Madras High Court
P.Thangarasu vs The State Of Tamilnadu on 1 March, 2022
WP NO.32704 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2022
CORAM
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
W.P.NO.32704 OF 2014
P.Thangarasu ... Petitioner
Vs.
1.The State of Tamilnadu
Rep. by the Secretary to the Government
Revenue Department
Fort. St. George,
Chennai – 600 009.
2.The State of Tamil Nadu
Rep. by the Secretary to Government
Environment and Forest Department
Fort.St. George,
Chennai – 600 009.
3.The District Collector
Namakkal,
Namakkal District.
4.The Tahsildar
Rasipuram Taluk
Namakkal District.
5.The District Forest Officer
Namakkal,
Namakkal District. ... Respondents
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WP NO.32704 OF 2014
PRAYER: Writ petition filed under Article 226 of Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
of the impugned order passed by the third respondent in
Na.Ka.No.8916/2014/L-1(V-39) dated 30.07.2014 and quash the same
and thereby direct the respondents to reconsider the case of the petitioner
in terms of the provisions of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006, read with the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Rules, 2007, for issuance of patta to the petitioner.
For Petitioner : Mr.Muthukumaran
for Mr.V.Thirupathi
For R1 to R4 : Mr.M.Rajendiran,
Additional Government Pleader
For R5 : Mr.T.Arun Kumar,
Additional Government Pleader (Forest)
ORDER
Challenging the order dated 30.07.2014 passed by the third
respondent / District Collector, rejecting the claim for issuance of patta,
the petitioner has preferred the present writ petition.
2.According to the petitioner, he was in absolute and
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WP NO.32704 OF 2014
continuous possession and enjoyment of the lands comprised in unsurvey
Block No.2, Naraikinar, Rasipuram Taluk, Namakkal District. In
Revenue Records, his lands and the lands adjacent to his lands were
shown as Hill poramboke. The properties situated in Naraikinar were
irregular in shape, barren and uncultivable and abutting the small hills.
He has converted the barren and uncultivable lands into cultivatable
lands and is doing agriculture. In the year 1950, a Notification under
Section 4 of the Madras Forest Act, 1882 was issued by the Government
to declare the above lands in unsurvey block No.2 to a total extent of
3583.62 Hectares (8855 acres) as "Reserve forest". Thereafter, it was not
pursued. Again in the year 1990, it was identified that out of the total
extent of 3583.62 Hectares (8855 acres) as per the theodolite survey,
about 2253.85.0 Hectares (5578.20 acres) were encroached and for the
remaining 899 Hectares (2222.49 acres) there was no encroachment. As
per the said measurement, the Forest Settlement Officer was directed to
send a report under Section 10 of the Madras Forest Act. Accordingly,
the fifth respondent has conducted an enquiry under Section 8 of the
Madras Forest Act and sent a report stating that the said extent of lands
were exempted from reserve forest and also confirmed the petitioner's
long and continuous possession as early as in the year 2002. Thereafter,
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WP NO.32704 OF 2014
the petitioner made a representation to the authorities concerned for
issuance of patta for the above lands. In the year 2006, the Central
Government has made an enactment viz., The Scheduled Caste and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, in
and by which, the rights of the petitioner as well as similarly placed
traditional dwellers were protected. In the meantime, the fifth respondent
informed that the question of issuing patta will be decided by the
Revenue Department after getting appropriate orders from the
Government.
3.In the meanwhile, similarly situated persons belonging to the
Salem Mavatta Ezhpulli Malaivaizh Makkal Nala Sangam, Puzuthikuttai,
Salem District, filed a writ petition in W.P.No.10954 of 2005 seeking to
forbear the respondents from issuing declaration under Section 16 of the
Tamilnadu Forest Act and to grant patta to the members of the Sangam
and the same was by this Court dismissed on 01.04.2005. Against which,
Writ Appeal in W.A.No.376 of 2008 was preferred. A Division Bench of
this Court, by an order dated 20.10.2009 has directed the respondents
therein to consider the case of the Members of the appellant - Sangam as
per the provisions of the Scheduled Caste and Other Traditional Forest
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WP NO.32704 OF 2014
Dwellers (Recognition of Forest Rights) Act, 2006 and to pass
appropriate orders. Even thereafter, the respondents did not pass any
order. Finally, on 20.12.2012, the petitioner has made a representation to
the respondents for issuance of patta to an extent of two acres, but, it was
rejected on 30.07.2014, which is contrary to the judgment of this Court in
W.A.No.376 of 2008, dated 20.10.2009. The respondents have failed to
consider the rights of the forest dwellers under Section 2 of the Act 2007.
The petitioner is entitled to Patta to his lands, which is in his long and
continuous possession as per the Section 2 of the Act 2007 and the Rules
framed therein.
4.Heard the submissions made on either side.
