IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27/12/2002 CORAM THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM WRIT PETITION NO.1770 of 1995 and W.P.Nos. 2208, 4318,4319,4320 and 5093 of 1995 W.P.No.1770 of 1995 The Bombay Burmah Trading Corporation Ltd., Singampetti Group, Manjolai, represented by its Legal Adviser ..... Petitioner. -Vs- 1. The Deputy Director, Project Tiger, Mundanthurai Kazhakadu Sanctuary, Ambasamudram, Nellai Kattabhoman District. 2. The Field Director (Project Tiger), Conservator of Forest, 62, James Cottage, Tirunelveli - 627 007. ..... Respondents. Petitions filed under Article 226 of the Constitution of India praying for the issue of writs of certiorarified mandamus as stated therein. For petitioner in : Mr.S.Gopalaratnam, all cases. Senior Counsel for V.Achuthan. For respondents in : Mr.V.S.Sethuraman, all cases. Special Government Pleader. :ORDER The Subject matter of these writ petitions is long pending with a chequered history and will probably continue to be so for some more time in view of the pendency of the proceedings before the statutory authorities at various stages under the Tamil Nadu Forest Act, 1882, hereinafter described as "the Forest Act". 2. The petitioner is a Company incorporated under the Companies Act. The land in question comprises an extent of 3388.78 acres, which was part of Singampatti Zamin. By lease deed dated 12.2.1989 the Zamin granted the right to occupy in favour of the petitioner company for the purpose of cultivating Coffee, Tea, Coco, Sincona, Cardamom, pepper, rubber and other products other than timber trees for a period of 99 years. With the coming into f`orce of the Tamil Nadu Estates (Abolition and conversion of ryotwari) Act, hereinafter called Act 2 6 of 1948, the Board of Revenue by is order dated 13.8.1958 declared that the Company was not entitled to any rights or to remain in possession after 19.2.1952. The Board in exercise its power under Section 19-A of the said Act, directed that the lessee/petitioner shall remain in possession of the entire lease area for the rest of the lease period subject to all the conditions of lease. Certain additional terms and conditions were subsequently added alleged to be in public interest, as follows:- " (i) The company shall not clear any portion of the catchment area of Kusanguli measuring 970 acres at the south east corner the lease area within the boundaries indicated by thick red line in sketch attached, as the clear felling of this area will be detrimental to forest conservancy and will also lead to soil erosion in the catchment area of the Manimuthar River; (ii) the said company shall, in the rest of the area leased out to it, arrange to clothe rapidly with vegetations any extent cleared by it and adopt and maintain effective measures for the prevention of soil erosion; and (iii) notwithstanding anything to the contrary contained in the lease deed dated 12.2.1989, as subsequently amended, if the Company violates any of the terms and conditions of the lease and does not conform to the conditions (i) and (ii) specified above, the lease is liable to be cancelled by the State Government and the State Government may re-enter and take possession of the entire lease area and the Company will not be entitled to any compensation whatsoever thereof." 3. In the mean time, the Government also invoked its power under the Forest Act and issued a proclamation under Section 6 expressing its intention to declare the area as reserved forest. The petitioners filed a Claim petition as provided under the Act and claimed rights of occupancy, ownership and other rights. The Forest Settlement Officer split the claim into two separate petitions namely, Claim No.5 as regards the claim of right of occupancy and Claim No.6 relating to the other rights such as right of way, etc. The Forest Settlement Officer allowed the claim of right of occupancy as claimed by the petitioner and excluded the land from the limits of the proposed reserved Forest. The Government filed an appeal. The learned District Judge, Tirunelveli, allowed the appeal and remitted the proceedings to the Forest Settlement Officer on the ground that the Department did not have the opportunity for filing their counter statement. Both sides now represent that the proceedings are still pending before the Forest Settlement Officer. It is also admitted by the respondents that in view of the pendency of the proceedings on the Claim petition filed by the petitioners, no notification has been issued under Section 16 of the Forest Act declaring the forest as reserved forest. 