IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.11.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR WRIT PETITION NO.5621 OF 2008 AND W.P.M.P.NO.2 OF 2008 V.Loganathan. ... Petitioner vs. 1.The State of Tamilnadu, represented by its Secretary to Government, Environment Forest Department, Fort St. George, Chennai-600 009. 2.The Collector and Chairman, Coimbatore District Forest Committee, Coimbatore-18. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent relating to G.O.Ms.No.132 Environment and Forest (V3) Department dated 3.12.2007 confirming the order of the second respondent made in Pa.Mu.No.12004/06/A2 dated 17.1.2007 and quash the same and direct the respondents to grant exemption under Section 3(3) of the Tamilnadu Preservation of Private Forests Act 1949 in respect of petitioner's lands measuring 47.50 acres comprised in Survey No.SF No.1/3A of Anamalai Hills Village, Valparai Taluk, Coimbatore District, from the provisions of 3(1)(a) of the Tamilnadu Preservation of Private Forests Act, 1949. For Petitioner : Mr.V.Radhakrishnan, Senior Counsel for Mr.K.Sasindran For Respondents : Ms.K.Jenitha for Mr.S.N.Kirubhanandham, Special Government Pleader (Forests) ----- https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Writ Petition is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent relating to G.O.Ms.No.132 Environment and Forest (V3) Department dated 3.12.2007 confirming the order of the second respondent made in Pa.Mu.No.12004/06/A2 dated 17.1.2007 and quash the same and direct the respondents to grant exemption under Section 3(3) of the Tamil Nadu Preservation of Private Forests Act 1949 in respect of petitioner's lands measuring 47.50 acres comprised in Survey No.SF No.1/3A of Anamalai Hills Village, Valparai Taluk, Coimbatore District, from the provisions of 3(1)(a) of the Tamil Nadu Preservation of Private Forests Act, 1949. 2. The question that arises for consideration in this writ petition is primarily on the interpretation of Section 3 of the Tamil Nadu Preservation of Private Forests Act, 1949 (Tamil Nadu Act XXVII of 1949), hereinafter referred to as "the Act" and the same reads as follows:- "3.Preservation of private forests:- (1) (a) No owner of any private forest shall, without the previous sanction of the Committee sell, mortgage, lease or otherwise alienate the whole or any portion of the forest. (b) Any alienation in contravention of clause (c) shall be null and void:- (i) if the alienation is of any forest declared by District Collector to be a forest under clause (iii) of section 1(2) or of any portion of such a forest, and is made on or after the date on which the declaration takes effect; (ii) omitted by T.N. ACT XV of 1957 (iii) x x x (2) x x x (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the State Government may exempt any forest or class of forests or class of trees therein from all or any of the provisions of this section." 3. The petitioner in this case challenges the G.O.Ms.No.132 Environment and Forest (V3) Department dated 3.12.2007 confirming the order of the second respondent District Collector and the Chairman of the Coimbatore District Forest Committee, in Pa.Mu.No.12004/06/A2 dated 17.1.2007 declining to grant the exemption and to quash the above said order and to direct the respondents to grant exemption under Section 3(3) of the Act. https://hcservices.ecourts.gov.in/hcservices/ 4. Petitioner purchases 47.50 acres of forest land in SF No.1/3A in Anamalai Hills Village, Valparai Taluk, Coimbatore District from one Mr.P.K.Paul. It is not in dispute that the petitioner did not obtain prior permission from the District Forest Committee as required under Section 3(1)(a) of the Act. The sale was effected on 14.11.1994. On the same day, i.e., on 14.11.1994, the said P.K.Paul sold an equal extent of land, viz., 47.50 acres in the very same Survey Number1/3A, Anaimalai Hills Village to one Mr.P.Venkatasubramaniam. On 24.10.1998, the vendor Mr.P.K.Paul died. It is also not in dispute that a criminal complaint was registered in C.C.No.93/2001 before the Judicial Magistrate Court, Valparai against the vendor P.K.Paul stating that without the previous sanction of the Committee, the land to the extent of 47.50 acres was allotted in a partition between the brothers, viz., Mr.P.K.Francis and Mr.P.K.Paul and the said extent of land was transferred in favour of P.K.Paul in contravention of the provisions of the Forest Act. It is also not in dispute that in that case Mr.P.K.Paul paid the fine imposed. That issue, however, is not relevant for the present adjudication. 