IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.24575 of 2009, 5825, 7612, 7613 and 7662 of 2010 and M.P.Nos.2 of 2009, 2,3,1,1,2,1,1 and 2 of 2010 and 1,1 and 1 of 2011 W.P.No.24575 of 2009 : Nawab Shafath Ali Khan .. Petitioner Vs. 1.The District Collector, Nilgiris District, Udhagamandalam, Tamil Nadu. 2.The Sub Registrar, Gudalur, Nilgiris District, Tamil Nadu. 3.The District Registrar, Udhagamandalam, Nilgiris District, Tamil Nadu. 4.State of Tamil Nadu, rep by its Secretary to Government, Environment and Forest Department, Fort St. George, Chennai. (R-4 impleaded vide order dt.22.3.2010 in M.P.No.1 of 2010) .. Respondents W.P.No.5825 of 2010 : A.Shanmughan .. Petitioner Vs. 1.State of Tamilnadu, represented by the Secretary to Government, Environment and Forest Department (FR-5), Fort St. George, Chennai-600 009. 2.The Collector of Nilgiris, Udhagamandalam, The Nilgiris-643 001. 3.The District Registrar, Registration Department, Udhagamandalam-643 001. .. Respondents /Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.7612, 7613 and 7662 of 2010 ; Kamala Devi .. Petitioner in W.P.Nos.7612 and 7613 of 2010 M/s.Masinagudi Farmers and Land Owners Association, represented by its President, Mr.P.T.Varghese, No.6/10,Company Mala, Masinagudi Post, Nilgiris District. .. Petitioner in W.P.No.7662 of 2010 Vs. 1.The State of Tamil Nadu, rep by its Secretary, Department of Forest, Fort St. George, Chennai-600 009. 2.The District Collector, Nilgiris District. 3.The District Forest Officer, Tamil Nadu Preservation of Private Forest, Nilgiris North Division, Ooty, Nilgiris District. 4.The District Registrar, Udhagamandalam, Nilgiris District. .. Respondents in all three writ petitions W.P.Nos.24575 of 2009, 7612 and 7662 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the notification, dated 01.11.1991 issued under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 and published in the Nilgiris District Gazette on 15.11.1991 and to quash the same. W.P.No.5825 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the Special Notification dated 01.11.1991 and published by the second respondent in the Nilgiri District Gazette Extraordinary on 15.11.1991 under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 and subsequent circular dated 21.8.2009 issued in Rc.A4 No.62857/08 by the second respondent is illegal, unjust and abinitio void. W.P.No.7613 of 2010 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 O.Mu.No.494/10, Va3, dated 02.03.2010 on the file of the third respondent, quash the same and consequently to direct the third https://hcservices.ecourts.gov.in/hcservices/ respondent to grant permission to digging of a bore well and to bring in the necessary equipment for the same to the petitioner lands. For Petitioner : Mr.Vijay Narayan, SC for Mr.A.Stalin in W.P.No.24575 of 2009 Mr.S.Gunaseelan in W.P.No.5825 of 2010 Mr.Mohammed Shaffiq, Mr.K.Magesh in W.P.Nos.7612, 7613 and 7662 of 2010 For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.S.M.Kirubanandan, Spl.G.P.(F) and Mr.K.Rajasekar, GA(F) Miss.C.Devi, GA COMMON ORDER The short question that arises for consideration in this batch of writ petitions is whether the action of the District Collector, Nilgiris declaring certain private lands as forest under the power vested under Section 1(2)(ii) of the Tamil Nadu Preservation of Private Forest Act, 1949 (for short TNPPF Act) is unconstitutional and ultravires of the provisions of the said Act? 2.The notification of the District Collector, Nilgiris, dated 1.11.1991 (published in the Nilgiri District Gazette Extraordinary, dated 15.11.1991) is the subject matter of these writ petitions. By the aforesaid notification, the District Collector had notified certain lands in the revenue villages of Udagamandalam and Gudalur Taluks. Those villages in which lands were notified in respect of the two taluks were as follows: UDAGAMANDALAM TALUK 1.Hullathy 2.Naduvattam 3.Kadanad 4.Sholur 5.MAsinagudi GUDALUR TALUK 1.Moonanad 2.Nelliyalam 3.Cherangode 4.Cherumulli 5.Nellakotta 6.Mudumalai 7.Sreemadurai 8.Devala 9.Padanthorai 10.O'valley https://hcservices.ecourts.gov.in/hcservices/ 3.The schedule appended to the notification describes the names of villages. In Part A, extent of patta lands was notified and that in Part B, in terms of Section 17 of patta lands under Gudalur Janmam Act were notified. The schedule also contained the serial number, total extent of land, the extent notified in the notification and the names of pattadars. It is unnecessary to reproduce the schedule as the issues raised in these writ petitions are based upon legal grounds. 