4. As stated earlier, the Board of Revenue by order dated 13.8.1958 , under Section 19-A of Act 26 of 1948, recognised the right of the Company to remain in possession of the land till the end of the lease period subject to the conditions of lease and had also imposed certain other conditions as extracted above. This was followed by execution of supplemental lease agreements between the Government and the Company on various dates, namely, 31.12.1951, 1.12.1966, 16.8.1973 and 3.10.1981. Certain new conditions were added and last of the agreement dated 3.10.1981 stipulated that the lessee shall not clear any growth of trees in the area mentioned thereunder of an extent of 343.18 hectares and a corridor of a length of a mile along the eastern side of Manimuthar river and the lessee should not violate any of the conditions in the principal lease deed and the conditions subsequently stipulated failing which the lease was liable to be cancelled without entitlement for compensation. 5. The above writ petitions are directed against some of the actions taken by the Government/Forest officials alleging that the petitioners/Company was violating the terms of the lease and the conditions imposed by the Government subsequently and that the Company had resorted to indiscriminate felling of the trees and doing acts of endangering the ecology of the forest area and endangering life which require protection. The following are the reliefs prayed for in the respective writ petitions:- (i) In W.P.No.1770 of 1995 the petitioner questions the action of the Government collecting toll for the entry into the estate and usage of the Board within the Estate which were in fact laid by the Company. (ii) W.P.No.2208 of 1995 is to restrain the respondents from exercising the powers under Chapter II of the Forest Act and the provisions of the Wildlife Protection Act. (iii) In W.P.Nos.4318 to 4320 of 1995, the petitioner is aggrieved by the seizure of firewood which were effected by the Forest officials under Mahazars dated 14.3.1995 and 15.3.1995. The Company seeks for certiorari to quash the said Mahazars and for directions to release the firewood which had been allegedly seized illegally. (iv) In W.P.No.5093 of 1995, the Company has prayed for a declaration that Section 49-A to 49-G of the Forest Act are ultra vires Constitution of India. 6. It is not necessary to deal with the pleadings by both sides in each of the writ petitions as the legal issues raised by the parties are one and the same. The necessary factual details can be referred to if necessary while dealing with t ve writ petitions. The main contention which has been raised in all the writ petitions is that the proceedings under the Forest Act are not concluded as the claims under the Act by the petitioner/Company are pending before the Forest Settlement Officer and no declaration had been issued under Section 16 of the Act. As such the respondents cannot seek to enforce any of the provisions under the Act. Nor can they invoke the Protection of the Wildlife Act, 1972. The various actions of the respondents which are impugned are without jurisdiction and in excess of the power available to them. The factual background of such action alleging any violation by the petitioner of the provisions of the Forest Act and Wildlife Protection Act are factually incorrect and the actions of the Forest officials are illegal, vindictive and causing great inconvenience and hindrance to the administration of the petitioner company. 7. Per contra, in the counter affidavit filed by the Government it it is contended that the Estate having been taken over under Act 26 of 1948, the Government has become the proprietor of the land and due notifications have been issued under the Forest Act to constitute and to include the lands in the reserved forest area. Hence, the provisions of the Forest Act and Wildlife Protection Act have to be strictly implemented. The said provisions have been invoked in public interest for the protection of the forest ecology and preservation of rare species of animals and birds. The petitioner had been indulging in indiscriminate felling of trees and carrying out activities which are detrimental to the forest ecology and endangering the animals and birds. 