IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Writ Appeal No.376 of 2008 Salem Mavatta Ezhpulli Malaivazh Makkal Nala Sangam, Regd.No.30/99, Puzhuthikuttai Post, Salem District, rep. by its General Secretary C.Ramachandran .. Appellant/Petitioner vs. 1. The State of Tamil Nadu, rep. by its Secretary, Revenue Department, Fort St.George, Chennai-9. 2. The Secretary to Government, Environment and Forest Department, Fort St.George, Chennai-9. 3. The District Collector, Salem District, Salem. 4. The District Revenue Officer, Salem District, Salem. 5. The Forest Settlement Officer, Attur, Salem District. .. Respondents/Respondents Writ Appeal filed U/Claver 15 of the letters patent against the order dated 1.4.2005 passed by the learned single Judge in Writ Petition No.10954 of 2005 on the file of this Court. W.P.NO.10954/2005 Writ Petition praying to issue a writ of mandamus for bearing the respondents from issuing the declaration U/Sec 16 of the Tamilnadu Forest Act for the lands in S.NO.1/1 of Malayalapatti Village, Attur Taluk, Salem District, without considering the claim https://hcservices.ecourts.gov.in/hcservices/ of the members of the Petitioner Sangam, totally 217 persons, whose names are given in the annexure to the writ petition, to grant patta to them for an extent of 4 acres each of the said lands in S.NO.1/1 of malayalapatti Village, Attur Taluk, Salem District. For appellant : Mr.V.Jeevagiridharan For respondents : Mr.D.Sreenivasan, Addl.G.P. for RR-1 to 4 Mr.S.N.Kirubanandam, Spl.G.P. for R-5 JUDGMENT S.J.MUKHOPADHAYA,J The members of the appellant-Salem Mavatta Ezhpulli Malaivazh Makkal Nala Sangam (writ petitioner) (for short, 'Association') are all hill tribes, cultivating the waste dry Government poramboke land (s) from time immemorial and are in possession and enjoyment of S.No.1/1 Malayalapatti Village, Attur Taluk, Salem District. They sought for a Writ of Mandamus, to forbear the respondents from issuing declaration under Section 16 of the Tamil Nadu Forest Act, 1882 for the land(s) in S.No.1/1 of the aforesaid Malayalapatti Village, without considering the claim of the members of the appellant-Association, totally 217 persons, whose names were given in the annexure to the Writ Petition in question and to grant patta to them for an extent of four acres of each of the said land(s) in the said S.No.1/1. 2. The learned single Judge, taking into consideration the facts of the case, maintenance of ecological balance and environmental protection, referring to some of the decisions of the Supreme Court, and having refused to grant the relief, the present Writ Appeal has been preferred by the appellant-Association. 3. The only question to be determined in the present case is as to whether the members of the appellant-Association, who are Scheduled Tribes and those who are other traditional forest dwellers, who otherwise fulfill the requisite conditions, have the forest rights and right of occupation in the forest lands in question. 4. It appears that the land(s) in question i.e. in S.No.1/1 of Malayalapatti Village was proposed for declaration as a "reserve forest" under Section 4 of the Tamil Nadu Forest Act, published on the Gazette, vide G.O.Ms.No.3133, dated 28.12.1972 issued from Agricultural Department, followed by Notification under Section 6 published in the District Gazette on 24.11.1978, calling for claims on right, which was existing in the said land(s). According to the respondents, neither the Sangam (Association), nor its members did https://hcservices.ecourts.gov.in/hcservices/ present any claim during 1978 before the Forest Settlement Officer under Section 10 of the Tamil Nadu Forest Act, which indicates that they were not cultivating during the year 1978. Their representation to the Government for allotment of the land(s) was filed only during 1999, claiming that they were cultivating land(s) from 1991 onwards. 5. The Tahsildar, Attur, by letter dated 22.6.1992, forwarded the claim of the members of the appellant-Association to the District Revenue Officer, Salem, with a report/Survey Notes and other enclosures. It was informed that the land(s) in S.No.1/1, an extent of 1205.27.0 hectares is made up of flat surface and heightend like a small hillock. Huge thick trees are found in the small hillock and some bushes are found in the foot of this small hillock. 