IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18403 of 2009 and M.P.NOs.1 and 2 OF 2009 V.Govindasamy .. Petitioner Vs. 1.The District Forest Officer, Villupuram District, Viullupuram. 2.The Forest Officer, Ulundurpet, Villupuram. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records comprised in proceedings Order No.8578/2008/V, dated 7.8.2009 on the file of the first respondent, to quash the same and consequently, to direct the respondents to permit the petitioner to cut and remove the casuarina trees in Survey No.30/4A/1A of T.Edayar Village, Thirukoilur Taluk, Villupuram District under Rule 2 of the Tamil Nadu Forest Land (Eviction and Encroachment) Act, 1981. For Petitioner : Mr.R.Krishnamurthy,SC for Mr.T.Audiseshan For Respondents : Mr.S.N.Kirubanandam, Spl.G.P.(F) ORDER Heard both sides. The petitioner has filed the present writ petition, seeking to challenge the order of the first respondent (District Forest Officer, Villupuram), dated 7.8.2009 and after setting aside the same, he seeks for a consequential direction to respondents to permit him to cut and remove casuarina trees standing in Survey No.30/4A/1A of T.Edayar Village, Thirukoilur Taluk, Villupuram District in terms of Rule 2 of the Tamil Nadu Forest Lands (Eviction of Encroachment) Rules, 1981. 2.When the writ petition came up on 10.9.2009, notice was directed to be ordered to respondents. Pending notice, this court granted an interim injunction. Mr.S.N.Kirubanandam, learned Special https://hcservices.ecourts.gov.in/hcservices/ Government Pleader (Forest) took notice. A counter affidavit, dated 01.10.2009 has also been filed on behalf of the first respondent. 3.It is the case of the petitioner that he was in occupation of the land situated in Survey No.30/4A/1A in T.Edayar Village, Thirukoilur Taluk. According to the petitioner, those lands were classified as Malattar Poramboke and he was occupying the land to an extent of 7 acres since 1961. The other lands were situated adjoining are patta lands held by the petitioner to an extent of 17 acres. The petitioner was raising seasonal crops in those lands by pumping water from his Well. However, on 1.3.2003, notice was served on the petitioner under Section 68A of the Tamil Nadu Forest Act, stating that the land belonged to the forest department and that the petitioner had encroached the lands. He was directed to give vacant possession within five days. 4.The petitioner filed W.P.No.20584 of 2003 before this court. This court without going into the merits of the case, by a final order, dated 25.7.2003, directed the respondents to dispose of the petitioner's reply, dated 10.7.2003 on merits. Till such time, the respondents were restrained from evicting the petitioner from the lands in question. Though in the present affidavit, it was stated that the lands were in possession of the petitioner since 1961, in the reply sent on his behalf by the counsel dated 10.7.2003 in paragraph 4, the petitioner had stated that the land was in his possession from 1969 onwards only. Being in alleged possession of the land for over 35 years, the petitioner claims adverse title to the said land. It was also claimed that if respondents pursue eviction, he will be constrained to file a suit in the Sub Court, Villupuram. 5.After the direction issued by this court to consider the petitioner's representation, the respondents informed the petitioner that he had encroached the lands only very recently. The property was notified by the Tamil Nadu Government on 16.11.1979 as Forest land. Subsequently on 19.03.1985 by a notification were declared as Reserve Forest. The properties were brought under the control of the Forest Department. The petitioner's claim that he spent lakhs of rupees over the property was also denied. The petitioner once again moved this court with W.P.No.32939 of 2003. This court held that no blanket order can be give to him. However, the petitioner can be permitted to have an assistance of a lawyer by his side whenever he appears before the respondent. The lawyer's role was restricted to his physical presence and the lawyer will not have any say in the enquiry to be conducted by the department. With these observations, that writ petition was disposed of. 6.In the meanwhile, the second respondent registered a criminal case against the petitioner in Crime No.73 of 2003 for criminally trespassing into the forest area. The case was taken on file before the Judicial Magistrate No.II, Ulundurpet in STC No.341 of 2003. Pending the criminal case, the petitioner once again came forward to file a writ petition being W.P.No.8769 of 2005, seeking for a direction to forbear the respondents from interfering with