8. In the above background, Mr.S.Gopalaratnam, learned Senior Counsel for the petitioner, has raised the following questions for consideration: (A) The notification issued under Section 19-A of Act 26 of 1948 is not valid due to several reasons. Firstly, the order proceeds on a misconception as though the land leased to the petitioner by the Zamindar was a forest land. The land was not a forest land as could be seen from the agreement dated 12.2.1929. Secondly, Section 19-A would apply only to non-ryoti land and the lands in question are ryoti lands. Thirdly, even if the lease is to be held as only for nonagricultural purpose, under Section 19, the lessee was entitled to be in possession of the land subject to payment of assessment or ground rent. Fourthly, the order was issued without any notice or hearing of the petitioner and such unilateral exercise of powers was void ab initio. The said order deserves to be ignored and it is not necessary for the petitioners to question the same by separate proceedings. (B) The rights of the petitioner if traced in terms of the provisions under the Tamil Nadu Estates Land Act 1 of 1908 and Act 26 of 1948 , would signify that the rights of the petitioner are not merely that of a lease holder for a specified period. Having regard to the definition of the expressions "agricultural land holder" "private land" and "ryoti land" as defined under Act 1 of 1908, certain valuable rights have accrued in favour of the petitioner such as the right of occupancy of ryoti land (Section 6) and other rights to the land holder in possession of the ryoti land including permanent right of occupancy. Reference is also made to the mining right given to the petitioner under the lease deed. Under the provisions of the Act 26 of 1948 the petitioner is a statutory tenant and is also entitled to the grant of patta. Therefore, the order dated 13.8.1958 limiting the right of the petitioner to be in possession only up to the end of the lease period is illegal. (C) The disputed area is not a forest area. The entire area was only a vacant land without any forest growth and leased out only to raise plantation crops, coffee, tea, cardamom, etc. The area cannot also be included or declared as a reserve forest as they are not lands in possession or at the disposal of the Government. Hence, the said lands cannot also be subject matter of a notification either as a sanctuary or as a reserved forest. In the counter filed by the respondents in W.P.No.1770 of 1995, the petitioner's contention that the land was not at the disposal of the Government had been ignored and had not been denied. (D) Admittedly, an enquiry into the claims of the petitioner under Forest Act was pending and unless and otherwise the land is declared finally to be at the disposal of the Government and final declaration is made under Section 16 declaring the area as reserved forest, the Forest officials cannot seek to enforce the provisions of the Forest Act. Reliance placed on Section 26 of the Forest Act and the Rules made thereunder for preventing any damages being caused to the trees even in areas which had not yet been declared as reserved forest, was not available in the present case for the following reasons:- The estate was earlier under the management of Court of Wards in view of the proprietor being a minor at that time. The provision of Section 26 and the Rules made thereunder were extended to and made applicable to the Zamin Estate only as long as the Zamin was under the management of Court of Wards. The estate was no longer under the management of Court of Wards and hence Section 26 will not apply to the petitioner's estate. (E) The various complaints and allegations against the petitioner as indulging in violation of the forest ecology etc. have no basis at all and such allegations have been made in a vindictive manner. The complaints filed against the petitioner company had been dismissed by the Criminal Courts. The respondents are trying to pressurise the Company through penal provisions by resorting to false allegations. 9. Per contra, learned Government Pleader contends that in these writ petitions, the petitioner cannot be heard to raise any contention as regards their alleged rights under Act 1 of 1908 or Act 26 of 194 8. The rights if any, had become superseded and extinguished after the order passed by the Government under Section 19-A of Act 26 of 194 8. The said order had been passed as early as 13.8.1958 and till date, the petitioner had not taken any steps questioning the said order. On the contrary, the petitioner had accepted the position of the land being vested with the Government and had subsequently executed supplemental agreements. Therefore, the plaintiff is not entitled to any claim of permanent occupancy. After the order under Section 19-A had been passed, the land is vested with the Government and the petitioner had only a permissive right to occupy subject to the conditions imposed by the Government. 