538 people, whose names are found in the Adangal, have removed these bushes and have cultivated punja crops and in some places, have removed the bushes and have levelled the land(s). On enquiry, it was learnt that since the boundaries of the forest have not been demarcated, those lands could not be developed any further. It was further informed that Malayalapatti Village is surrounded by hillocks on three sides. For a very long period of time, it is the Adivasis (malayalis, i.e. the Scheduled Tribes), who are in inhabitation. All time passed, other backward people have also settled there. The list showing the land(s) which were allotted for public purpose for the Malayalapatti Village people was also enclosed. It was further informed that the land(s) in dispute are situated 2 Kms. from Malayalapatti Village and cannot be used for public purpose. There are no Mosques, Temples, burial ground, ancient sculptures in the above said Survey Number. There are no mineral deposits in the said S.No. and there is no possibility of any river to flow and lakes or ponds to form for any small water irrigation. The land(s) are in the nature of red sand and are fertile. The water source is available approximately 30% to 50%. In the midst of the same S.No.1/1, cultivation in S.No.315 consisting of an extent of 23.00 acres were classified as patta land(s) and are enjoyed by four persons by an earlier settlement of lands. In the aforesaid S.No., a Well has been dug and rice crops are being cultivated. There was no objection in the village for converting and allotting the land(s) to the poor, such as landless power and Scheduled Tribes. 6. The Revenue Divisional Officer, Salem, in his turn, by letter dated 10.7.1992, informed the District Revenue Officer, Salem, the aforesaid facts. It was also intimated that pursuant to G.O.No.28, dated 7.12.1997, issued from Forest Department, with regard to the abovesaid land(s), action to be taken according to the Forest Boundary Assessment Act and the recommendation was made to sub-divide 1205.27.0 hectares in S.No.1/1, 131-Malayalapatti Village and to handover the same to the landless poor people. https://hcservices.ecourts.gov.in/hcservices/ 7. On 8.7.1992, the Revenue Divisional Officer, Salem, vide his note, mentioned that prior to UDR, the land(s) were classified as Government poramboke. The land value was Rs.1,560/- as was recommended by the Tahsildar and the land(s) had not been of any use for all these days and only bushes which are of no use is grown there. As the forest boundaries have not been demarcated, it was recommended to transfer the land(s) in favour of the poor. Similar report was submitted by the District Revenue Officer in 1992, but the matter remained pending. 8. It appears that inspite of favourable reports, no action having been taken by the State, the appellant-Association moved before this Court in W.P.No.6815 of 2000 for issuance of a Writ of Mandamus, to consider the claim of its members for grant of patta. This Court, by order dated 6.6.2000, directed the District Collector and the District Revenue Officer to initiate proper enquiry and communicate the decision to the appellant-Association within three months. A detailed enquiry was conducted by the Tahsildar and by proceedings dated 14.3.2001, a favourable report was submitted in favour of the members of the appellant-Association and recommended for grant of patta in their favour. 9. The Forest Settlement Officer, Attur, by order dated 11.9.2002, having noticed the fact that the Notification under Section 4 of the Tamil Nadu Forest Act, 1882 was published long ago, followed by the Gazette publication on 19.5.1976 and the District Gazette publication on 21.9.1981 and that the Notification under Section 6 of the Tamil Nadu Forest Act was also published in the District Gazette on 21.4.1977, 21.11.1977, 21.2.1984 and again on 21.3.1990, submitted his report under Section 8 of the Tamil Nadu Forest Act. 10. The District Collector, Salem, by proceedings, dated 31.3.2003, forwarded his remarks to the Secretary to Government, Environment and Forest Department, Secretariat, Chennai, to the effect that since the Government has already issued the Notifications under Sections 4 and 6 of the Tamil Nadu Forest Act, proposing the declaration, and declaring the area of 1205.27.0 hectares including the impugned land(s), namely in S.No.1/1, Malayalapatti Village, Attur Taluk, Salem District, as 'reserve forest', it is for the Government to call for the objections from the encroachers and to take appropriate decision. 