5. On 27.1.2006, the petitioner made a representation to the Committee to ratify the sale deed dated 14.11.1994. This was followed by further representation dated 27.9.2006. Since no order was passed, the petitioner filed W.P.No.40026 of 2006 for appropriate relief and this Court in its order dated 25.10.2006 directed the Committee to dispose of the representation within a period of four weeks from the date of receipt of a copy of that order. The second respondent Committee rejected the request by its proceedings dated 17.1.2007. The appeal filed to the first respondent Government was also rejected on 3.12.2007. These two orders are subject matters under challenge in this writ petition. 6. The various points urged by the petitioner before the authorities below and which are canvassed before this Court, are as follows:- (i) The Government has power under Section 3(3) of the Act to exempt any forest land from the provision of Section 3(1)(a) of the Act. (ii) In respect of the sale effected by Mr.P.K.Paul in favour of Mr.P.K.Venkatasubramanian on 14.11.1994 to an extent of 47.50 acres in the very same survey number (i.e.) 1/3A, Anamalai Village, the District Forest Committee in its Proceedings No.74881/2000/A2 dated 18.4.2001 ratified the sale. Therefore, the respondents have acted arbitrarily and the impugned proceedings are tainted by bias. (iii) The Government has earlier granted ratification in respect of the sale of forest land invoking Section 3(3) of the Act in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.124 Forests and Fisheries Department dated 14.2.1986. Similarly, in another case, ratification was granted invoking Section 3(3) of the Act in G.O.Ms.No.915 Forests and Fisheries Department dated 20.8.1987. Hence, the petitioner's plea for exemption from the provisions of Section 3(1)(a) should be considered in view of the power under Section 3(3) of the Act. 7. The Government contended that in the impugned proceedings, the rejection of the application for ratification of the sale was on the basis of a rejection order passed in an earlier G.O.Ms.No.70 Environment Forest (V3) Department dated 9.4.2003, where it is held that Government does not have the power to exempt. 8. A counter-affidavit has been filed reiterating the stand taken in the impugned proceedings. It is stated by Ms.Jenitha, learned counsel, who appears for Mr.S.N.Kirubhanandham, Special Government Pleader (Forest), on instruction that the case of the petitioner was considered by the Government on merits and disposed off stating that the ratification sought for cannot be granted. The exemption granted in other cases cannot be a ground to grant the very same relief. The Government in this case has chosen not to grant the relief in terms of Section 3(3) of the Act and the discretion of the Government cannot be questioned by the petitioner. No special reason has been given in the application for grant of exemption in terms of Section 3(3) of the Act. Therefore, the petitioner's plea for ratification was rightly rejected by the Government. In the G.O.Ms.No.124 dated 14.2.1986 and G.O.Ms.No.915 dated 20.8.1987, there were reasons for ratifying the same, which is absent in the present cases. 9. The rejection of the appeal by the Government in this case based on the earlier case is on a misconception that the Government has no power under Section 3(3) to ratify the same. This stand is taken on a misreading of the section 3(3) of the Act. 10. Section 3(3) of the Act starts with a non-obstante clause. The legislation gave the power to the Government to over ride the effect of sub-section (1) and sub-section (2) of Section 3 of the Act. In effect the power is vested with the Government under Section 3(3) of the Act by over ride and avoid the operation of the provision of Section 3(1)(a) of the Act. A plain reading of Section 3(3) would mean that nothing contained in Section 3(1)(a) of the Act will prevent the Government in exercising its power to grant exemption from the application of section 3(1)(a) and 3(2) of the Act. This power which is available to the Government has been misread in G.O.Ms.No.70 Environment and Forests Department dated 9.4.2003 and that has confused the mind of the Government while passing the impugned G.O. On the contrary, the Government has rightly