10. Though a declaration under Section 16 of the Forest Act, had not been issued, Section 29 enables the Government to issue notification for regulating or prohibiting activities of clearing up of any forest land for cultivation or doing any act which will endanger the ecology or result in endangering the protected species of animals and birds. Learned Additional Government Pleader also took me through the statement of facts contained in the various counter affidavits filed in the above writ petitions dealing with the factual background alleging several commissions and omissions against the petitioner/Company of violating conditions of lease and violations of the provisions of the Forest Act and Wildlife Protection Act. The provisions of Wildlife Protection Act are applicable to the lands under the occupation of the petitioner. Reliance is placed on the judgment of the Supreme Court in T.N.G.THIRUMALAPAD v. UNION OF INDIA (1997 (2) S.C.C., 267) in support of the contention that notwithstanding the applicability or otherwise of the provisions of the various Statutes regulating the activities in forest areas and dealing with the Wildlife, specific directions have been issued to the Tamil Nadu Government banning and placing restrictions on the movement of and cutting of trees and timber and such directions have to be obeyed. 11. Reference is also made to the judgment of P.Sathasivam,j. in W.P.No.4178 of 1995 filed by the petitioner/Company dated 5.11.1999. According to learned Additional Government Pleader, the points raised hereunder and the reliefs prayed for in these writ petitions were raised in that writ petition also and the learned Judge had rendered certain findings and issued directions which are binding on the petitioner and would also operate as res judicata. It is not open to the petitioner to raise those issues again. 12. In reply Mr.Gopalaratnam, learned Senior Counsel contended that the petitioner's land was not part of or included in the Kalakadu reserved forest. A perusal of G.O.Ms.No.183 Forest Department dated 6.3.1976 would reveal that the said notification under Section 18 of Wildlife Protection Act notifying the reserved forest as a sanctuary for protection of Wildlife did not at all relate to the petitioner's land. The name of the Taluk is given as Nanguneri while the petition/ properties is situate entirely in Ambasamudram Taluk. The northern boundary is given as Ambasamudram Taluk and hence, the G.O. is not applicable to the petitioner's land. 13. Learned Senior Counsel also contended that apart from the fact that in the agreement executed by the Zamindar also there is no reference to any forest, there can be no presumption that a land adjoining a forest land should also be a forest land, vide the judgment of a Division Bench of this Court in A.KARUPPAN SERVAI v. STATE OF MADRAS (85 L.W.71). 14. With reference to the order under Section 19-A of the Act 26 of 1948 dated 13.8.1958, passed without notice to the petitioner, learned Senior Counsel referred to the landmark judgment of the House of Lords in RIDGE v. BALDWIN AND OTHERS (1963 (II) All. E.R., 66) in support of his contention that the Rules of audi alteram partem is one of the first principles of justice and non-compliance of the same would render such decisions as null and void. 15. Reference was also made to the judgment of the Supreme Court in NAWAB KHAN v. STATE OF GUJARAT (A.I.R.1974 S.C., 1471). The Supreme Court held that an order which infringes the Rule of audi alteram partem is a nullity and such an order which is void may be directly and collaterally challenged in subsequent legal proceedings. 16. For the same proposition, reference was made to the judgment of Ratnam,J. as he then was, in SUNDARARAJAN v. EDUCATIONAL SOCIETY, TIRUNELVELI AND OTHERS (97 L.W., 410). 17. Reference was made to the judgment of a Division Bench of this Court in KATHIRVELSAMY NAICKER v. SULTAN AM B.. & OTHERS (1946 (II) M.L.J., 371), relying on the observation that the word "agriculture" in Act 1 of 1908 would include culti lantation crops also, as the said expression would include horticulture as well. 18. On the issue of rights of ryots/persons inducted into possession of lands for cultivation, learned Senior Counsel relied upon the observation of the Division Bench in K.GOPALSAMY IYENGAR v. SRI ADMANATHA SAMI DEVASTHANAM, THIRUVAVADUTHURAI (1957 (I)M.L.J., 104) holding that the land which can be cultivated systematically will be cultivable lands and they must be deemed ryoti until contrary was proved. 19. On the appeal filed against the same judgment, in SRI ADMANATHASAMI DEVASTHANAM v. GOPALSAMY IYENGAR (1964 (I) M.L.J., 42) the Supreme Court while dismissing the appeal, held that the land which can be brought under cultivation was a cultivable land, and will be ryoti land under Section 3(16) of the Estates Land Act and where a person has been let into possession of such lands, he will acquire permanent rights of occupancy under Section 6 of the Act. 20. Natesan,J. expressing similar views held in K.L.RAMAMOORTHY AND OTHERS v. STATE OF MADRAS (I.L.R. 1970 (II) Madras, 788) held that the interest of a ryot in the land in the Estate is separate and distinct and he is a co-owner and is occasionally stated to be a coparcener with the landlord. He is not given any compensation as his ownership of 'Kudiwaram' is not affected by taking over of the Estate. 