IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06. 2011 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR Writ Petition No.12980 of 2011 and M.P.No.2 of 2011 1. P.Nagamma 2. P.Nainappa Reddy ... Petitoners VS 1. Conservator of Forest, Chennai Region, Chennai.6 2. The District Collector, Thiruvallur District, Thiruvallur. 3. The District Forest Officer, Thiruvallur District, Thiruvallur. 4. The Forest Ranger, Tiruttani Region, Thiruvallur District. ... Respondents . . . Prayer: Writ petitions filed under Article 226 of the Constitution of india for a writ of mandamus forbearing the third and fourth respondent or their men, agents and any other subordinates from interfering with the petitioners' peaceful possession and enjoyment of land in Survey No.93 (old Survey No.86) Gopalakrishnapuram vilalge, Tiruttani Taluk, Tiruvallur District except by due process of law and to direct the second respondent to grant assignment of patta in Survey No.93(old survey No.86) Gopalakrishnapuram Taluk, Tiruttani Taluk, Tiruvallur District in favour of the petitioners to the extent of land in their occupation on the basis of the proposal submitted by the Tahsildar, Tiruttani by a proceeding dated 29.11.1970 in Rc.11571/70.B.1 and the subsequent proceeding dated 21.10.1998 in R.C.2352/93 B1. . . . https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.K.B.Vivekanandhan For Respondents : Mr.M.K.Subramanian Spl.G.P.(Forest)(R1,3 and 4) Mrs.Velumani (R2) O R D E R This writ petition has been filed for a mandamus to the respondents to forbear the third and fourth respondents from interfering with the petitioners' peaceful possession and enjoyment of land in Survey No.93 (old Survey No.86) Gopalakrishnapuram vilalge, Tiruttani Taluk, Tiruvallur District except by due process of law and to direct the second respondent to grant assignment of patta for the above said land. 2. In support of the above relief the petitioners plead as follows: According to the petitioners, they are agricultural coolies and they have been living in the hill area for several decades and they have been cultivating the above stated land. The petitioners referred to certain proceedings of the Tahsildar, Tiruttani to seek the relief of assignment of patta for the above stated property. The further case of the petitioners is that the Forest Ranger, the fourth respondent herein is interfering and trying to disturb the peaceful possession of the petitioners and that is why they have come forward to file the present writ petition for the above relief. 3. The learned counsel for the petitioners relied upon the earlier order of this Court in W.P.No.7176 of 1982 dated 16.02.1990 passed by Mr.Justice S.Ramalingam(as he then was) wherein it has been stated that the land in question has been assessed as dry waste (hill poromboke) and therefore, the petitioners' right should be protected as the lands have not been denotified as "reserved forest land' by the Forest Department in the manner prescribed by law even as on today and they are in possession. He also relied upon a proceeding issued by the respondents in respect of adjacent lands wherein the forest department has issued notification under Section 4 of the Act and declared the reserved lands as reserve forest land whereas in the present case no such action has been taken. Hence, respondents have no authority to interfere. On this premise they submit that the petitioners, who are in occupation of the land, should not be disturbed until the Forest Department notifies the land as "reserved forest land". According to the petitioners, the said notification has not been issued and therefore, the respondents have no right to enter upon the land. 4. The respondents were put on notice and Mr.Subramanian, Special Government Pleader (Forest) appears for respondents, 1, 3, and 4 and https://hcservices.ecourts.gov.in/hcservices/ Ms.V.M.Velumani, Special Government Pleader appears for the second respondent, District Collector and contended that the land belonged to the Government and has been notified as reserve land and therefore, petitioners cannot claim any right even if any revenue authority has granted some right overlooking the notification. 5. The Special Government Pleader (Forest) relying upon the notification issued under Rule 5 of the General Rules for the management of reserved and unreserved lands framed in terms of Section 26 of the Tamil Nadu Forest Act 1882 stated that the land in question is classified as a reserved land for the purpose of taking further action and to be notified as reserved forest land. He drew the attention of the Court to various rules in particular to Rule 1, Rule 2 and Rule 3 which define "Reserved Land'" and un-reserved land" and Rule 5 which gives the power to the Collector to notify the lands, that are required for declaring as "reserved forest" to plead that petitioners have no right over the land in any manner. Rules 1, 2, 3 and 5 reads as follows: "Rule 1. Subject to all rights now legally vested in individuals and communites, the use of the pasturage Government and not included in a reserved forest shall be regulated by the followng rules. 