https://hcservices.ecourts.gov.in/hcservices/ his possession. Pending the writ petition, an interim order was granted. Subsequently, the main writ petition itself came to be disposed of by a final order, dated 12.12.2007. In paragraph No.11, this court observed as follows: "11....On this day, it is brought to the notice of this court that the said criminal proceedings are still pending before the Criminal Court. Any orders that would be passed by the criminal court for dealing with the offence of criminal trespass, as to whether the petitioner has legal right to continue to be in possession of the subject matter of the land. When the proceedings were sought to be quashed the petitioner was liberty, to place all the materials before the criminal court to prove his possession and that he did not protest into the forest land. When the respondents had already instituted a criminal proceedings and the same is pending under the Tamil Nadu Forest Act, a Writ of Mandamus forbearing the second respondent from interfering with his alleged possession cannot be issued. The observations made in W.P.Nos.20584 of 2003 and W.P.No.32339 of 2003 indicate that the petitioner is not in possession of the property at present and hence it is open to the petitioner to make any representation to the respondents in terms of Section Rule 2 of the Tamil Nadu Forest Land Act and Encroachment Act 1981 to grant permission to remove the standing crops and other materials, and if any such representation is made by the petitioner, it is open to the respondents to consider the same and pass appropriate orders within a period of four weeks from the date of the receipt of the copy of this order." 7.On the strength of the order passed by this court, the petitioner prayed that he had grown sugarcane as well as casuarina plants in the land. During the pendency of the proceedings, it is claimed that the sugarcane was completely damaged. However, casuarina saplings have grown into big trees and the petitioner was intending to cut those trees. As per the provisions of the Act, he can remove the casuarina trees as it is a 'standing crop'. The petitioner has also claimed that he had invested huge amounts for bringing up those casuarina trees. The respondents by a communication, dated 30.3.2009 issued a show cause notice, stating that casuarina plants in that area have been planted 10 years before and that the petitioner had encroached the land in question knowing fully well that it was Reserve Forest. The petitioner was also asked to explain the basis on which he seeks permission to cut casuarina trees. 8.The petitioner sent a reply, stating that he was not aware of the declaration made under Section 6 of the Tamil Nadu Forest Act, 1882. By Rule 2 of the Tamil Nadu Forest Lands https://hcservices.ecourts.gov.in/hcservices/ (Eviction of Encroachment) Rules, 1981, an encroacher had the right to remove the standing crops. Therefore, he may be given necessary permission. The petitioner also claimed that he further undertook to surrender the land after cutting and removing the standing casuarina trees from the land. He also wanted the respondents to withdraw the criminal case filed against him. 9.In the meanwhile, the respondents passed the impugned order, dated 7.8.2009, stating that in the criminal case, as the petitioner was not attending the same, an arrest warrant was issued against him and he was on a conditional bail. In terms of the Tamil Nadu Forest Conservation Act, 1980, permission sought for by the petitioner to cut the trees cannot be permitted. The petitioner's attempt to set aside Crime No.73 of 2003 had also failed when he challenged it before this court in Crl.O.P.No.5229 of 2004. The petitioner was informed that though an opportunity was given to him to substantiate his claim for cutting and removing the trees, he had not furnished any basis for it. Therefore, by the impugned proceedings, he was informed that he has been deliberately delaying the handing over of the property and that he has no right to cut and remove casuarina trees found in the forest land. Even when the land was notified as Reserve Forest as per Sections 6 to 10 of the Tamil Nadu Forest Act, 1882, objections were called for. The petitioner never made any objection and the area has been declared as Reserve Forest with effect from 5.6.1984 and that the petitioner was directed to quit the land. It is this order which came to be challenged before this court. 