests besides the forests situated in estates asdefined in the Tamil Nadu Estate Land Act, 1938, the Tamil Nadu HillAreas (Preservation of Trees) Act, applies to all hill areas in theState. Admittedly, the petitioners lands are in a contiguous area ofexceeding two hectares. Therefore, there is no bar for theGovernment in declaring such a contiguous area exceeding two hectaresof land as a 'private forest'.15. In support of his arguments that the Hill Areas Act is aSpecial Act and the Private Forests Act being a general Act, the HillAreas Act would have an overriding effect, the learned senior counselfor the appellants would also rely on an order passed by the learnedsingle Judge of this Court in A.MAHESH AND OTHERS vs. THE K.K.COLLEGEOF PHARMACY [2003 (4) CTC 657],wherein it has been held:"When both the enactments are traceable to the power of the https://hcservices.ecourts.gov.in/hcservices/ same legislature, on the same subject viz., the Parliament,the later enactment viz., the AICTE Act which is a specialenactment insofar as laying down the norms and standardsfor courses, etc., shall override the provisions ofPharmacy Act ...."16. There is no denial or quarrel with regard to the wellestablished principle of law that the provisions of any Special Actwould prevail over the general Act. But, in the case on hand,nowhere in the Hill Act it has been mentioned that it is insupercession of any of the Acts in existence particularly, Act XXVIIof 1949. Therefore, the Hill Act would be an Act in addition but notin derogation or in supercession or in exclusion of Act XXVII of1949, so as to say that the Hill Act, being a Special Act, would haveoverriding effect on a general Act like Act XXVII of 1949.Therefore, the judgment of the Honourable Apex Court in SRIATHMANATHASWAMI DEVASTHANAM vs. K.GOPALASWAMI AIYANGAR [1963 (3) SCR763], which was delivered in the context of the permanent lease rightof occupancy of a ryot regarding waste lands brought undercultivation, relied on by the learned senior counsel for theappellants, also does not apply to the facts of the case on hand.Further more, as has already been held supra, the Hill Areas Act hasbeen made applicable to Nilgiris District long after the impugnednotification, by G.O.Ms.No.1225, dated 1.12.1985.17. At this juncture, it is relevant to point out that theHonourable Apex Court in Writ Petition (Civil) No.202 of 1995(T.N.GODAVARMAN THIRUMALKAD vs. UNION OF INDIA AND OTHERS), dated12.12.1996, considering the protection and conservation of theforests throughout the country, after hearing the Government of Indiaas well as all the State Governments, had issued certain interimdirections to various State Governments throughout the country. Thedirections issued by the Honourable Apex Court, so far as the Stateof Tamil Nadu is concerned, are extracted hereunder:"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 notspontaneous growth, and b) are in areas which were not forests earlier, but werecleared for any reason.....4. In so far as the plantations (tea, coffee, cardamometc.) are concerned, it is directed as sunder:a) The felling of shade trees in these plantations will be-i) limited to trees which have been planted and not thosewhich have grown spontaneously;ii) limited to the species identified in the TANTEAreports; https://hcservices.ecourts.gov.in/hcservices/ iii) in accordance with the recommendations of (includingto the extent recommended by ) TANTEA; andiv) under the supervision of the statutory committeeconstituted by the State Government....."18. A vehement argument would be advanced on the part of theappellants by the learned senior counsel that the lands in questionare ryotwari lands and pattas were also issued in the name of thepredecessors-in-title of the appellants, which were later transferredin their names, and therefore, the impugned notification issued underthe Tamil Nadu Preservation of Private Forests Act is bad in law andis liable to be quashed. He would also submit that no notice wasissued to the land owners before issuing such notification, whichwould also make the impugned notification illegal, being in violationof principles of natural justice. For this purpose, he would invitethe attention of this Court to an order passed by a learned singleJudge of this Court as early as in the year 1980 in SIRUMALAIKANAKASABAPATHY POONJOLAI COMPANY LIMITED BY ITS MANAGING DIRECTORK.M.J.JOSEPH vs. THE STATE OF TAMIL NADU REPRESENTED BY THE SECRETARYTO GOVERNMENT, FOREST AND FISHERIES DEPARTMENT, FORT ST.GEORGE,MADRAS-9 AND ANOTHER [1980 MLJ 202], wherein it has been held:"The mere existence of shrubs and jungle or wild andnatural growth by itself will not make a land a forest.Even the meaning given in the Random House Dictionary forthe word 'forest' is to the effect that a forest is anextensive area preserving some or all of its primitivewildness and usually having game or wild animals in it.But the Madras Estates Land Act and the Madras EstatesAbolition Act did not treat the lands as non-cultivablelands and therefore, they are to be treated as ryoti lands.When once they are treated as ryoti lands and ryotwaripatta had been issued, the petitioner is entitled to holdthe lands as not forest lands and the Preservation ofPrivate Forests Act could not be applied to such a land.The impugned notification is beyond the jurisdiction of theDistrict Collector.""The principles of natural justice require that the ownersof lands should be given notice to show cause against suchnotification, otherwise any other construction would leadto an assumption of an arbitrary power irrespective ofwhether the lands in question are private forest lands ornot. In fact the