Dr.K.M. Subash v. Forest Range Officer Bitharkadu, Gudalur-643 212 The Nilgiris

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11-01-2008CORAM:THE HONOURABLE MR.JUSTICE R.REGUPATHICrl.O.P.No.8670 of 20061.Dr.K.M. Subash, 2.Mani Lal.. PetitionersVersusForest Range OfficerBitharkadu,Gudalur-643 212The Nilgiris.. RespondentPrayer: Petition filed under Section 482 Cr.P.C seeking for thereliefs as stated therein.For Petitioner : Mr.S. GiridharanFor Respondent : Mr.P. Kumaresan Addl.Public ProsecutorO R D E RThis petition is filed, seeking for a direction to call for therecords relating to the O.R.No.38/2005 (On the file of respondent andquash the same.2. The petitioner is alleged to have committed an offencepunishable under Secs.3(2) r/w 7(1) of The Tamil Nadu Preservation ofPrivate Forests Act, 1949. A complaint has been preferred by therespondent against the petitioners and the allegation is that thepetitioners have installed 5 batteries and established electric fencearound their Estate by name Bolson Estate bearing Survey No.507. Itis also alleged in the complaint that the conduct of establishingelectric fence around the private Estate will be the violative of theOrders passed by the Hon'ble Supreme Court in W.P.No.202/95 and alsoviolative of Secs.32 and 33 of Wild Life Act, 1972.3. The learned Magistrate, Gudular, on receipt of the complaint,has taken the case on file and initiated proceedings against thepetitioners.4. The learned counsel for the petitioners submits that thepetitioners are the owners of Bolson Estate bearing Survey No.507.It is not disputed that the petitioners have installed Solar WaterPumping System and Solar Power fencing on the "Subsidy cum lease"program of M.N.E.S (Ministry of Non-Conventional Energy Sources) https://hcservices.ecourts.gov.in/hcservices/ I.R.E.D.A (Indian Renewable Energy Resources Development Authority)Delhi, wholly owned by the Government of India. It is furthersubmitted that the petitioners have entered into a lease agreementwith the Agencies on 24.5.2003. Under such circumstances, therespondent Officials trespassed into their private forests andinspite of furnishing all the particulars a false and concocted casehas been filed against the petitioners.5. The learned counsel for the petitioners further submits thaton perusal of the Provisions of Sec.3(2) of The Tamil NaduPreservation of Private Forests Act, 1949, an offence is not madeout. An application dated 21.1.2006 has been filed before the WildLife Warden and the authorities in their proceedingsL.Dis.D2/``53/2006 dated 22.1.2007 passed the following order. "With reference to your request made in thereference 1st cited, the permission is herebyaccorded for providing a low voltage (below 12V)solar powered fencing around your patta land aftergiving sufficient clearance from the Sanctuaryboundary. The boundary should be demarcatedclearly before erection and got verified by theRanger and there should not be any encroachmentover the F land. For any illegal drawal of poweras well as death injury of wildlife due toimproper solar powered fence, the owner will beresponsible as per Wildlife Protection Act, 1972. 6. Therefore, it is submitted that the allegations and materialscollected against the petitioner do not constitute an offence allegedand sought to quash the proceedings.7. Per contra, the learned Additional Public Prosecutor submitsthat though the petitioners are the owners of a private forest land,as per the Act, installation of electric fence around the privateestate, previous sanction of the Committee constituted under the Actmust be obtained and since it has not been obtained on 26.6.2005, theoffence is substantiated. Moreover, for the purpose of installationof such electric fencing, ground has been cleared by the petitionersand even under such circumstances, the offence is substantiated.8. I have perused the materials available on record and heardthe submissions made.9. Sec.3(2) of The Tamil Nadu Preservation of Private ForestsAct, 1949 reads as follows:(2) No owner of any forest and no personclaiming under him, whether by virtue of acontract, licence or any other transactionentered into before or after the commencement ofthe Tamil Nadu Preservation of Private ForestsAct, 1946, or any other person shall without theprevious permission of the Committee (cut trees https://hcservices.ecourts.gov.in/hcservices/ or reads) or any Act likely to denude the forestor diminish its utility as such.Provided that nothing contained in this sub-section shall apply to the removal of dead orfallen trees or to any act done for the usual orcustomary domestic purposes or for makingagricultural implements.10. For violation of Sec.3(2), penalty is provided under Sec.7of the Act, which reads as follows:"Penalties: (1) Whoever contravenes theprovisions of sub-section (1) or sub-section(2)of section 3 or any of the terms of anotification under section 6 shall be punishablewith imprisonment which may extend to two yearsor with fine which may extend to five thousandrupees or with both."11. It is not the case of the prosecution that any wild lifesustained injury or died on account of installation of electricfencing. Admittedly, electric fencing has been installed afterentering into lease agreement with an Agency constituted by CentralGovernment. Though it is alleged that sanction has not been obtainedfrom the Committee constituted under the Act, on perusal of theprovisions, such sanction must be obtained, if the Act likely todenude the forest or diminish its utility as such. In the proviso toSec.3(2) it has been specifically stated that nothing contained inthis sub-section shall apply to the removal of dead or fallen treesor to any act done for the usual or customary domestic purposes orfor making agricultural implements.12. The installation of Solar Water Pumping System & Solar PowerFencing must be construed as agricultural implements. Moreover, itis not in dispute that such Solar Power Fencing output is pulsatingD.C.current of 5000-6000 Volts which is not fatal to animals.13. During the course of enquiry before the learned Magistrate,the batteries which were seized by the respondent have been returnedback to the petitioners for reinstallation. Further, on subsequentdate, an order has been passed on 22.1.2007 by the Wild Life Wardenpermitting the petitioners providing a low voltage solar poweredfencing around their estate.14. Under such circumstances, I do not find any substance ofmerit in the allegation made in the complaint by the respondent forprosecuting the petitioners under Sec.3(2) r/w 7(1) of The Tamil NaduPreservation of Private Forests Act, 1949 and therefore, I am of theconsidered view that the proceedings initiated by the respondent isliable to be quashed and accordingly it is quashed. https://hcservices.ecourts.gov.in/hcservices/

15. In result, the petition is allowed. Consequently, connectedM.P is closed.SrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Forest Range Officer Bitharkadu, Gudalur-643 212 The Nilgiris2. The Public Prosecutor, High Court, Madras + 1 cc to Mr. S. Giridharan, Advocate SR No. 1944Crl.O.P.No.8670/2006KU(CO)SR/6.2.2008