Madras High Court
Thangavelu vs The Additional Chief Secretary ... on 20 July, 2021
W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
27.07.2021 09.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.P.(MD) Nos.13017, 13018, 13019, 13020, 13021, 13022, 13023,
13024, 13025, 13026, 13027, 13028, 13029, 13030 & 13031 of 2021
and
W.M.P.(MD) No.10085, 10086, 10087, 10088, 10089, 10090, 10091,
10092, 10093, 10094, 10095, 10096, 10097, 10098 & 10099 of 2021
W.P.(MD) No.13017 of 2021:
Thangavelu ... Petitioner
-vs-
1.The Additional Chief Secretary cum
Land Survey & Land Administration Director
Land Survey & Land Administration Directorate
Chennai-5
2.The Secretary to the Government
Revenue Department
Fort St.George, Secretariat
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Page 1 of 16
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
Chennai-9
3.The District Collector
Ramanathapuram District
Ramanathapuram
4.The Forest Ranger
Ramanathapuram Forest
Ranger Office at
Thangimadam
Ramanathapuram District
5.Gnanapalam
Ramanathapuram Forest Ranger Officer
Ramanathapuram Forest Ranger Office at
Thangachimadam
Ramanathapuram District ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of certiorarified mandamus to call for the record of the impugned
proceeding of the fourth respondent in br.K.M.vz;.141/2021-21, dated
20.07.2021 and quash the same and consequently forbearing the fourth
respondent from interfering petitioner's possession and occupation of the land.
For Petitioner : Mr.K.K.Ramakrishnan
For Respondents : Mr.Veera Kathiravan
Senior Counsel for State Government
Mr.A.K.Manickam, Government Counsel for R1 to R4
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Page 2 of 16
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
COMMON ORDER
T.S.SIVAGNANAM, J.
The prayer sought for in all these Writ Petitions being identical, they
have been heard together and are disposed of by this common order.
2.With the consent of the learned counsel on either side W.P.(MD) No.
13017 of 2021 has been taken as the lead case and it would suffice to note the
facts therein.
3.The petitioner one Thangavelu S/o. Neelamegam claims to be in
occupation to an extent of 25 cents of dry land in S.No.1026/5A of
Rameswaram and has been paying 2C charges from 1970 to 2015. The
petitioner claims to have developed the dry lands into a coconut grove and
also erected a borewell and in the centre of the land, the petitioner
constructed a house and has been residing there and also obtained electricity
service connection for the said house. The petitioner would state that there are
several persons, similarly placed like him, who have developed the vast extent
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
of unutilized and unused land by planting coconut trees, which would protect
the area from land sliding. The petitioner and other farmers are stated to have
formed an association in the name of Rameshwaram Island Coconut Farmer's
Development Association of Ramanad District and submitted a representation
to the District Collector for grant of patta. The said request was rejected and
the petitioner and others challenged the same by filing W.P.No.2380 of 1989,
which was allowed and the matter was remanded to the authorities for fresh
consideration. Thereafter, the Revenue Divisional Officer, Rameshwaram by
communication dated 20.05.1999, informed that there is a ban for issuance of
patta till the Sethu Channel Project is implemended. Thereafter, another Writ
Petition was filed in W.P.No.20391 of 2002, in which, a direction is said to
have been issued to the Government. The second respondent directed the
President of the Association to appear in person and during the said personal
hearing, the President of the association submitted records and requested for
grant of patta. It is further submitted that the Forest Settlement Officer,
Sivagangai in an application filed under Section 10 of the Tamil Nadu Forest
Act, claiming right of occupancy and ownership, passed order dated
10.06.2003 excluding Survey Nos.1206/1, 1026/10, 1026/5, 1026/21 from
the limits of the forest area and the said order has attained finality and the
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
forest boundary was fixed excluding the said lands. The petitioner claims that
the land, which is in his occupation and enjoyment measuring an extent of 25
cents is situated beyond the survey stones, which demarcate the forest land
and at no point of time the forest department claimed any right over the
occupation of the petitioner. Whileso, a notice dated 25.06.2021, was issued
under Section 68(A) of the Tamil Nadu Forest Act, calling the petitioner to
show cause as to why he should not be evicted for being in occupation of
forest land. The petitioner submitted his reply on 07.07.2021, wherein he
stated about his continuous possession and enjoyment of the land and the
Forest Settlement Officer had passed an order dated 10.06.2003, excluding
the lands mentioned in the four survey numbers and the land in occupation of
the petitioner is beyond the forest boundary and therefore, the proposal to
evict the petitioner by invoking the provisions of the Tamil Nadur Forest Act is
without jurisdiction. It is thereafter, order dated 20.07.2021, was passed
holding that the petitioner is in occupation of forest land and he is liable to
evicted within five days. Aggrieved by the same, the petitioner has filed W.P.
