Madras High Court
M.Venislas vs The Secretary To The Government Of ... on 18 August, 2021
W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.08.2021
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.9592 of 2020
and
W.M.P(MD).Nos.8644 and 8647 of 2020
(Through Video Conference)
M.Venislas .. Petitioner
Vs.
1.The Secretary to the Government of Tamilnadu,
Land Administration,
St.George fort, Secretariat,
Chennai.
2.The Commissioner of Land Revenue Administration,
St.George fort, Secretariat,
Chennai.
3.The Director of Survey and Land Records,
Ezhilagam, Cheppauk,
Chennai.
4.The District Collector cum The President,
District Forest Organisation,
Kanyakumari District,
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
Nagercoil. ..Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for records relating
to the impugned notification in 134/0 Col.1-16-9-39-30-35 and in
Mu.Mu.M1/43121/2017, dated 06.06.2020, passed by the 4th respondent,
quash the same and consequently, direct the respondents to remove the
petitioner's property item serial No.334 from the Gazette notification.
For Petitioner : Mr.R.Jenifir Bibin
For Respondents : Mr.R.Suresh Kumar
Government Advocate
ORDER
Prayer sought for herein is for a Writ of Certiorarified
Mandamus, to call for records relating to the impugned notification in
134/0 Col.1-16-9-39-30-35 and in Mu.Mu.M1/43121/2017, dated
06.06.2020, passed by the 4th respondent, quash the same and
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
consequently, direct the respondents to remove the petitioner's property
item serial No.334 from the Gazette notification.
2.That the petitioner purchased a private patta land at S.No.809 at
Kalkulam Village, Kanyakumari District in the year 2010 by way of valid
sale deed, since then, he had been in possession and enjoyment of the
property.
3.In this regard, it is the case of the petitioner that, though the said
land is primarily an agricultural land, and for the said purpose alone, it
had been purchased, subsequently, the petitioner came to know that the
land in question has been included as one of the item in the notification
issued by the fourth respondent on 31.07.1980, under Section 1(2)(iii) of
the Tamilnadu Preservation of Private Forest Act, 1949, as amended by
the Tamilnadu Act, 28 of 1979. (in short 'the Act').
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
4.Because of the insertion of the property in question, belongs to
the petitioner in the said notification, dated 31.07.1980, the petitioner
eventhough, is having absolute right over the property, but cannot enjoy
such rights, as each and every aspect, to encumber the property or
otherwise to develop the property, he has to approach the District Forest
Committee headed by the fourth respondent, constituted under the said
Act. Moreover, the very adjacent lands, that is, adjacent survey numbers
had been not included in the said notification, however, the petitioner's
land in S.No.809 alone was included, therefore, on these grounds, the
petitioner, in order to release the land from the clutches of the said
notification under the Act, had given a detailed application, dated
26.10.2017, to the fourth respondent, that is, the District Forest
Committee. The prayer sought for in the said application of the petitioner
is to remove the land at S.No.809, Kalkulam Village, Kalkulam Taluk,
Kanyakumari District, from the Private Forest Preservation Gazette
Notification, dated 31.07.1980. Though such an application was
submitted by the petitioner for the consideration of the fourth respondent,
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
that is, the District Forest Committee, completely deviating from the said
issue raised by the petitioner and against the petitioner's prayer, the
fourth respondent District Committee, by order, dated 06.06.2020 has
passed an order permitting the petitioner to alienate the land in question,
if he wishes to make it within a period of one year, that is, within
27.11.2019 to 26.11.2020.
5.Aggrieved over the said order dated 06.06.2020, where though
such permission for alienation was not asked for, that was considered and
granted, whereas the actual prayer sought for by the petitioner to remove
the land in question from the purview of the notification issued in this
regard by the fourth respondent dated 31.07.1980 under the said Act, was
not granted, the petitioner has preferred this writ petition with the
aforesaid prayer.