4.Even though the notification comprised more than 1000 pattadars, before this court only four pattadars have filed the writ petitions. In W.P.No.7662 of 2010, it is the association named as Masinagudi Farmers and Land Owners Association represented by its President has filed the writ petition seeking for declaration in respect of the members of the said association. Though the impugned notification is of the year 1991, the association itself was started only on 18.1.2010 with registration No.1/2010. While broad objectives were set out in paragraph 2 of the affidavit, no further details were given in the affidavit with reference to its membership and the details of ownership. The said writ petition filed by the association with omnibus prayer to strike down the notification which is more than 20 years old and without even revealed its membership, is liable to be rejected on that short ground. Such writ petition is not only not maintainable, but can never be encouraged as it lacks details about the nature of relief claimed by them. Even the President who had sworn to the affidavit, did not show that he owns any land and that he is an affected party in terms of the notification. The affidavit is also silent as to how all of its members were affected by the said notification. It is in all likelihood has been started only with a view to file the writ petition and not for any other purpose. However, in respect of the other four writ petitions, since individual pattadars are before this court, this court is inclined to go into the averments made therein. 5.Though it was strongly urged by the learned Advocate General Mr.P.S.Raman and also such a contention was raised in the counter affidavit that the writ petitions are liable to be rejected on the ground of laches, but since larger questions were involved, this court is inclined to go into the merits of the allegations made by the petitioner land owners. 6.The contention raised by the land owners was that the said notification issued under Section 1(2)(ii) of the TNPPF Act was illegal and violative of Articles 14, 19(1)(g) and 300-A of the Constitution. It was argued that the notification can be issued under the said provision only in respect of private forest having contiguous area of atleast two hectares. But the impugned notification overlooks the said power and proceeded to declare the area as forest. It also covers the agricultural lands which are having ryotwari patta. It also covers Temples, Churches, Mosques, Singara Power house, school buildings, Masinagudi Police Station, panchayat office as well as panchayat Board and various survey https://hcservices.ecourts.gov.in/hcservices/ numbers. Therefore, it was argued that it was due to complete non application of mind on the part of the District Collector. When power has been given only to notify in respect of forest having contiguous area exceeding two hectares and many lands in the notification are not having contiguous area of two hectares, some of which are few cents and therefore, there could not have been a notification under the said power. 7.It was also stated that if the forest has spontaneous growth of trees and shrubs and if there is planned activity or cultivation, which leads to the growth of tees and shrubs, those lands cannot be treated as forest under the Act. The notification inasmuch as covers ryotwari patta lands to be brought under the forest was not valid and such lands can never be considered as forest lands. It was never the intention of the TNPPF Act to prevent agricultural operations in such lands or to impose a restraint on transfer or alienation of such lands which are not private forest. Since no detailed survey had been undertaken before the issuance of the notification, it led to classifying even the buildings and structures as being forest area under the notification. 8.The Government order in G.O.Ms.No.2837, Agriculture Department, dated 17.9.1969 which became the basis for issuance of the impugned notification, it could be seen that the said order was issued only to ensure that fauna and flora of the region was not affected by any industries and it sought to place a ban on such industries. In fact, after the publication of the notification, when there was an huge public protest in the area, the Government had issued a press release stating that the said notification will not affect the normal avocation and livelihood of the people nor purchase and sale of lands notified or construction of new building will be subject to any restriction. Notwithstanding the press release, the District Forest Officer, Nilgiris (North) and the District Collector were insisting that all Government authorities including the Registration Department for requiring compliance under Section 3 of the Act. It was also stated