S. Chakravarthi v. The District Collector, Thiruvallur, Thiruvallur District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 19..09..2008C O R A MThe Honourable Mr. A.K. Ganguly, Chief JusticeandThe Honourable Mr. Justice F.M. Ibrahim KalifullaWrit Petition No.20918 of 2008S. Chakravarthi.. Petitioner versus1.The District Collector,Thiruvallur, Thiruvallur District. 2.The Government of Tamil Nadu,Rep. by its Secretary,Department of Forest,For St. George, Chennai-9.3.The Tahsildar,Thiruttani Taluk, Thiruvallur District.4.Panchayat Development Officer,Thiruttani Taluk, Thiruvallur District... Respondents- - - - -Prayer : Petition filed under Article 226 of theConstitution of India for a writ of mandamus for therelief as stated within.- - - - - For Petitioner : Mr. V. Prakash, Senior Counsel for Mr. D. Anbarasu For Respondents: Mr. J. Raja Kalifulla, Govt. Pleader- - - - -O R D E R( Delivered by F.M. Ibrahim Kalifulla, J. )This is a public interest litigation and the petitioner seeksfor issuance of a writ of mandamus to direct the respondents not https://hcservices.ecourts.gov.in/hcservices/ to fell the trees in the land in Survey No.77/3 of MamandurVillage, Thiruttani Taluk, Thiruvallur District in order toimplement the Periyar Memorial Samathuvapuram Scheme on the saidland or the other lands in Survey Nos.77/8, 77/9, 77/10, 77/11 and77/12 of the said village and district. According to thepetitioner, the lands situated in the said survey numbers areforest lands which are spread in an area of about 24.64.0Hectares, that the Government, in G.O. Ms. No.195, Department ofEnvironment and Forest dated 19.3.1991, notified the same in theGovernment Gazette dated 1.5.1991 for formation of a forest in thelands situated in the above survey numbers and that thereafter,objections were also called for vide proceedings dated 30.10.1991from the general public for reserving the said lands as forestlands. 2. Mr. V. Prakash, learned senior counsel appearing for thepetitioner also pointed out that a notification under Section 6 ofthe Tamil Nadu Forest Act, 1881 came to be issued on 1.9.1991 forthe purpose of declaring the above referred to lands as forestland. In the circumstances, the lands have virtually assumed thecharacter of forest land over a period of time, where huge growthof trees has also been undertaken at the instance of theDepartment of Forest coming within the jurisdiction of the secondrespondent. Learned senior counsel further contended that thepresent attempt of the first respondent to indulge in an activityof deforestation of the above referred to lands for the purpose ofconstruction of houses under the Periyar Memorial SamathuvapuramScheme would be in direct violation of Section 2(ii) of the Forest(Conservation) Act, 1980 inasmuch as such an attempt is being madewithout getting the prior approval of the Central Government.3. On a perusal of the material papers placed before us andafter hearing the learned Government Pleader, we find that thefirst respondent has planned to create a Samathuvapuram under thePeriyar Memorial Samathuvapuram Scheme in the lands in the abovereferred to survey numbers. 4. The learned Government Pleader, by referring to thenotification dated 15.5.1991 issued under Section 6 of the TamilNadu Forest Act, 1881, contended that though under the saidnotification, objections were called for to declare the abovereferred to lands under the category of "Odukka Kadugal", viz.Reserved Forests, the ultimate declaration under Section 16 of thesaid Act was not issued and that the above referred to landscontinued to remain and be classified as ordinary Governmentlands. The learned Government Pleader would, therefore, contend https://hcservices.ecourts.gov.in/hcservices/ that inasmuch as the above referred to lands cannot be construedas forest lands falling under the provisions of the Tamil NaduForest Act, 1881, the question of invoking Section 2(ii) of theForest (Conservation) Act, 1980 does not arise and consequently,the approval of the Central Government was not required to createa Samathuvapuram in the said lands.5. Having heard the learned counsel for the parties, we hadthe benefit of perusing the decision of the Honourable SupremeCourt reported in (1997) 11 S.C.C. 605 in the case of SupremeCourt Monitoring Committee vs. Mussoorie Dehradun DevelopmentAuthority & Others, where a more or less similar situation came tobe considered by the Supreme Court. That was also a case where aland where extensive growth of trees and plantations was sought tobe converted into a