10.Curiously, the petitioner though referred three proceedings filed before this court, did not refer to one more writ petition filed by him being W.P.No.25602 of 2003. Since the said writ petition was referred to in the impugned order, this court directed the respondents to produce the order passed by this court in the said writ petition. A perusal of the final order, dated 15.9.2003 in W.P.No.25602 of 2003 shows that petitioner having filed writ petition withdrew the said writ petition without any further reservation. Even now, this court was not informed as to the nature of the relief claimed in the said writ petition and the reason for the petitioner withdrew the same. This conduct of the petitioner in not giving full details before this court in his affidavit and suppressing the filing of the writ petition cannot be condoned. 11.In the counter affidavit filed by respondents, it is stated that steps taken by the respondents to evict the petitioner have been constantly stalled by the petitioner through various proceedings. Even as early as on 31.1.2004, the petitioner by a detailed order was notified that the land was classified as Reserve Forest and any trespass is punishable under the Tamil Nadu Forest Act, 1882. The petitioner did not question the final order, dated 31.1.2004 before any court and it had become final. Subsequently, the direction given by this court to consider the petitioner's representation was also rejected. The claim made by the petitioner cannot be permitted in terms of Section 68(A) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Forest Act, 1882 and Tamil Nadu Forest Lands (Eviction of Encroachment) Rules, 1981. 12.It was also stated that Malattar Poramboke land was notified as Reserve Forest under Section 16 and a notification to this effect was issued as early as 16.11.1979. If the petitioner occupation of the land was true, he ought to have raised objections at that time. In the absence of objections from any quarter, the land had been finally notified as Reserve Forest by a notification, dated 28.8.1984. Any person who encroaches or trespasses into a Reserve Forest, is punishable under Section 21 of the Tamil Nadu Forest Act, 1882. The petitioner is a big farmer and was having approximately 20 acres of patta land. His conduct in encroaching neighbouring forest land is not permissible. It is claimed that casuarina trees standing in the area is to an extent of four acres and have become full-fledged trees. With reference to sugarcane owned by the petitioner in the remaining land, it is stated that he cut those sugarcanes and had supplied it to the Co-operative Sugar Mill at Periasevalai. Any crop raised in the forest land is a Government property and it can be forfeited and sold by the Government by virtue of Section 68-A of the Tamil Nadu Forest Act, 1882 as well as by the Tamil Nadu Forest Lands (Eviction of Encroachment) Rules, 1981. The claim made by the petitioner to have right over a forest land including the standing trees can never be permitted. If done, it will be violative of direction issued by the Supreme Court in the series of the orders made in T.N.Godavarman Thirumulpad Vs. Union of India. 13.In that case, the Supreme Court has been monitoring the issues relating to conservation of forest, ecological imbalance and sustainable development. The State of Tamil Nadu is also party respondent. The Supreme Court has given directions that the reserve forests shall be preserved and all encroachers occupying reserve forests shall be evicted and compliance reports sent to the Supreme Court. Since it is an admitted case of the petitioner that he has no right to squat in the Reserve Forest, which includes the lands in survey No.30/4A/1A encroached by him. That issue is a concluded issue even as per his own admission. Therefore, he cannot be permitted to be possession of the land in question. His claim for adverse possession of the land cannot stand any legal scrutiny. 14.Thereore, the only question that arises for consideration is whether the petitioner is entitled to remove the casuarina trees standing in the Reserve Forest land (to the extent of four acres) allegedly grown by him? The sugarcane which was standing in three acres were already removed by him and supplied to the Co-operative Sugar Mill at Periasevalai as set out in the counter affidavit. Though the petitioner had attempted to hide that fact in his original affidavit, when his specific conduct was pointed out in the counter affidavit, the petitioner had not chosen to deny it by way of any replication. 