2. Land at the disposal of Government may for the purpose of these rules, be classed as follows:- a. Land of which the Government has acquired the ownership or possession by purchase, lease or otherwise, b. Assessed but unoccupied land, c. Unassessed and unoccupied land. 3. "Reserved Land" includes all land notified under Sectiion 4 of the Forest Act and any area specially declared by the Collector to be Reserved land in the manner prescribed in rule 5. "Unreserved land" for the purpose of these rules means, land at the disposal of Government which land is not "reserved land" nor is under the control of local bodies or any department of Government other than the Revenue and Public Works Department. 5. So much of the three classes of land, specified in Rule 2, as the Collector of the district and the Conservator may consider likely to be ultimately required as reserved forest, whether for the supply of timber, of fuel or of fodder, may be set apart for reservation. For such land a notification under Section 4 of the Act shall, in the usual course, be submitted for the approval of Government, provided that no land of clases (a) and (b) shall ordinarily be so recommended for reservation, unless it has been unoccupied for at least eighteen months." https://hcservices.ecourts.gov.in/hcservices/ 6. The notification in terms of the above rule was published in the Madras-Chengalpet District Gazette No.5 dated 01.05.1969. The land, which is the subject matter of the present writ petition falls under Serial No.6, village No.134, Gopalakrishnapuram and Survey No.93. (old Survey No.86) 7. This notification includes several adjacent villages and the forest department has been taking action to declare the lands as forest lands and has done so in respect of some land. Insofar as the present land is concerned, the stage of declaring the lands as "reserved forest land" is still under active consideration. In view of the encroachment made by the petitioners, who have no right over the property, the respondents have initiated action by issuing notice under the Tamil Nadu Forest Lands (Eviction of Encroachment ) Rules 1981, Vide G.O.Ms.No.832, Forest and Fisheries , dated 13.07.1981. This notice was issued in exercise of powers conferred by Section 68 A of the Tamil nadu Forest Act 1882. (Tamil Nadu Act V of 1882) It is stated that such notice which was sought to be served on the petitioners, was refused and therefore, service of notice was effected by way of affixture. 8. The learned Special Government Pleader (Forest) also relied upon the orders of this Court in W.P.No.20073 of 2009 dated 15.12.2009 and W.P.No.16140 of 2010 dated 28.02.2011, wherein the writ petition filed by some other persons in respect of the very same Survey number and village was dismissed by this Court directing the encroachers to give their explanation to the notice issued under Section 68 A of the Act. He also relied upon the decision of Apex Court in the case of T.N.Godavarman Thirumulpad VS Union of India and others in Writ Petition (Civil) No.202 of 1995 and the order dated 12.12.1996 to state that the "reserved lands" in this case would fall under the definition of 'forest' and therefore the petitioners, who are encroachers, are not entitled to any relief. 9. According to the Special Government Pleader, the description of the word "Forest" would cover all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term " Forest Land", according to Section 2 will not only include "Forest" as understood in the dictionary sense, but also any area designated for declaring as forest in the Government record. 10. The learned Government Pleader also relied upon the definition contained in Section 68 A of the Tamil Nadu Forest Act to state that the authority has the power under Section 68- A of the Act to remove any persons unauthorisedly occupying any land in reserved forest or any land at the disposal of the Government. Therefore, when the land in question has been notified as"reserve land" for the purpose of https://hcservices.ecourts.gov.in/hcservices/ declaring the same as "reserved forest" under Section 4 as early as on 01.09.1969, the petitioners, who have no right, title or interest over the property are liable to be evicted as they are unauthorisedly occupying the land meant for declaring as 'Reserved Forest". He, therefore, prays for dismissal of the writ petition. 11. Insofar as the plea of the petitioners that the land in qeustion has not been declared as reserve forest land and therefore, the authority have no power to interfere cannot be justified, as admittedly, as early as in the year 1969, the Government in its Gazette No.5 notified on 01.05.1969 has clearly indicated that several lands are reserved for declaring them as reserved forest. Before publishing a notification under Rule 5 of the General Rules for management of reserved and unreserved lands, the land to be so denotified should have been unoccupied 18 months prior to that date. Therefore, when the gazette notification No.5 was issued, the land is deemed to be unoccupied for 18 months. Thereafter, it continues to be government land, reserved for the purpose of declaring as reserved forest and the petitioners, therefore, cannot claim any right over the land on the ground of possession by whatever means. So long as the gazette notification