(MD) No.13017 of 2021.
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
4.Mr.K.K.Ramakrishnan, learned counsel appearing for the petitioners
submitted that the Forest Department had no jurisdiction to issue show cause
notice under Section 68(A) of the Tamil Nadu Forest Act, 1882 as the lands in
question are Government dry lands and not forest lands. Further, it is
submitted that Forest Settlement Officer, Sivagangai has specifically excluded
larger extent of lands, which would include the lands in occupation of the
petitioners and the said order dated 10.06.2003, having become final, the
impugned order is liable to be set aside. Further, it is submitted that the
Forest Range Officer, who has been impleaded in his personal capacity is
acting in malafide manner and has passed eviction orders only against certain
persons and one Pancharam and others, who are in occupation of the lands in
S.Nos.1026/1, 5, 5A have not been issued any notice and no steps have been
taken to evict them and therefore, the impugned order is unreasonable and
violative of Article 14 of the Constitution of India. Further, notices were issued
to one Chithiraivelu, Sugubar Aisha, Saravanan, Balamurugan,
Muthuramalingam and Velayutham and they placed reliance on the order
passed by the Forest Settlement Officer and thereafter, the fourth respondent
has not passed any orders of eviction against them. Further, the petitioners,
who have developed the property by attributing their physical labour and their
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
resources have not been dealt with in an orderly manner by the forest
department. Further, it is submitted that the request made by the petitioners
for grant of patta by representations dated 23.07.2021 is also pending with
the revenue officials and in the meantime, the impugned orders have been
passed. Therefore, it is submitted that the impugned orders are liable to be set
aside and the fourth respondent should be refrained from interfering with the
petitioners' possession and occupation of the said lands.
5.Mr.Veera Kathiravan, learned Senior Counsel for the State
Government submitted that the petitioners are encroachers in the forest lands
and only after affording adequate opportunity and considering their
submissions, the impugned orders have been passed and the orders do not
suffer from any error and it is well within the jurisdiction of the fourth
respondent to pass the impugned order. Further, it is submitted that a
similarly placed person as that of the petitioners filed W.P.(MD) No.5556 of
2021 for issuance of Writ Mandamus, forbearing the respondents therein from
evicting the petitioner from peaceful possession and enjoyment in S.F.No.
1026/5A, measuring an extent of 3 acres, situated at Natarajapuram Village,
Puthu Road, Rameshwaram Taluk and the Writ Petition was filed on the
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
strength of B memo issued by the Government officials. The Hon'ble Division
Bench of this Court found that the said B memo was cancelled by the
proceedings of the Tahsildar dated 21.03.2015, and also noted the statements
made in the counter affidavit filed by the forest department and that the suit,
which was filed by one Saravanakumar in O.S.No.14 of 2015, on the file of the
Principal District Judge, Ramanathapuram was dismissed and taking note of
the facts, the Writ Petition was dismissed on 19.03.2021 holding that land in
question was forest land and deliberately suppressing the filing and dismissal
of the suit, the Writ Petition was filed and there is no merit in that Writ
Petition.
6.We have elaborately heard the learned counsel for the parties and
carefully perused the materials placed on record.
7.The petitioners claimed to be in possession of the lands in Survey Nos.