11. Similarly, the Principal Chief Conservator of Forests, Chennai, in his proceedings, dated 1.3.2004, addressed to the Secretary to Government, Environment and Forests Department, Secretariat, Chennai, while referring to G.O.Ms.No.313, dated 28.12.1972, issued from Agricultural Department, proposing to declare https://hcservices.ecourts.gov.in/hcservices/ the land(s) in question as a 'reserve forest', expressed his opinion that there is no provision under the Tamil Nadu Forest Act, 1882 to call for a fresh application in the matter and since the Notification has already been issued under Section 4 of the Tamil Nadu Forest Act, 1882, it is to culminate into the Notification under Section 16 of the Tamil Nadu Forest Act and hence, the question of receiving fresh application now from the encroachers does not arise. 12. Learned counsel appearing on behalf of the State submitted that when once the objections were received under Section 6(d) of the Tamil Nadu Forest Act and enquiry made under Section 8, and on that basis, an order was passed under Section 10, the authority has no jurisdiction to entertain further objections under Section 6(d), nor can make any further enquiry under Section 8, nor can pass a second order under Section 10 of the Tamil Nadu Forest Act, 1882. 13. Per contra, according to the learned counsel appearing for the appellant-Association, the members of its Association being Tribal, and they and their ancestors being in possession and enjoyment of the land(s) in question from time immemorial, the State is bound to recognise their right by issuing patta in their favour. 14. The impugned order was delivered by the learned single Judge on 1.4.2005, against which the present Writ Appeal is preferred and is pending. During the pendency of this Writ Appeal, a Central Act was promulgated, namely "The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006". Learned counsel for the appellant-Association, while relying on the relevant provisions of the said Act, 2006, and the Rules framed thereunder, also referred to Sections 16 and 17 of the Tamil Nadu Forest Act, 1882. 15. We have heard the learned counsel appearing for the parties and noticed the rival contentions. 16. The Madras Forest Act 5 of 1882, now known as Tamil Nadu Forest Act, 1882, was promulgated with the object to provide for the constitution of more important forests as "State Reserves" and to give powers for the conservancy of forest lands not included in the "Reserve Forests". While Section 4 of the Tamil Nadu Forest Act, empowers the Government to issue Notification of proposal to constitute any land a Reserved Forest, under Clause (c) of Section 4, the State Government is empowered to appoint an officer (Forest Settlement Officer) to enquire into and determine the existence, nature and extent of any rights claimed by, or alleged to exist in favour of, any person or over any land comprised within such limits or to any forest produce of such land, and to deal with the same as provided under Chapter-II of the Tamil Nadu Forest Act, 1882. https://hcservices.ecourts.gov.in/hcservices/ When a Notification is issued under Section 4 of the Tamil Nadu Forest Act, 1882, the Forest Settlement Officer is empowered to issue proclamation under Section 6 of the Tamil Nadu Forest Act, 1882, specifying the situation and limits of the land proposed to be included in the reserved forests. Under Clause (d) of Section 6, the Forest Settlement Officer is supposed to fix a period not less than three months from the date of publication of such proclamation, requiring every person claiming any right referred to in Section 4 either to present to such Officer, within such period, a written notice specifying, or to appear before him within such period and state the nature of such right and in either case, to produce all documents in support thereof. After serving of notice to the same effect of every known or reputed owner or occupier of any land in or adjoining the land proposed to be constituted a reserved forest, the Forest Settlement Officer is to make enquiry under Section 8 into all claims made under Section 6 recording the evidence in the manner prescribed by the Code of Civil Procedure Code in appealable cases. At the same time, the Forest Settlement Officer is to consider and record any objection which the Forest Officer (if any) appointed under Section 4 may make to any such claim. After such enquiry, the Forest Settlement Officer shall pass an order under Section 10 specifying the particulars of such claim and admit or reject the same, wholly or in part with regard to (a) right of way; (b) a right to a water course, or to use of water; (c) a right of pasture; or (d) a right to forest produce. With regard to the admitted claim, the Forest