5.Upon the perusal of the impugned order dated 30.07.2014,
it is noted that on 12.05.1954 itself, the lands were notified as "Reserve
forest" under Section 4 of the Tamil Nadu Forest Act, 1882 and the same
was published in the Government Gazette vide No.40669/C-IV/54-2
dated 12.05.1954. Thereafter, on 19.05.1955, a declaration was issued
under Section 6 of the Tamil Nadu Forest Act, 1882, in the Government
Gazette, Salem District, by giving three months time for consideration of
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WP NO.32704 OF 2014
claims, if any, till 18.08.1955. However, no claims were made.
Thereafter, the lands were declared as "Reserve forest". Further, as per
the orders of the Hon'ble Supreme Court in W.P.No.202 of 1995 dated
07.05.1999, no patta with regard to any forest land shall be granted nor
shall any encroachment be regularized.
6.The fact remains that the petitioner has clearly averred in
his affidavit filed in support of the writ petition that he encroached upon
the property situated in unsurvey block – 2, Naraikinar, Rasipuram
Taluk, Namakkal District, which were irregular in shape, barren and
uncultivable and abutting the small hills and that he had spent huge
amount for reclamation of the above mentioned property and he modified
the nature of the lands into agriculture lands and he has been paying
charges to the Government regularly.
7.It is well settled that the forest dwellers totally depend
upon the forest produces for their livelihood. As stated by the petitioner,
he cannot be said to be a forest dweller for the reason that he encroached
the lands and converted them into cultivable one and was also paying
charges to the Government. As per Section 2(c) of Scheduled Tribes and
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Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006, “forest dwelling Scheduled Tribe” means the members or
community of the Scheduled Tribes who primarily reside in and who
depend on the forest or forest lands for bona fide livelihood needs and
includes the Schedule Tribes pastoralist communities. Section 2(o) of
the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006 defines “other traditional forest dweller” that
any member or community who has for at least three generations prior to
13.12.2005 primarily resided in and who depend on the forest or forest
land for bonafide livelihood needs”. The generation is explained as a
period comprising of 25 years.
8.As per above definitions, either the person should be a
permanent resident of the forest bonafidely depending on the forest
produce for his livelihood or a traditional forest dweller, who lives for
more than 75 years inside the forest. The petitioner does not satisfy the
requirements either under Section 2(c) or 2(o) of Act, 2006 and he was
not dependent on the forest produce and on the other hand, he converted
the uncultivable lands into agricultural lands and he eke out his
livelihood from the cultivation of agricultural lands.
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WP NO.32704 OF 2014
9.From the above, it can be safely inferred that the petitioner
is not dependent upon the forest produce to eke out his livelihood. He
claims to be in possession from the year 1990. In that event, he will not
satisfy the requirements of dwelling inside the forest for the three
generations, which means for 75 years. Therefore, a person, who is not
depending on the forest produce for his bonafide livelihood or not
residing inside the forest for 75 years, cannot claim himself as a forest
dweller and claim rights, which is available under the Act especially
made for the Schedule Tribes living inside the forest.
10.Furthermore, as declared in Government Memo
No.40669/C-IV/54-2, dated 12.05.1954 under Section 4 of the Tamil
Nadu Forest Act, 1882 and the publication made on 19.05.1955 under
Section 6 of the Tamil Nadu Forest Act, 1882, the lands of the petitioner
falls under the purview of "reserve forest". The petitioner had an
opportunity to make his representation to get exemption upto three
months i.e., from the date of declaration viz., 19.05.1955 to 18.08.1955.
There is no averment made in the affidavit filed in support of the writ
petition that he came into possession and dwelling inside the forest from
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the ancestral period nor given any date from which he converted the
uncultivable land into cultivable agricultural land. Without specifying the
period of his possession and enjoyment of the property, he cannot claim
any right over the forest land, much less under Section 2(c) and 2(o) of
the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006. I do not find any discrepancy in the order
passed by the third respondent rejecting the petitioner's claim for
issuance of patta.
11.Accordingly, the impugned order passed in
Na.Ka.No.8916/2014/L-1 (V-39), dated 30.07.2014, by the third
respondent / District Collector is hereby confirmed. It is open to the
respondents to take further action in accordance with law.
12.In fine, this writ petition stands dismissed. No costs.
01.03.2022
Index :Yes/No
Internet :Yes/No
Dua/tk
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WP NO.32704 OF 2014
To
1.The Secretary to the Government
State of Tamilnadu
Revenue Department
Fort. St.George,
Chennai – 600 009.
2.The Secretary to Government
State of Tamil Nadu
Environment and Forest Department
Fort. St.George,
Chennai – 600 009.
3.The District Collector
Namakkal,
Namakkal District.
4.The Tahsildar
Rasipuram Taluk
Namakkal District.
5.The District Forest Officer
Namakkal,
Namakkal District.
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WP NO.32704 OF 2014
M. GOVINDARAJ, J.
Dua/tk
W.P.NO.32704 OF 2014
01.03.2022
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