invoked the power under section 3(3) of the Act in G.O.Ms.No.124 Forest and Fisheries Department dated 14.2.1986 and https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.915 Forests and Fisheries Department dated 20.8.1987. In both the cases, the ratification was granted in respect of sales effected without the prior permission of the Committee as required under section 3(1)(a) of the Act. It is for the Government to consider on case to case basis a plea for grant of exemption from the application of provisions of section 3(1)(a) of the Act, in appropriate cases considering the merits of such claim. To say that the Government cannot grant exemption under Section 3(3) of the Act will be a misreading of the provisions of the Act and will render the special power otiose. Therefore, the reason given in the impugned proceedings that there is no power vested with the Government under section 3(3) of the Act to grant exemption or ratification is a misreading of the provisions of the Act. The rejection of appeal on that ground cannot be accepted and is not tenable. 11. The confusion in the mind of the Authority in this case is clarified in para 9 of the counter-affidavit where the Government tactfully accepted that each case will be dealt with on the merits of the case and merely because exemption is granted in one or other case, the same need not follow in other cases. In other words, the power to grant exemption, is available to be used judiciously. In the present case, the authority while exercising the power has abdicated his authority by placing reliance on G.O.Ms.No.70 dated 9.4.2003 in which case, the Government declined to grant exemption stating that it did not have the power. This will amount to misreading of the provisions of the Act. 12. From the stand taken by the Government in the counter- affidavit that each case has to be decided on its own merits, it is not clear as to how G.O.Ms.No.70 Environment and Forest Department dated 9.4.2003 will be relevant to decide the case of the petitioner. The Government cannot adopt different yardsticks. The grant of exemption/ratification post sale in earlier cases referred to by the petitioner is only to point out to the Government that it has the power under section 3(3) of the Act. The said power has to be exercised judiciously and based on the merits of the claim. 13. In the present case, on going through the impugned government order, the rejection primarily is on the ground that in G.O.Ms.No.70 dated 9.4.2003, the Government refused to grant ratification under section 3(3) of the Act stating that the Government did not have the power. This is based on a misreading of the provision of the section 3(3) of the Act as has been stated above and the impugned orders are, therefore, liable to be set aside on this ground alone. 14. On facts, one issue that has been raised in the counter- affidavit is that in the representation, seeking ratification, the petitioner did not give any reason for seeking the exemption in terms of section 3(3) of the Act and therefore, the Government rejected the https://hcservices.ecourts.gov.in/hcservices/ appeal. This reason does not appear in the impugned orders, but stated in the counter-affidavit. It is trite law that the case of the respondents cannot be improved on the basis of the counter- affidavit or the written submissions vide Mohinder Singh Gill and another – v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee – v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:- "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18): "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older." 15. For the above said reasons, the impugned orders are set aside. The matter is remitted back to the first respondent Government for reconsideration of the petitioner's case for ratification/exemption in terms of Section 3(3) of the Tamil Nadu Preservation of Private Forests Act, 1949. It is desirable that the matter is heard and disposed on or before the end of January, 2010. No cost. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ts To 1.The Secretary to Government, Environment Forest Department, Fort St. George, Chennai-600 009. 2.The Collector and Chairman, Coimbatore District Forest Committee, Coimbatore-18. 1 cc To The Special Government Pleader, SR.63735 1 cc To Mr.K.Sasindran, Advocate, SR.63692 Order in W.P.No.5621 of 2008 PKB (CO) SS (09.12.2009) https://hcservices.ecourts.gov.in/hcservices/