21. In MARIABAKKIAM AMMAL & OTHERS v. DISTRICT FOREST OFFICER, DINDIGUL (1990 (II) L.W., 478) S.T.Ramalingam,J. had occasion to consider and deal with a case of notification under Section 4 of the Forest Act, 1982 and held that in respect of the lands to which the provisions of Act 26 of 1948 was applicable, the mere failure to obtain patta will not change the character of ryoti land and it will continue to be ryoti land under Act 26 of 1948. 22. Learned counsel would also further contend that the right of the petitioner to question and establish his title to the property was in tact and very much available to the petitioner. In SRI-LA-SRI SIVAPRAKASA PANDARAM v. T.PARVATHI (1998 (II) L.W., 188), the Supreme Court held that under the provisions of Tamil Nadu Minor Inam ( Abolition and Conversion of ryotwari) Act, 1963, the Civil Court's jurisdiction to adjudicate title of the property was not barred by the provisions of the said Act. 23. Following the said judgment, a Full Bench of this Court in SRINIVASAN & SIX OTHERS v. SRI MADYARJUNAESWARASAMY (1998 (II) L.W., 189 ) held that a careful analysis of the provisions of the Abolition Laws will show that the vesting on abolition is subject to the preexisting rights of the occupants. It was further held that the scheme underlying the provisions of the Act dealing with the nature of the rights, the manner in which the authorities were entitled to adjudicate such rights and the consequences of such adjudication would disclose that it is not meant to be a substitute or alternate mode of resolution of the ordinary Civil right of the citizen in their attempt to project claims for patta. 24. In STATE OF TAMIL NADU v. RAMALINGASWAMIGAL MADAM (1985 (4) S. C.C.,10) which was an appeal as against the judgment of this Court in K.L.M.RAMAMURTHY v. STATE OF MADRAS (I.L.R.1970 (2) Madras, 788), the Supreme Court held that the Settlement Officer's decision regarding grant or refusal to grant ryotwari patta in respect of a land would not bar or exclude Civil Court's jurisdiction to determine the nature of the land. 25. The above stated statement of facts and submissions of both sides give rise to the following points for consideration:- (I) Whether the petitioner has the right of permanent occupancy arising out of Act 1 of 1908 and Act 26 of 1948, notwithstanding the specific period of tenancy agreed between the Zamindar and the petitioner/Company and whether the order of the Government under Section 19-A of Act 26 of 1948 dated 13.8.1958 is valid and would disentitle the petitioner to claim such rights? (II) In the absence of a declaration under Section 16 of the Forest Act, is it open to the respondents to seek to enforce the provisions of the said Act? (III) Whether the provision of the Forest Act 1882 and Wildlife Protection Act, 1972 are enforceable as against the petitioner? 26. Point No.I:- On this issue though elaborate arguments were advanced on behalf of the petitioner and contended that under the provisions of the Act 1 of 1908 and Act 26 of 1948 the petitioner/Company is entitled to ryotwari patta and even in the absence of ryotwari patta is entitled to permanent occupancy rights and as regards the validity of the order passed by the Government under Section 19-A of Act 26 of 1948, I am inclined to hold that this issue does not arise for consideration in the above writ petitions. The scope of the prayer as well as the pleadings in these writ petitions are restricted, namely, to what extent the provisions of the Forest Act and Wildlife Protection Act could be enforced, whether toll could be collected etc. A perusal of the pleadings/affidavit in support of the writ petitions would also disclose that no such points relating to this issue have been taken. It is only in the reply affidavit filed by the petitioner in W.P.2208/1901 there is an attempt to demur that the petitioner being a cultivating tenant/ryot would be entitled to patta in view of the provisions under Act 26 of 1948. I did hear elaborate arguments on this issue for two reasons. The first reason is personal in wishing not to loose an opportunity for myself to learn and scan the fascinating depths of the Tenure laws and Abolition laws by expert guidance and secondly to assess the extent to which the subject would have a bearing on the provisions of the Forest Act and the reliefs sought for in these writ petitions. 27. Suffice it to say that in these writ petitions, neither the proceedings under Act 1 of 1908 nor Act 26 of 1948, if any, are called in question. It is also pertinent to