that the notification under Section 1(2) can be issued only by the committee consisting of five persons. The District Collector has no power to issue such notification. Under Section 12A of the TNPPF Act, it is mandated that the notification as soon as possible after it is issued, should be placed on the table of the Legislative Assembly. If the legislative assembly agrees in making any modification in the notification or agrees that the notification should not be issued, then the notification will have an effect only on such modified form or will have no effect as the case may be. It also provides that it is open to the legislative to approve or disapprove the notification or make modification. Therefore, placing such a notification before the legislative assembly is a mandatory requirement under law. The notification will have effect only after the approval by the legislative assembly. The said provision under Section 12A will have a check by the legislature to control the delegated legislation or conditional legislation as the case may be. Sine the said notification has not been placed before https://hcservices.ecourts.gov.in/hcservices/ the legislative assembly till date, it is a still born child and liable to be set aside. 9.Further, it was stated that the notification under Section 1 of the Act has serious civil consequences. It requires before notification, the person affected should be given an hearing. It must also be noted that after the notification was published, several hundred legislatures had taken place. If at this juncture, the notification is given effect to, the people in that locality will be put to grave hardship. It is under these circumstances, the writ petitions came to be filed. Pending the writ petition, this court had granted an interim stay of the impugned notification initially for a limited period and was extended subsequently from time to time. Aggrieved by the said interim stay, the respondents have filed an application to vacate the stay together with supporting counter affidavit. 10.In some other writ petitions, it was also stated that the notification under Section 1(2)(ii) of the TNPPF act can apply only to the forest situated in the Estates defined under the Tamil Nadu Estates Land Act, 1908 in the State of Tamil Nadu. The lands belonged to farmers of Gudalur and Pandalur Taluks and also of Masinagudi village do not come under the purview of the Tamil Nadu Estates Land Act, 1908. Since a portion of the Nilgiris District known as South East Vayanad, it was excluded from the operations. G.O.Ms.No.2837, dated 17.9.1969 issued under Section 6(1) of the TNPPF Act to ban the starting of the industries within the radius of five mils around the Mudumulai Wild Life Sanctuary. It was also stated that the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 is sufficient to prevent the deforestation of Nilgiris District. The said Act also provides for a committee and for regularization of cutting of trees and cultivation of lands in hill area. The TNPPF Act is the general Act and the subsequent special Act, i.e., the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 will prevail over the same. 11.In the counter affidavit filed by the District Collector, it was stated that the TNPPF Act, 1949 was passed to prevent the destruction of private forest and to protect the environment. The Act has been in force for over 60 years. The impugned notification was notifying the patta lands within a radius of five mils adjoining the Mudumalai Sanctuary as forest in term of Section 1(2)(ii) of the TNPPF Act with reference to the order issued by the State Government in terms of G.O.Ms.No.2837, Agricultural Department, dated 17.09.1969. By virtue of the notification, all that is requires is the pattadar owning the land must get prior permission from the Committee for selling, mortgaging and leasing the lands otherwise notified under the Act. The said requirement has been made in terms of Section 3(1)(a) of the TNPPF Act. Under Section 3(1)(b), any alienation in contravention of the provision will be null and void. Further the land notified under the Act cannot be used for expansion of plantation or for any non forest purpose without any prior permission in writing of the Committee constituted under Section 2A https://hcservices.ecourts.gov.in/hcservices/ of the Act. Section 3(2) mandates that no owner of any forest has any right to do any Act likely to denude the forest or diminish its utility as such. The term "forest" is defined under Section 2(aa) and it includes definition covers even waste or communal land containing trees, shrubs, reeds, pasture land and any other class of land declared by the State Government by notification. 