Officer may come to the agreement with the claimant for the surrender of the right or exclude the land from the limits of the closed forests or may proceed to acquire such land in the manner provided by the Land Acquisition Act, 1870 (Land Acquisition Act 1 of 1894). However, with regard to the rejected claims, there is a provision for appeal provided under Section 10 of the Tamil Nadu Forest Act within a reasonable period. Finally, under Section 16 of the Tamil Nadu Forest Act, 1882, Notification is required to be issued declaring the Forest Reserved, after the period fixed under Section 6 for preferring the claims has elapsed and all claims (if any) made within such period, have been disposed of by the Forest Settlement Officer and in case, such claims have been made and determined, the appeals presented and disposed of by the appellate authority. Under Section 16(c) of the Tamil Nadu Forest Act, 1882, all proceedings prescribed by Section 10 have been taken and all lands https://hcservices.ecourts.gov.in/hcservices/ (if any) to be included in the proposed forest, which the Forest Settlement Officer has under Section 10 elected to acquire, under the Land Acquisition Act, 1870 and on such issuance of Notification under Section 16, the lands stand vested in the Government. Under Section 17 of the Tamil Nadu Forest Act, 1882, rights in respect of which no claim has been preferred under Section 6, shall thereafter be extinguished, unless before publication of such Notification, the person claiming them has satisfied the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 6, in which case, the Forest Settlement Officer shall proceed to dispose of the claim in the manner provided under the Tamil Nadu Forest Act. 17. From the aforesaid provisions of the Tamil Nadu Forest Act, 1882 it would be evident that apart from the claim of right of occupation and ownership, which can be made under Section 6 and determined under Section 10, even after vesting of the land on issuance of the Notification under Section 16, the Forest Settlement Officer, if on the claim of such right, is satisfied that the claimant had sufficient cause for not preferring such claim within the period fixed under Section 6, can prefer objection under Section 17 and in such a case, the Forest Settlement Officer shall proceed to dispose of the claim in the manner provided under the Tamil Nadu Forest Act. 18. In the present case, it has not been brought to the notice of the Court as to what was the time prescribed under Section 6 of the Tamil Nadu Forest Act, 1882, but from the records, it appears that such a proclamation under Section 6 was issued on 24.11.1978 and it is informed that the three months' period was prescribed for submitting the claim of rights and it is also informed that 36 claims were received, of which, many claims were rejected in 1979. The right to claim water course, etc., under Section 10 also lapsed on 24.2.1979. However, it is admitted that till date, no Notification has been issued under Section 16, declaring the land(s) in question as 'Forest Reserve' and thus, it cannot be argued that the right to claim occupancy and ownership or other rights, extinguished under Section 17 of the Tamil Nadu Forest Act, 1882. 19. The learned single Judge has failed to notice the aforesaid provisions of law and thus, we hold that the members of the appellant-Association still have a right to claim occupancy, ownership and other rights, if they satisfy the Forest Settlement Officer that they had sufficient cause for not preferring such claim within the period fixed under Section 6 of the Tamil Nadu Forest Act and such a claim can be made under Section 17 of the Tamil Nadu Forest Act, after publication of the Notification under Section 16 of the Tamil Nadu Forest Act, declaring the land(s) as a "Reserve Forest". https://hcservices.ecourts.gov.in/hcservices/ 20. The learned single Judge has referred to the decision of the Supreme Court in the case of "M.C.Mehta vs. Kamal Nath and others" reported in 1997 (1) SCC 388, in maintaining the ecology in the context of doctrine of public trust, wherein the Supreme Court held as follows: "The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Though the public trust doctrine under the English common law extended only to certain traditional uses such as navigation, commerce and fishing, the American Courts in recent cases expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations therein to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. Our legal system-based on English