1206/1, 1026/10, 1026/5, 1026/21 and claim that the lands are classified as
dry lands and not forest lands and there is no jurisdiction for the fourth
respondent to initiate eviction proceedings. The second ground raised by the
petitioners is that forest settlement officer has passed an order excluding the
above lands from the purview of the rigor of the Tamil Nadu Forest Act, 1882
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
and the survey numbers situate outside the boundary of the forest lands and
therefore, the impugned orders are without jurisdiction. The third ground is
that the petitioners alone have been targeted and there is discrimination and
others, who were also similarly placed that of the petitioners, have not been
proceeded against and no order of eviction has been passed. Lastly, the
petitioners would state that no enquiry was conducted and adequate
opportunity was not provided to the petitioners and therefore, the impugned
orders of eviction are not tenable.
8.As noticed above, W.P.(MD) No.5556 of 2021 was filed by one
R.B.Kannan, who is similarly placed as that of the petitioners herein. He
claimed that he was in possession of the land in S.No.1025/5, which is the
same land, where the petitioners before us claimed to be in possession and
enjoyment. As mentioned above, the said Writ Petition was dismissed by order
dated 19.03.2021. In the said order, the Hon'ble Division Bench took note of
the submissions made by the forest department. It is seen that the land
available in S.No.1026/5 was notified under Section 26 of the Tamil Nadu
Forest Act, 1882 and published in Ramanathapuram District Gazette No.2,
dated 14.02.1988 and on and after such notification, provisions of the Forest
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
Conservation Act, 1980 would stand attracted as the lands were declared as
reserved forest. Further, as per Section 2 of the Forest Conservation Act, 1980
no land can be diverted for non forestry purpose without the prior approval of
the Government of India and the land is belonging to Forest Department and
the above said land is recorded as belonging to forest department in the 'A'
Register and “Adangal”. The said Writ Petitioner Mr.R.B.Kannan claimed that
he has been issued with B Memo by the Village Administrative Officer of
Rameshwaram Village. It was pointed out that action of the Village
Administrative Officer in issuing B Memo in respect of Reserved Forest land is
wrongful act and it was brought to the notice of the District Collector,
Ramanathapuram by the District Forest Officer, Ramanathapuram vide letter
No.2945 of 2012 dated 25.12.2014. This was taken note of by the Tahsildar,
Rameshwaram vide proceedings K.Dis.No.m1/66/15 dated 21.03.2015 and
cancelled the B memo issued to 46 persons in various survey numbers.
Further, in the said proceedings, while cancelling the B memos, illegally
issued by the Village Administrative Officer, it has been specifically mentioned
that the lands have been transferred to the Forest Department. Further, it was
pointed out that similarly placed person filed O.S.No.14 of 2015 before the
learned Principal District Judge, Ramanathapuram, claiming ownership of the
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
lands comprised in S.Nos.1017/2, 1026 and 1026/5A and the said suit was
dismissed by judgment dated 28.07.2017. Taking note of these facts, the Writ
Petition has been dismissed. The said decision of the Hon'ble Division Bench
dated 19.03.2021, would apply with full force to the case of the petitioners as
well.
9.A person, who raised a contention that the impugned order is without
jurisdiction and principles of natural justice had been violated and there has
been discrimination has to establish how he lawfully continues to remain in
possession of the land in question. Though the petitioners would state that 2C
charges have been collected from them, no such document has been produced
to establish the said claim. Though in paragraph 2 of the affidavit filed in
support of the Writ Petitions, the petitioners would say they have been paying
the 2C charges and in the representation given by some of the petitioners and
one R.Natarajan, it has been stated that for every year, they have been paying
the 2C charges to the Village Administrative Officer, who has issued B Memos,
have failed to produce the same. These B memos, which were issued by the
Village Administrative Officer were found to be illegal and without jurisdiction
and those have been cancelled by the Tahsildar by proceeding dated
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
21.03.2015, which proceedings have attained finality. Assuming that some
petitioners are still holding B memo receipts, those receipts in no manner can
advance the case of the petitioners to establish their stand that they are in
lawful occupation of the property in question. So far as the allegation that
there has been violation of principles of natural justice, we find that show
cause notices were issued on 25.06.2021 to all the Writ Petitioners and they
have submitted replies dated 05.07.2021 and after considering the replies, the
impugned orders dated 27.07.2021, have been passed. Thus, it is seen that
the petitioners had reasonable opportunity of being heard. It is settled legal
proposition that opportunity of hearing does not necessarily mean opportunity
of personal hearing. In the instant case, show cause notice is an opportunity
granted to the petitioners to explain as to why they should not be evicted. In
fact, the replies of the petitioners have placed reliance on B Memo receipts
issued by the Village Administrative Officer to show that they are occupation
of the lands close to half a century and the lands are not belonging to forest
department. This objection was considered by the forest department and
speaking and reasoned orders have been passed, which are impugned in these
Writ Petitions.