6.Reiterating the aforesaid facts, learned counsel for the petitioner
would submit that, the petitioner's land is an agricultural land and in
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
order to develop the agriculture further the land was purchased by the
petitioner, however, for each and every aspect since the petitioner has to
approach for getting permission from the fourth respondent District
Committee which, according to the petitioner, is absolutely unnecessary,
because the land in question should not have been or ought not to have
been included as one of the land in the notification, dated 31.07.1980,
therefore, the petitioner had made an application to remove the said land
from the clutches of the said notification made under the Act. However,
without considering the said aspect, completely in deviation of the prayer
sought for by the petitioner, the fourth respondent District Committee
has passed the impugned order dated 06.06.2020, giving alienation
permission to the petitioner in respect of the land in question within one
year period, the learned counsel, in this context, would submit that the
petitioner has never asked for any permission for alienation of the land at
present, and his only endeavour is to remove the land in question from
the notification issued in this regard as referred to above. Therefore, the
learned counsel for the petitioner would contend that, the impugned
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
order dated 06.06.2020 passed by the fourth respondent District Forest
Committee is absolutely out of non-application of mind, and therefore,
on that ground itself, the impugned order is liable to be quashed and
suitable direction can be given to the respondents, especially, the fourth
respondent, to consider the request of the petitioner for removal of the
land in question from the purview of the notification, dated 31.07.1980.
7.Per contra, Mr.R.Suresh Kumar, learned Government Advocate,
appearing for the respondents, has submitted that, insofar as the
notification, dated 31.07.1980 is concerned, where, number of lands in
Kanyakumari District, including the land in question belongs to the
petitioner, had been included. The said notification had already been
challenged in a batch of writ petitions, where, ultimately, the matter has
been decided by a Division Bench of this Court in the matter of
Kanyakumari District Planters Association v. State of Tamilnadu, Rep.
by the Commissioner and Secretary to Government, Forest and
Fisheries Department, Chennai-9 and others reported in 2016 SCC
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W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
Online Mad 1548: (2016) 2 LW 289(DB): 2016 (2) Mad LJ 513.
8.Relying upon the said Division Bench Judgment, the learned
Government Advocate would submit that, the very provisions of the
Private Forest Act were declared to be intra vires and when the
impugned notification therein, dated 31.07.1980, which is also the
notification herein, under which the land of the petitioner also had been
included, had been questioned, the Division Bench has stated that, the
District Collector is competent to issue a declaration for declaring the
land as a Private Forest land, since the provisions of the Act are
regulatory in nature. The Division Bench has further stated that, no
prohibition to hold the land as a patta land or ryotwari patta
holders/owners as they are entitled to have every right to develop the
property for having any agricultural activities including seasonal
agricultural operations.
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W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
9.Therefore, heavily relied upon the Division Bench Judgement,
the learned Government Advocate would submit that, the issue, since
have been concluded, where the very same notification dated 31.07.1980
has been upheld, the question of revisiting the same does not arise.
Therefore, the prayer primarily made by the petitioner to remove the land
in question from the purview of the notification, dated 31.07.1980, does
not arise, therefore, while considering the application of the petitioner
with the said prayer, atleast the alienation permission has been granted,
which is one of the functions to be undertaken by the fourth respondent
where permission has been granted to the petitioner by way of impugned
order dated 06.06.2020, under which, it is open to the petitioner, if he
wishes to alienate the land, to do it within one year. After lapse of that
one year, he can get a further time by making a fresh application and if
the petitioner does not want to alienate the land, it is open to him to
develop the land for doing any agricultural activities, hence the learned
Government Advocate would submit that the impugned order is fully
sustainable and justifiable, hence, it does not requires any interference.