15.It is necessary to refer to relevant legal provisions covering the issue on question. Section 68-A of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Forest Act, 1882 was inserted by the Tamil Nadu Act 41/81 with effect from 3.7.1981. Section 68-A reads as follows: "68-A.Liability of person unauthorisedly occupying any land in reserved forest etc: to summary eviction:- Any person unauthorisedly occupying any land in reserved forest or any land at the disposal of Government may be summarily evicted by an officer of Forest Department not below the rank of Forest Ranger or an Officer of the Revenue department not below the rank of Tahsildar having jurisdiction over area in which such land is situated, in such manner, as may be prescribed and any crop or other product raised on such land, shall be liable to forfeiture any building or other construction erected or anything deposited thereon shall also be liable to forfeiture. Forfeiture under this section, shall be adjudged by the officer referred to above and any property so forfeited, shall be disposed of in such manner as may be prescribed. Provided that no eviction or adjudication under this section adversely affecting a person shall be made or adjudged, unless- (a)such person has been given a notice in such manner as may be prescribed; and (b)the representation, if any received in pursuance of such notice has been duly considered by such officer concerned." (Emphasis added) 16.Under that provision, the State Government has framed rules known as Tamil Nadu Forest Lands (Eviction of Encroachment) Rules, 1981, by G.O.Ms.No.832, Forest and Fisheries, dated 13.7.1981. Rules 2 and 3 reads as follows: "2.Service of notice:(1)An officer of the Forest Department not below the rank of a Forest Ranger or an officer of the Revenue Department not below the rank of a Tahsildar having jurisdiction over the area in which the said reserved forests of land is situated, shall serve a notice in person by approved procedure in the Form prescribed in the Annexure to these Rules on the person unauthorisedly occupying the Reserved Forests of land to show cause, within [fifteen days], from the service of such notice as to why he should be summarily evicted from such land and the property included standing crops and buildings and other constructions standing thereon should not be forfeited. (2)Any representation, in writing, received from the person concerned within fifteen days of receipt of such notice shall be duly considered by the Ranger, or Tahsildar, as the case may be, and necessary orders passed. If https://hcservices.ecourts.gov.in/hcservices/ the orders are to the effect of vacating the encroachment the person concerned shall thereafter, within fifteen days of receipt of such orders, vacate the said encroachment and remove the property including standing crops, buildings and other construction thereon, if he fails to do so, the Forest Ranger or Tahsildar as the case may be, summarily evict him from the said land and forfeit the property thereon." .... 3.Disposal of forfeited property: Any property forfeited under sub-rule (2) shall be considered as forest produce and disposed of in the manner prescribed under the Tamil Nadu Forest Department Code." 17.It must be noted that when the State legislature introduced Section 68-A by Tamil Nadu Amendment Act 41/1981 virtually, it had borrowed the same phraseology used under Section 6(1) of the Tamil Nadu Land Encroachment Act, 1905. 18.A combined reading of Section 68-A of 1882 Act and the 1981 Rules 2.1 and 2.2 will show that power is vested on the State Government to summarily evict a person from any land in a Reserved Forest. Any crop or other products raised on such lands shall be liable for forfeiture. Further, any building or any construction erected or anything deposited thereon shall also be liable to be forfeited. In essence, any crop or other products raised in such land is the property of the State Government and an encroacher has no right over the same. Rule 2.1 also provides for a show cause notice for ordering such eviction and forfeiture of land and the property including standing crops. 19.However, Mr.R.Krishnamurthy, learned Senior counsel leading for Mr.T.Audiseshan for the petitioner placed reliance upon Rules 2.1 and 2.2. He stated that a combined reading of the rules will show that as soon as a show cause notice is issued to an encroacher, he has right to remove the immovable properties including standing crops, building and other construction thereon. Only if he fails to do so, he can be summarily evicted from the said land and the property can also be forfeited. Therefore, sooner show cause notice is issued, the encroacher has a right to remove the standing crops within the notice period. Only when he fails to do, the forfeiture clause will come into play. 20.The learned Senior counsel also submitted that the term "crop" found in the rule will also include a tree. Therefore, he is entitled to cut and remove casuarina trees grown by him and the prayer of the petitioner may be granted. 