12.It was further stated that apart from that the Forest (Conservation) Act, 1980 contains provision under Section 2 prohibiting user of any forest land or any portion thereof for non forest purpose. The Supreme Court while passing orders in proceedings in T.N. Godavarman Thirumulkpad v. Union of India reported in (1997) 2 SCC 267, vide order dated 12.12.1996 had issued extensive directions to the State of Tamil Nadu. It had also held that the provisions of the Forest (Conservation) Act, 1980 will apply to all forest irrespective of ownership or classification. It was also stated that some of the petitioners are claiming that they are having plantation and were given occupation under the scheme of regularization by the Revenue Divisional Officer only in the year 1972. Pattas were granted after the stipulated period of 10 years' possession and there is no difficulty in applying the TNPPF Act, 1949. The notification was issued only in terms of the provisions of the Act. The Government had also noticed that there has been mushrooming growth of land transactions and building, resorts in the area. Therefore, the committee is required to grant approval before alienation of properties. It was also stated that permission was granted by the District Committee depending upon the bona fide nature of application. The District Committee has been meeting every month for many years. Through a press release, it was informed to all concerned that the Committee will be meeting every fortnight to deal with the applications. 13.It was further stated that the Government by virtue of the power conferred on it, take remedial measures to implement the provisions of the Act. The District Collector had also requested the Inspector General of Registration to issue necessary instructions to the Registrar and Sub Registrars not to register any land coming under Section 17 of the Gudalur Janmam Act, 1969 as well as the lands notified under the TNPPF Act, 1949. It was also stated that the District Committee has been granting permission to bona fide applicants and that the list of such permissions granted for the period from 1986 till 2009 has been set out in paragraph 9 of the counter affidavit. Therefore, it was requested that the writ petitions should be dismissed. 14.The learned Advocate General also gave a field summary of 1991 notification in respect of each village giving details of total number of fields covered and total area in terms of acreage and per field, which reads as follows: FIELD SUMMARY OF 1991 NOTIFICATION : https://hcservices.ecourts.gov.in/hcservices/ Total Number of Fields Total area (acres) Average Area per field 11891 46599.67 3.92 Fields excluding large holdings Total Area (acres) Average Area per field 11489 16630.91 1.45 Fields of Large Holdings Total Area (acres) Average area per field 402 27032.76 67.25 15.Reply affidavits were also filed in some of the wit petitions reiterating the contentions raised by them. 16.Before proceeding with the rival contentions, it is necessary to extract certain provisions of the Act which are relevant for the purpose of the case. Section 3(2) of the Madras Estates Land Act, 1908 reads as follows: "3(2)"Estate" means - (a)any permanently settled estate or temporarily settled zamindari ; (b)any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; (c)any unsettled palaiyam or jagir. (d)any inam village of which the grant has been made, confirmed or recognized by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees." 17.Sections 1(2)(ii) and 1(2)(iii) of the Tamil Nadu Preservation of Private Forests Act, 1949 reads as follows: "1(2)(ii)to forests situated in estates as defined in the [Tamil Nadu] Estate Land Act, 1908, in the [State] of Tamil Nadu. (iii)to private forests situated in other areas in the State of [Tamil Nadu] and having a contiguous area exceeding (2 hectares) which may be declared by the [committee:] to be forests for the purposes of this Act, by notification, in the District Gazette) https://hcservices.ecourts.gov.in/hcservices/ but does not apply to reserved forests constituted under the Tamil Nadu Forest Act, 1882, and lands at the disposal of the Government as defined in that Act. Explanation:-A private forest exceeding [2 hectares] in extent shall not cease to be such by reason only on the fact that, in a portion thereof, [trees, shrubs or reeds are felled or cut] with or without the permission of the committee or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances.]" 18.Section 2(aa) defines the term "Forest" which reads as follows: "2(aa)'Forest' includes waste or communal land containing [trees shrubs and reeds] pasture land and any other class of land declared by the [State] Government to be a forest by notification in the Fort St. George Gazette." 