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10.I have considered the rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
11.Insofar as the validity of the notification dated 31.07.1980 and
also the provisions of the Act are concerned, the issue has been given a
quietus by the said decision of the Division Bench in the Kanyakumari
District Planters Association case cited supra, where exactly, the same
notification was under challenge, which has been negated by the
Division Bench stating that such power is always vested with the District
Collector concerned to issue such a notification, where the Private Forest
Lands can very well be included, in order to preserve the forestry, which
are already available or going on in the said lands, as that kind of
indiscriminate destruction, since have to be protected or prevented, that
was the prime object of the Act, with such an object, since the said Act
has been brought in, the validity of the Act has been declared as intra
vires and a consequential notification issued therein, dated 31.07.1980,
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has also been declared as valid. Therefore, in the teeth of the said
decision of the Division Bench, what is the further persuasive effect
available to the petitioner in having to consider his grievance to remove
the land in question from the purview of the said notification itself is a
question. Be that as it may, now the grievance of the petitioner is that,
the petitioner has not asked for permission for alienating the land in
question, and the application submitted by the petitioner dated
26.10.2017 is for only seeking a prayer for removal of the land from the
purview of the notification dated 31.07.1980, where one of the reasons
cited by the petitioner is that, some adjacent lands at various Survey
numbers, that is, Survey Nos.811, 812, 813 and 825, which are very
adjacent to the petitioner's land, since had not been included under the
notification dated 31.07.1980, why the petitioner's land alone had been
picked up and had been included and in this regard, either it may be
discriminated or there could be no plausible reasons on the part of the
fourth respondent for including the land of the petitioner by issuing the
notification dated 31.07.1980. Therefore, only in that context, such a
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prayer was sought for, however, when such prayer is sought for, the same
ought to have been considered in proper perspective, however, without
having considered the prayer sought for by the petitioner, now different
permission has been granted through the impugned order dated
06.06.2020, as if the petitioner has sought for such a permission to
alienate the land. Therefore, according to the learned counsel for the
petitioner, the impugned order itself showed the non application of mind
on the part of the respondent, and on that ground, the impugned order is
liable to be quashed.
12.The arguments advanced by the learned counsel for the
petitioner on the particular point, may be appealing. However, insofar as
the reason given in the impugned order, for giving only alienation
permission for the petitioner, instead of deciding the plea raised by the
petitioner, has been supported by the reasons stated in the counter
affidavit.
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13.However, on going through the said counter affidavit filed by
the respondents, this Court feel that, if at all, any grievance is available
to the petitioner, that is, against the order passed by the fourth respondent
like the one impugned herein dated 06.06.2020 as against the said order,
appeal would lie before the State Government under Section 4 of the Act,
which reads thus:
“4. 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.”
14.Therefore, it is ultimately, the State Government, to take a
decision or take a call, as to whether the reasons given by the fourth
respondent or its Committee, to include the land in question belongs to
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the petitioner within the purview of the notification, is justifiable or not.
Therefore, at this juncture, this Court, instead of expressing any opinion
about the reasoning given by the respondents in the counter affidavit
filed in support of the impugned order, is of the view that, the petitioner
can be relegated to file an appeal before the State Government, under
Section 4 of the Act, and if any such appeal is filed, the same can be
decided by the State Government on merits and in accordance with law,
ofcourse after providing an opportunity of being heard the petitioner.
15.In that view of the matter, this Court is inclined to dispose of
this writ petition with the following order:
'that the validity of the impugned order, in view of
the petitioner being relegated to prefer an appeal to the
State Government under Section 4 of the Act, need not be
gone into, and therefore, the petitioner is hereby given
liberty to prefer an appeal against the impugned order to
the State Government under Section 4 of the Act, within
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M.Venislas v. The Secretary to the Govt. of Tamilnadu
a period of two weeks from the date of receipt of a copy
of this order, where the specific ground raised by the
petitioner with regard to the alleged discrimination by
including the petitioner's land in the notification dated
31.07.1980, by leaving the adjacent lands in various
survey numbers, as referred to above, from the purview
of the said notification, can also be agitated. If any such
appeal is filed within the time frame as indicated above,
the same shall be considered by the State Government
after affording an opportunity of being heard to the
petitioner, and thereafter decide the same, on merits and
in accordance with law, within a period of three months
from the date of receipt of such appeal from the
petitioner.
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W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
16.With these directions, this writ petition is disposed of.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
18.08.2021
Index : Yes/No
Internet : Yes
PJL
Note:
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
1.The Secretary to the Government of Tamilnadu,
Land Administration,
St.George fort, Secretariat,
Chennai.
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W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
2.The Commissioner of Land Revenue Administration,
St.George fort, Secretariat,
Chennai.
3.The Director of Survey and Land Records,
Ezhilagam, Cheppauk,
Chennai.
4.The District Collector cum The President,
District Forest Organisation,
Kanyakumari District,
Nagercoil.
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W.P.(MD)No.9592 of 2020
M.Venislas v. The Secretary to the Govt. of Tamilnadu
R.SURESH KUMAR, J.
PJL
W.P.(MD)No.9592 of 2020
18.08.2021
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