housing colony in the State of Uttar Pradeshand while dealing with the said situation, the Supreme Court hasstated as to what land can be construed as forest land. In thewords of the Supreme Court as stated in paragraph 1 of the saidjudgment, the term 'forest land' can be construed in the followingmanner :-"The term 'forest land' has not been defined underthe Indian Forest Act, 1927 or the 1980 Act and,therefore, has to be understood as including anextensive track of land covered with trees andundergrowth, sometimes intermingled with pasture, i.e.,it will have to be understood in the broad dictionarysense. So understood, any area which the State Actconsiders to be a forest and is governed under that lawwill also be subject to Section 2(ii) of the 1980 Act.Viewed in this light, any land which the State of UttarPradesh by notification declares to be a forest would begoverned under Section 2(ii) of the 1980 Act."When we apply the principle set out in the abovesaid decision tothe case on hand, we find that as early as in the year 1991, whenthe State Government issued the notification dated 15.9.1991,there was an indication to the effect that there was extensivegrowth of trees and other plantations in the above referred tolands and that the State Government itself intended to declare thesaid lands as forest lands in the light of such extensive growthof trees and plantations. Though the further declaration underSection 16 of the Tamil Nadu Forest Act, 1881, did not ultimatelyfructify, the fact that the land had extensive growth of trees andplantations having been accepted by the Department of Forestthemselves, it will be too late in the day for the respondents to https://hcservices.ecourts.gov.in/hcservices/ contend that the said lands were mere Government lands andtherefore, there is nothing for seeking the permission of theCentral Government as prescribed under Section 2(ii) of the Forest(Conservation) Act, 1980. When we apply the ratio laid down bythe Supreme Court in the above referred to judgment to the presentcase, we have no hesitation in holding that the land in question,which had extensive growth of trees and plantations, squarelycomes under the definition of 'forest land' and consequentlyattracts the stipulations contained in Section 2(ii) of the 1980Act. 6. As far as the move of the State Government forconstruction of houses under the Periyar Memorial SamathuvapuramScheme is concerned, here again, we wish to be guided by what hasbeen stated by the Supreme Court in the very same judgment,wherein in paragraph 2, while considering the question as towhether the activity of construction of building can be construedas non-forest activity, the Supreme Court has held as under :-"... Any building activity permitted within theforest area would certainly be a non-forest activitywhich requires the prior approval of the CentralGovernment ..."Therefore, the present attempt of the State Government in puttingup certain constructions, though for the purpose of creating aSamathuvapuram, would nonetheless be a non-forest activity andconsequently, the compliance of Section 2(ii) of the Forest(Conservation) Act, 1980 would become imperative. 7. In such circumstances, we hold that the respondents, inparticular the first respondent, is bound to follow the statutoryprescription contained in Section 2(ii) of the Forest(Conservation) Act, 1980 and without getting the prior approval ofthe Central Government, the respondents are not entitled toproceed with any construction in the lands situated in SurveyNo.77/3 of Mamandur Village, Thiruttani Taluk, ThiruvallurDistrict or the other lands in Survey Nos.77/8, 77/9, 77/10, 77/11and 77/12 of the said village and district. The writ https://hcservices.ecourts.gov.in/hcservices/ petition, therefore, stands allowed. We, however, give liberty tothe respondents to approach the Central Government and seek forappropriate permission, if they still wish to pursue with theirscheme of construction of a Samathuvapuram in the lands in theabove referred to survey numbers. There shall be no order as tocosts. Consequently, M.P. No.1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarabTo1.The District Collector,Thiruvallur, Thiruvallur District. 2.The Secretary,Department of Forest,Government of Tamil Nadu,For St. George, Chennai-9.3.The Tahsildar,Thiruttani Taluk, Thiruvallur District.4.Panchayat Development Officer,Thiruttani Taluk, Thiruvallur District.+1cc to Govt. Pleader Sr 53677+1cc to Mr.D.Anbarasu, Advocate Sr 53550TS (CO)km/3.10. Writ Petition No.20918 of 2008