19.Section 3 deals with the preservation of private forests, which 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. Explanation:-Nothing in the sub-section shall be construed as preventing the owner from selling or otherwise dealing with the right together and remove forest produce other than [trees, timber and reeds] in the usual or customary manner for a period not exceeding two years. (b)Any alienation in contravention of clause (a) shall be null and void- (i)if the alienation is of any forest declared by [the 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) [......] (iii)if the alienation is of any forest or of any portion of such a forest, and is made on or after the 16th August 1946.] [(2)No owner of any forest and no person claiming under him, whether by virtue of a contract, licence https://hcservices.ecourts.gov.in/hcservices/ or any other transaction entered into before or after the commencement of the Tamil Nadu Preservation of Private Forests Act, 1946, or any other person shall without the previous permission of the [Committee] [(a) cut trees or reeds) (b) do any Act likely to denude the forest or diminish its utility as food. Provided that nothing contained in this sub- section shall apply to the removal of dead or fallen trees or to any act done for the usual or customary domestic purposes or for making agricultural implements.] (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 there in from all or any of the provisions of this section." 20.Section 4 of the TNPPF Act deals with appeal provision, which reads as follows: "4.Appeals:-Any person aggrieved by an order under clause (a) of sub-section (1) of section 3 or under sub-section (2) of that section in regard to the sanction or permission referred to in that clause or sub section may, within two months of the receipt of such order prefer an appeal in writing to the [State Government]. The [State Government] shall pass such orders on the appeal as they may think fit." 21.Section 12-A of the TNPPF Act reads as follows: "12-A.Rules and orders to be placed before the legislature:-(1)(a)All rules made under this act, shall be published in the [Tamil Nadu Government Gazette] and unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published. (b)All notification issued under this Act shall unless they are expressed to come into force on a particular day, come into force on the day on which they are published. (2)Every rule made or notification issued under this Act, shall as soon as possible after it is made [or issued], be placed on the Table of the Legislative Assembly, and if, before the expiry of the session in which it is so placed or the next session the Legislative Assembly agrees in making any modification in any such rule or [notification] or the Legislative Assembly agrees that the rule [or notification] should not be made [or issued] the rule https://hcservices.ecourts.gov.in/hcservices/ [or notification] shall there after have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule [or notification]." 22.Starting the main ground of attack, Mr.Vijay Narayan, learned Senior Counsel submitted that inasmuch as Section 12-A was not complied with, the notification was a still born child and cannot be acted upon. For that purpose, the learned Senior counsel relied upon a judgment of the Supreme Court in Quarry Owners' Association v. State of Bihar reported in (2000) 8 SCC 655 and relied upon the following passages found in paragraphs 44 to 48 which reads as follows: "44.This takes us to the next submission, whether the introduction of sub-section (3) of Section 28 by Parliament in any way strengthens the guidelines and puts a check on the exercise of power by the State Government. Sub-section (1) of Section 28 refers to the placement of every rule and every notification made by the Central Government before each House of Parliament for a period of 30 days when the same becomes effective, subject to its modification, if any. Sub-section (3) of Section 28 directs placement of every rule or notification made by the State Government before each House of the State Legislature. The submission is, there is no provision in sub-section (3) as in sub-section (1), of such rule being subject to scrutiny for its approval or modification by the State Legislature. The submission is, sub-section (3) in no way places any check on the State Government, as the State Legislature is not entrusted with power to approve or modify. In other words, introduction of sub- section (3) is merely for the sake of information and nothing more. Further it is submitted, when language of two different sub-sections