is not challenged, no right will flow to the petitioners to claim any right over the said land. 12. The definition of 'reserve lands' under Rule 3 makes it all the more clear that it includes the lands of the forest or any area specifically declared by the Collector in the manner presecribed under Rule 5. So, the word 'reserved land' includes the land required to be notified under Section 4 of the Forest Act. The definition as above clearly wipes out the petitioners' plea that the reserved forest lands alone can be interfered with by the respondent, forest department and not reserve lands. The Notification No.5 issued in the year 1969 is under a rule framed under Section 26 of the Tamil Nadu Forest Act, thereby making it clear that the forest Department has right, title and interest over the property. It is of no consequence that the declaration as reserve forest has not been made so far. 13. The Hon'ble Supreme Court in T.N.Godavarman Thirumulpad's case has clearly indicated that no patta with regard to any forest land shall be granted nor any encroachment shall be regularised. That order was passed on 07.05.1999. The interpretation given to the word "Forest" and "Forest Land" is wide enough to cover the definition of reserved lands meant for declaring as reserved forest land. 14. The petitioners can claim no right, title or interest over the property, much less, legal right to question the action of the respondents. Since their relief as stated above cannot be considered, the question of granting patta has to be summarily rejected. 15. In view of the above finding, the petitioners will fall https://hcservices.ecourts.gov.in/hcservices/ under the category of unauthorised occupant or tresspassers. Section 68 A , under which notice was issued clearly gives the power to the Forest Officer to exercise such power in respect of the reserved forest land or any land at the disposal of the Government for evicting any person unauthorisedly occupying it. When power is given to the officer under the Act as above, the petitioners cannot now plead that unless and otherwise the land is declared as reserved forest, the authority will have no right to interfere with the petitioners' occupation of the property in question . 16. Section 68 A reads as follows: "Liability of personunauthorisedly occupying any land inreserved 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 Forerst Ranger or an officer of the Revenue department nor below the rank of Tahsildar having jurisdiction over area in which such land is situated, in such manner, as may be prescribed an any crop or other product raised on such land, shall be liable to forfeiture any building or other construction erected or anythng deposited thereon shall also be liable to forfeiture. Forefeiture under this secton, shall be adjudged by the officer referred to above and any property so forfeited, shall be disposed of in such 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 may be prescribe; and (b) the representation, if any received in pursuance of such notice has been duly considered by such officer concerned." Section 68 A is applicable to land be it reserved land or reserved forest land or Government land. The power given to the authority is specific and unambiguous. Therefore, the petitoners will have to face the notice inthe manner specified. Therefore, the relief sought for by the petitioners to forbear the respondents from interfering with their peaceful possession and enjoyment cannot be countenanced. 17. Admittedly, the land in question has been reserved for the purpose of declaring as forest land. Inspite of the order passed in W.P.No.7176 of 1982 as early as on 16.02.1990, the revenue authorities have not granted patta or issued other proceedings granting the benefit of the petitioners. If, as contended by the learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the petitioners, there is some record to show that they were given conditional patta, petitioners can work out their remedy in the Section 68 A proceedings. 18. Insofar as the notice issued under Section 68 A is concerned, the learned counsel for the petitioners has been given a copy of the notice issued to the petitioners once again as it was served by way of affixture and the petitoners are entitled to submit their reply to the authorities concerned within a period of 15 days from the date of receipt of a copy of this order and the respondents/authorities shall decide the issue in accordance with law and procedure, within a reasonable period, preferably within four weeks thereafter. 19. The relief sought for by the petitioners are negatived and the interim order granted in M.P.No.2 of 2011 is vacated and the petition is dismissed. The Writ Petition is dismissed giving liberty as above. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pal To 1. Conservator of Forest, Chennai Region, Chennai.6 2. The District Collector, Thiruvallur District, Thiruvallur. 3. The District Forest Officer, Thiruvallur District, Thiruvallur. 4. The Forest Ranger, Tiruttani Region, Thiruvallur District. +2ccs to Spl. Govt. Pleader (F) Sr 383332,36978 +1cc to Govt. Pleader Sr 38728 SJ(CO) km/1.8. W.P.No.12980 of 2011 https://hcservices.ecourts.gov.in/hcservices/