circumstances of the present case show aspecial need for issue of such a notice to the petitioner.The District Forest Officer was a party to the proceedingsunder Section 63 of the Madras Estates Abolition Act whenit was declared as a forest and even in the ryotwari pattaproceedings, he had taken up the matter in appeal andrevision against the order of the Settlement Officergranting patta and it is at his instance that the Collectorseems to have made this notification. Therefore the https://hcservices.ecourts.gov.in/hcservices/ notification of the Collector is in violation of principlesof natural justice and accordingly it is liable to be setaside."19. This plea of the appellants was strongly rebutted by therespondents on the ground that the impugned notification issued bythe Collector will apply only to the private patta lands owned by theprivate individuals and it is not mandatory on the part of therespondents to issue any prior notice to the appellants before thenotification was issued since it was issued only as per theprovisions of the Act and that all the formalities with regard to thenotification were dealt with by the father of the first appellantviz. Mr.Nathamal Vaid. We find force in the argument advanced on thepart of the respondents, since in the Tamil Nadu Preservation ofPrivate Forests Act, 1949, under which the impugned notification hasbeen issued, only a notification is contemplated and not individualnotices to the land owners.20. Further more, the above judgment of the learned single Judgeof this Court, though not binding on this Bench, would have only apersuasive value and the same could very well be distinguished onfacts, since in that case, there was already a declaration underSection 63 of the Abolition Act, which has become final and bindingon the parties, that it is not a 'forest' within the meaning ofEstates Land Act, which situation is absent in the case on hand.Further, in the light of the categorical directions issued by theHonourable Apex Court, extracted supra, the other judgments renderedcontra by the lower forums of law, would get diluted/nullified.Therefore, the judgment of the learned single Judge, relied on by thelearned senior counsel for the appellant has no application to thecase on hand. 21. The other point urged on the part of the appellants is thatthe impugned notification is liable to be quashed for the reason thatit has been published not in the Tamil Nadu Government Gazette, asrequired, but in the Nilgiris District Gazette alone. This argumentcannot be accepted since as per Section 2(iii) of the Tamil NaduPreservation of Private Forests Act, 1949, the notification isrequired to be issued only in the District Gazette, which has beenperfectly complied with by the respondents.22. The other argument advanced on the part of the appellants isthat as per the Amended Act 68 of 1979, the power to issue anotification vests only with the Committee constituted under Section2-A of the Private Forests Act and therefore, the notification issuedby the District Collector is bad in law.23. At this juncture, it is to be mentioned that the DistrictCollector is the Chairman of the Committees constituted both underthe Tamil Nadu Preservation of Private Forests Act and the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Hill Areas (Preservation of Trees) Act. Therefore, even if thenotification is issued by the District Collector, but not by theCommittee headed by him, it could only be treated as an irregularityand definitely not an illegality. It is now a well establishedprinciple of law that such irregularities will not vitiate the entireproceedings, since no prejudice has been caused to the land owners.24. It is to be mentioned that the provisions of both the Actsare only regulatory and preventive in nature to prevent theindiscriminate destruction of the forests and the procedurecontemplated is also very lucid and in case there is any rhyme orreason for the land owners to remove the shade trees which are fullygrown and which get silviculturally matured, they could very wellapproach the Committees constituted for permission and no case of anyarbitrariness or discrimination adopted on the part of the saidCommittees has been brought to our notice.25. A social responsibility is cast on every individual toprevent deforestation. The laudable and lucid laws enacted topreserve Mother Nature intact for the welfare of the Society andfuture generations, like the Tamil Nadu Preservation of PrivateForests Act, 1949, should be strictly adhered to, lest, therepercussions would be very serious affecting the ecological balance,leading to destruction and chaos.26. The learned single Judge has considered all the facts andcircumstances of the case in their proper perspective and has arrivedat an irresistible conclusion of dismissing the claim of theappellants herein. For all the above discussions, we also find noground to cause our interference into the well considered and meritedorder passed by the learned single Judge. Accordingly, this WritAppeal fails and the same is dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Rao https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government of Tamil Nadu, Forests and Fisheries Department, Fort St.George, Madras-600009.2.The Collector of the Nilgiris, Uthagamandalam3.The Personal Assistant (General) to the Collector of the Nilgiris and the Secretary of the Committee constituted under the TNPPF Act, Udhagamandalam4.The District Forest Officer, Gudalur Division, Calicut Road, Gudalur, Nilgiris-643221. + 1 CC To Mr. Sathish Parasaran, Advocate SR NO.69870+ 1 CC to the Spl. Government Pleader(Taxes) SR NO 69844W.A.No.1593 of 1999tej[co]gp/30.11.