21.Therefore, the entire controversy revolves around the interpretation of the term "crop" found in Section 68-A of the Tamil Nadu Forest Act, 1882 and Rule 2 of 1981 Rules and whether it will include the trees standing in the Reserved Forest. In case the term "crop" includes trees, whether the petitioner has a vested right to cut and remove those trees. https://hcservices.ecourts.gov.in/hcservices/ 22.The arguments advanced by the learned Senior counsel to read into the word crop to tree will be over-stretching the language of the term "crop". Even the word 'other products' cannot be read to mean that it includes crop or other products raised on such land and certainly cannot include standing trees. 23.A similar question came up for consideration by the Supreme Court while construing the provisions of Section 9 of the Travancore Land Conservancy Act in Rev. Fr. K.C. Alexander v. State of Kerala reported in (1973) 2 SCC 737. The question arose in that case for consideration was whether standing trees in such land will come within the description of 'other products' raised in the land. In this context, it is necessary to refer to the following passages found in paragraphs 11 to 13, which read as follows: "11. Before dealing with this aspect, we will first consider the question whether trees are included within the meaning of Section 9, so as to entitle the appellant to a notice of forfeiture thereunder. Section 9 of the Act is in the following terms: “Any person unauthorisedly occupying any land for which he is liable to pay a fine under Section 6 and an assessment or prohibitory assessment under Section 7, may be summarily evicted by the Division Peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Division Peishkar may deem reasonable, be liable to forfeiture. Forfeiture under this section shall be disposed of as the Division Peishkar may direct.” An eviction under this section shall be made in the following manner, namely: “By serving a notice on a person reported to be in occupation or his agent, requiring him, within such time as the Division Peishkar may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the Division Peishkar shall hold a summary enquiry into the facts of the case and, if satisfied that the resistance or obstruction still continues, may issue warrant for the https://hcservices.ecourts.gov.in/hcservices/ arrest of the said person, and on his appearance may send him with a warrant in the form of the Schedule for imprisonment in the Civil Jail of the District for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance: Provided that no person so committed or imprisond under this section shall be liable to be prosecuted under Sections 176, 179 and 181 of the Travancore Penal Code, in respect of the same facts.” This section provides for two notices to be given, one notice is to be given to the person who is in unauthorised occupation of Government land to vacate the land within a reasonable time and the other notice is to forfeit any crop or other product raised on the land or to remove any building or other structure erected or anything deposited therein within a reasonable time as may be stated in the notice. It was conceded before the trial court and no attempt was made to establish anything to the contrary before the High Court that no notice of forfeiture as required under Section 9 was given to the appellant. In these circumstances, the question that would arise for determination is whether the trees come within the description of “other product raised on the land”. It is stated before us that at the time when the appellant was evicted the Transfer of Property Act was not in force. But this is not relevant as what has to be considered is whether trees can be said to be “other product raised on the land”. The words “raised on the land” qualify both the “crop” and “other product”, so the words “other product” have to be read in the context of the word “crop” which precedes it. 12. It was pointed out by the learned advocate that the High Court was in error in equating other product raised on the land with emblements because the definition of crop in Black’s Law Dictionary does include emblements, as such the words “other product” cannot also be treated as emblements and must therefore be given a different meaning which according to him would include trees. No doubt one of the meanings given in the Black’s Law Dictionary does say that in a more restricted sense the word is synonymous with “fructus industriales”. But the meaning to be ascribed to that word is that it connotes in its larger signification, products of the soil that are grown and raised yearly and are gathered during a single https://hcservices.ecourts.gov.in/hcservices/ season. In this sense