Common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Thus the Public Trust doctrine is a part of the law of the land." https://hcservices.ecourts.gov.in/hcservices/ 21. Learned single Judge has also placed reliance on the decision of the Supreme Court regarding maintenance of ecology balance and environmental protection in the case of "T.N.Godavarman Thirumalpad vs. Union of India and others" reported in 2002 (10) SCC 606, wherein the Supreme Court observed as follows: "19. Environmental law is an instrument to protect and improve the environment and to control or prevent any act or omission polluting or likely to pollute the environment. In view of the enormous challenges thrown by the industrial revolution, the legislatures throughout the world are busy in this exercise. Many have enacted laws long back and they are busy in remodelling the environmental law. The others have moved their law-making machineries in this direction except the underdeveloped States who have yet to come in this wavelength. India was one of those few countries which paid attention right from the ancient times down to the present age and till date, the tailoring of the existing law to suit the changing conditions is going on. The problem of law-making and amending is a difficult task in this area. There are a variety of colours of this problem. For example, the industrial revolution and the evolution of certain cultural and moral values of humanity and the rural and urban area developments in agricultural technology, waste, barren or industrial belts; developed, developing and underdeveloped parts of the lands; the rich and poor Indians; the population explosion and the industrial implosion; the people’s increasing awareness and the decreasing State exchequer; the promises in the political manifestos and the State’s development action. In this whole gamut of problems the Tiwari Committee came out with the data that we have in India "nearly five hundred environmental laws" and the Committee pointed out that no systematic study had been undertaken to evaluate those legislative developments. Some legal controls and techniques have been adopted by the legislatures in the field of Indian environmental laws. Different legislative controls right from the ancient times, down to the modern period make interesting reading. Attention has to be paid to identify the areas of great concern to the legislature; the techniques adopted to solve those problems; the pollutants which require continuous exercises; the role of the legislature and people’s participation outside. These are some of many areas which attract the attention in the study of history of the Indian environmental law. 20. Since time immemorial, natural objects like rivers enjoyed a high position in the life of the society. They https://hcservices.ecourts.gov.in/hcservices/ were considered as goddesses having not only purifying capacity but also self-purifying ability. Fouling of the water of a river was considered a sin and it attracted punishments of different grades which included penance, outcasting, fine etc. The earth or soil also equally had the same importance, and the ancient literature provided the means to purify the polluted soil. The above are some of the many illustrations to support the view that environmental pollution was controlled rigidly in the ancient times. It was not an affair limited to an individual or individuals but the society as a whole accepted its duty to protect the environment. The "dharma" of environment was to sustain and ensure progress and welfare of all. The inner urge of the individuals to follow the set norms of the society, motivated them to allow the natural objects to remain in the natural state. Apart from this motivation, there was the fear of punishment. There were efforts not just to punish the culprit but to balance the ecosystems. The noteworthy development in this period was that each individual knew his duty to protect the environment and he tried to act accordingly. Those aspects have been highlighted by a learned author C.M.Jariwala in his article "Changing Dimensions of the Indian Environmental Law" in the book Law and Environment by P.Leelakrishnan. 21. The Economic and Special Council of the United Nations passed a resolution on 30-7-1968 on the question of convening an international conference on problems of human environment. In the United Nations Conference on Human Environment at Stockholm from 6-6-1972 to 16-6-1972, proclamation was made on United Nations on Human Environment. It was stated in the proclamation in