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https://www.mhc.tn.gov.in/judis/
W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
10.It is clearly brought out that the petitioners are encroachers of
reserved forest lands, which have been notified in G.O.Ms.No.419,
Environment and Forest (Forest III) Department, dated 13.12.1993, and
published in the Ramanathapuram District Gazette No.1 dated 24.01.1994
and that the petitioners are encroachers of such forest lands and therefore,
notice under Section 68-A was issued. After noting the contention raised by
the petitioner, the fourth respondent has held that the lands have already
been notified as reserved forest as early as in 1993 and the notification has
been duly published in the District Gazette. In such circumstances, the plea
raised by the petitioners are wholly untenable.
11.The allegations that the Forest Settlement Officer has excluded
certain lands from the purview of the forest land is a plea which has to be
rejected because the petitioners' case is based upon B Memos issued by the
Village Administrative Officer. This fact though has not been specifically stated
in the affidavit filed in support of the Writ Petition, it has been so admitted in
the replies to the show cause notices dated 25.06.2021. As long as the lands
stand declared as reserved forest, the plea raised by the petitioners cannot be
entertained and they have to be necessarily treated as encroachers of forest
lands. Therefore, we find that there is no error in the decision taken by the
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W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
fourth respondent, directing the petitioners to remove the encroachments. In
our considered view, there is no error in the decision making process and the
petitioners were afforded reasonable opportunity to submit their replies to the
show cause notices. Further more, the plea of discrimination remains
unsubstantiated and even if it is admitted, it goes without saying that all
encroachments of forest lands have to be necessarily removed by the
concerned officials even without the orders of the Court. As long as the lands
continue to remain notified as forest lands, the plea raised by the petitioners
have to be necessarily rejected as devoid of any substance.
12.In the result, these Writ Petitions are dismissed. The petitioners are
directed to remove the encroachments within 15 days from the date of receipt
of a copy of this order, failing which, forest department shall evict the
petitioners and recover the cost of such eviction proceedings from them.
Consequently, connected Miscellaneous Petition are also dismissed. No costs.
[T.S.S., J.] [S.A.I., J.]
09.08.2021
Index : Yes / No
Internet : Yes / No
sj
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https://www.mhc.tn.gov.in/judis/
W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
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 Additional Chief Secretary-cum-
Land Survey & Land Administration Director,
Land Survey & Land Administration Directorate,
Chennai-5.
2.The Secretary to the Government,
Revenue Department,
Fort St.George, Secretariat,
Chennai-9.
3.The District Collector,
Ramanathapuram District,
Ramanathapuram.
4.The Forest Ranger,
Ramanathapuram Forest,
Ranger Office at
Thangachimadam,
Ramanathapuram District.
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https://www.mhc.tn.gov.in/judis/
W.P.(MD) Nos.13017, 13018, 13019, 13020,
13021, 13022, 13023, 13024, 13025,
13026, 13027, 13028, 13029, 13030 &
13031 of 2021
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
sj
COMMON ORDER
IN
W.P.(MD) Nos.13017, 13018, 13019,
13020, 13021, 13022, 13023, 13024,
13025, 13026, 13027, 13028, 13029,
13030 & 13031 of 2021
09.08.2021
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https://www.mhc.tn.gov.in/judis/
