Madras High Court
Jeya Raj vs The State Of Tamil Nadu on 30 September, 2021
W.P.(MD)No.17810 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.7251 of 2015
1.Jeya Raj
2.Sarala
3.Jayakumar ... Petitioners
Vs.
1.The State of Tamil Nadu,
Rep. by the Commissioner and Secretary to Government,
Department of Forest and Fisheries Department,
Fort St. George,
Chennai – 09.
2.The District Collector,
Kanyakumari District,
Kanyakumari.
3.The District Forest Officer,
Kanyakumari Division,
Nagercoil. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorari, calling for the entire records pertaining to the
Impugned Notification of the 2nd Respondent published in Kanyakumari
District Gazette dated 31.07.1980 declaring the property of the Petitioner
as a Private Forest in Re-Survey No.259/2 of Schurulacode village
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W.P.(MD)No.17810 of 2015
(Formerly 2961 A2 of Ponmanai Village), Kalkulam Taluk,
Kanyakumari District in an extent of 6 hectares and 28 Ares (15 Acers
and 52 cents) land and quash the same as illegal.
For Petitioners : Mr.M.Naraayanaswamy
For Respondents : Mr.R.Sureshkumar,
Government Advocate
ORDER
The petitioner has challenged the notification issued by the second
respondent published in Kanyakumari District Government Gazette dated
31.07.1980, declaring the property of the petitioner as a Private Forest in
Re-Survey No.259/2 of Schurulacode Village (Formerly 2961 A 2 of
Ponmanai Village), Kalkulam Taluk, Kanyakumari District in an extent
of 6 hectares and 28 Ares (15 Acers and 52 cents) land and to quash the
same.
2.When this writ petition was taken up for final hearing,
Mr.R.Suresh Kumar, learned Government Advocate submitted that the
validity of the very same notification along with some other similar
notifications extending the provisions of the Act called “The Tamil Nadu
Preservation of Private Forests Act, 1949” to the Kanyakumari District
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W.P.(MD)No.17810 of 2015
having been considered was upheld by a Division Bench of this Court
and in this context, he has relied upon the judgment of the Division
Bench of this Court in the matter of Kanyakumari District Planters
Association Vs. State of Tamil Nadu by Commissioner & Secretary to
Government, Forest and Fisheries Department and others reported in
(2016) 2 LW 289 (DB) : (2016) 2 Mad LJ 513. In the said judgment, the
following paragraphs have been relied upon by the learned Government
Advocate:
“6.By notification dated 31.07.1980, the District
Collector in exercise of his powers under section 1(2)
(iii) of the Act (extended to Kanyakumari District by Act
28 of 1979) declared the appellants' lands to be private
Forests. Similar notification dated 16.02.1982, was
issued in respect of other lands, declaring them as
'Private Forests'. These notifications were impugned in
the writ petitions.
7. to 21. .....
22.As mentioned above, the provisions of the Act
were extended to Kanyakumari District by Act 28 of
1978 with effect from 15.06.1979 and the first
notification was issued by the District Collector on
14.10.1979. This notification was not subject matter of
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W.P.(MD)No.17810 of 2015
challenge. The second notification was issued on
31.07.1980 and the third on 16.02.1982 and these
notifications were put to challenge. Both the impugned
notifications were issued by the District Collector
declaring certain lands to be Forest under the Private
Forest Act in terms of Section 1(2)(iii) of the Act. The
notification mentions the name of the village, the re-
survey number, extent of the property, classification,
name of the owner and remarks. The lands have been
shown as Private Forest (Rubber Estate). In terms of the
notification, the lands have been classified as patta land
and there is no dispute to the said fact.
23. to 42. ....
43.So far as 1949 Act, is concerned, it is
admittedly, not a prohibitive statute, but a statute
intended to regulate and preserve private Forest. The
proprietary rights of the landowners over the property
has not been divested. For the purposes of carrying out
the provisions of the Act in terms of Section 2A, a
Committee has been constituted at District Level.
Explanation under Section 3(1) would be relevant which
states that nothing in the said sub-section shall be
construed as preventing owner from selling or otherwise
dealing with a right to gather and remove forest
produce other than the tree, timber and reeds in the
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W.P.(MD)No.17810 of 2015
usual customary manner for the period not exceeding
two years. Similarly, sub-section(2), also provides for
permission to be obtained from the committee to carry
out certain activities.
44.Thus, in the absence of any absolute
prohibition and when certain transactions are allowed
to be sanctioned by the committee, restriction can be
viewed as reasonable where the provisions for the grant
of permission is sought to be enforced bearing in mind
the public interest involved i.e., to say preventing the
indiscriminate destruction of private forest.
45. to 50. ....
51.In our view, so far as the extension of the 1949
Act to the Kanyakumari District erstwhile Travancore-
Cochin State. This appears to have resulted in a unique
problem for this area namely, Kanyakumari District and
it is all the more essential that the provisions of the Act
should be strictly enforced in Kanyakumari District to
preserve the environment and maintain the ecological
balance.
52.For all the above reasons, we find no grounds
to interfere with the order passed in the writ petitions
and accordingly, the Writ Appeals fail and they are
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W.P.(MD)No.17810 of 2015
dismissed. Consequently, Writ Petitions are also
dismissed, leaving it open to the parties to work out
their rights under the provisions of the Act. No costs.
Consequently, connected Miscellaneous Petitions are
closed.”
3.On perusal of the said judgment of the Division Bench cited
supra, where since the Court has upheld the notification along with
similar notifications which were under challenge, this Court feels that the
petitioner cannot have any effective challenge against the impugned
notification. Therefore, on that ground, the present writ petition fails.
Hence, it is liable to be dismissed.
4.Accordingly, the Writ Petition stands dismissed. However, there
shall be no order as to costs.
30.09.2021
Index : Yes/No
Internet : Yes/No
btr/MR
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.
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W.P.(MD)No.17810 of 2015
To
1.The Commissioner and Secretary to Government,
The State of Tamil Nadu,
Department of Forest and Fisheries Department,
Fort St. George,
Chennai – 09.
2.The District Collector,
Kanyakumari District,
Kanyakumari.
3.The District Forest Officer,
Kanyakumari Division,
Nagercoil.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17810 of 2015
R.SURESH KUMAR ,J.
btr/MR
Order made in
W.P.(MD)No.7251 of 2015
Dated:
30.09.2021
https://www.mhc.tn.gov.in/judis/
