Madras High Court
S.Ganapathy vs The District Forest Officer on 2 February, 2021
C.M.S.A.No.45 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02-02-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
CMSA No.45 of 2003
And
CMP No.15300 of 2003
1.S.Ganapathy
2.Mrs.K.Vijayalakshmi
3.Sivaswamy
4.V.Balan
5.R.Arumugham
6.Rajarathinam
7.Rasaiah
8.E.M.Varghese
9.A.M.Varkey
10.Nallathambi .. Appellants
vs.
1.The District Forest Officer,
Gudalur,
The Nilgiris District.
2.The Forest Settlement Officer,
Gudalur,
The Nilgiris District.
3.Mr.Kandaswamy
1/10
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C.M.S.A.No.45 of 2003
4.Mrs.Mookkayee
5.Mr.P.V.Chacko
6.Mr.Rajamanickam
7.Mr.P.V.Poulose .. Respondents
PRAYER : Civil Miscellaneous Second Appeal is preferred under Section
10 of the Forest Act read with Section 100 of the Code of Civil Procedure
against the judgment of the District Judge, Nilgiris at Ooty dated
13.03.2003 in CMA No.22 of 1998, reversing the order of the Forest
Settlement Officer, Gudalur in Rc.A.No.53/91 dated 10.05.1998.
For Appellants : Mr.R.Damodaran
For Respondents-1&2 : Mr.S.Prabhu,
Additional Government Pleader
(Forest).
For Respondents-3&5 : Left
For Respondents-4&7 : Given up
For Respondent-6 : No Appearance
JUDGMENT
The present Civil Miscellaneous Second Appeal is preferred
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C.M.S.A.No.45 of 2003
against the judgment of the learned District Judge, Nilgiris at Ooty dated
13.03.2003 in CMA No.22 of 1998, reversing the order of the Forest
Settlement Officer, Gudalur in Rc.A.No.53/91 dated 10.05.1998.
2. The Forest Settlement Officer passed an order on 10.05.1998
under the provisions of the Tamil Nadu Forest Act, 1882, declaring that the
portion of the land claimed by the appellants was excluded from the
proposed forest block. In view of the fact that the order was passed against
the Forest Department, the District Forest Officer, Gudalur Division,
preferred an appeal in CMA No.22 of 1998.
3. The learned District Judge, Nilgiris at Udhagamandalam
elaborately adjudicated the facts and circumstances as well as the grounds
raised. The learned District Judge considered the order passed by the
Madras High Court in WP Nos.13624 to 13628 of 1999 and in the said
order dated 17.08.1999, the High Court held that though the individual has
claimed that he has occupied the lands of the Government and that such
land occupied by encroachment cannot be treated as occupied land. The
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C.M.S.A.No.45 of 2003
payment of penal levy will not regularise their occupation. In respect of the
above decision rendered in the writ petitions, the Division Bench of the
High Court in W.A.No.641 of 1996 passed an order, which reads as under:-
“We are of the view that in the District of Ooty
encroachment of the forest land is increasing day by
day. We cannot appreciate the apathy of the
Government Officers and the Government in taking
action against such encroachers. It is the safety and
security of the forest that ensure the ecological
balance in the District of Ooty. Therefore, we direct
the State Government to take appropriate action in
accordance with law for eviction of encroachers”.
The Division Bench also directed that the
Government should take action in respect of all such
encroachments in accordance with law in the
District of Ooty. Further, the Supreme Court's
decision in Writ Petition (Civil No.202 of 1995 dated
07.05.1999) has passed a general order in
I.A.No.400 etc., that no patta with regard to any
forest land shall be granted nor shall by
encroachment be regularised. In the decision, it is
also further directed that both the Division Bench of
the Hon'ble High Court as well as the Supreme
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C.M.S.A.No.45 of 2003
Court held that the encroachment should not be
regularised and no patta should be granted for the
encroachers, on the contrary that the encroachers
should be evicted. In view of the Apex Court's
direction as well as the Hon'ble High Court's
decision the respondents 2 to 16 are classified only
as encroachers and paying the penal levy and that is
not sufficient for exclusion from the notification. As
there is no merit in the claim and the orders of the
Settlement Officers is against the direction of the
Apex Court, the orders passed by the first respondent
is liable to be set aside and the appeal has to be
allowed.”
4. In view of the judgment of the High Court, both in writ
petitions as well as in the Writ Appeal, the first Appellate Court allowed the
appeal filed by the District Forest Officer and the order dated 10.05.1998
passed by the Forest Settlement Officer was set aside. Challenging the said
first Appellate Court order, the present Civil Miscellaneous Second Appeal
is filed.
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C.M.S.A.No.45 of 2003
5. Perusal of the grounds for appeal would reveal that no
substantial question of law is raised for preferring the present Civil
Miscellaneous Second Appeal.
6. Learned counsel appearing on behalf of the appellants also
contending the grounds with reference to the facts and those facts already
adjudicated before the Trial Court as well as before the first Appellate
Court, cannot be adjudicated in the present Civil Miscellaneous Second
Appeal.
7. It is needless to state that Section 100 of the Code of Civil
Procedure, contemplates that substantial question of law is mandatory. In
the absence of any substantial question of law, the appeal cannot be
entertained by the High Court for the purpose of re-adjudicating or re-
appreciating the facts already considered by the Trial Court as well as by the
first Appellate Court.
8. In the present case, the grounds raised are relatable to the
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C.M.S.A.No.45 of 2003
factual matrix of the case, which were already adjudicated and there is no
substantial question of law raised.
9. This apart, the learned Additional Government Pleader
appearing on behalf of the respondent-Forest Department also made a
submission that the land was already declared as Reserve Forest under
Section 4 of the Tamil Nadu Forest Act and now it is under the control of
the Forest Department.
10. In view of the fact that the lands in dispute were already
declared as Reserve Forest under the provisions of the Forest Act and there
is no reason whatsoever now to interfere with the findings of the first
Appellate Court.
11. In this view of the matter, the appellants have not able to put
forth any acceptable substantial question of law for the purpose of further
adjudication and accordingly, the judgment and decree dated 13.03.2003
passed in CMA No.22 of 1998 by the learned District Judge, Nilgiris at
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C.M.S.A.No.45 of 2003
Udhagamandalam stands confirmed and consequently, CMSA No.45 of
2003 is dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is also dismissed.
02-02-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
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C.M.S.A.No.45 of 2003
To
1.The District Judge,
District Court,
Nilgiris at Udhagamandalam.
2.The District Forest Officer,
Gudalur,
The Nilgiris District.
3.The Forest Settlement Officer,
Gudalur,
The Nilgiris District.
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C.M.S.A.No.45 of 2003
S.M.SUBRAMANIAM, J.
Svn
C.M.S.A.No.45 of 2003
02-02-2021
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