Prayer in C.R.P. (MD) No. 2745 of 2015: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair order and decreetal order dated 01.09.2015 made in CMA (Forest Appeal) No. 4/10 on the file of the I Additional District Court of Tirunelveli, confirming the order dated 06.01.2010, made in R.O.C. No. 5368 of 2008, on the file of the Forest Settlement Officer at Ambasamudram.
Prayer in W.P. (MD) No. 41358 of 2005: Writ Petition filed under Article 226 of the Constitution, praying to issue a Writ of Certiorari, calling for the records connected with the impugned order Ref. No. C. No. D/3228/2002 dated 13.10.2005 on the file of the 2 respondent, the Deputy Director, Project Tiger, Ambasamudram and to quash the same.
Prayer in W.P. (MD) No. 41359 of 2005: Writ Petition filed under Article 226 of the Constitution, praying to issue a Writ of Certiorari, calling for the records of the respondent herein, Commissioner of Land Administration, Ezhilagam, Chepauk, Chennai, connected with and culminating in the impugned order Ref. No. K1/186/2003 dated 03.12.2005 and quash the same.
Prayer in W.P. (MD) No. 41360 of 2005: Writ Petition filed under Article 226 of the Constitution, praying to issue a Writ of Mandamus, directing the respondent herein, the State of Tamil Nadu represented by the Chief Secretary, Fort St. George, Chennai, to forthwith issue ryotwari patta to the petitioner for the lands comprised in S. No. 251 in Singampatti Village, Ambasamudram Taluk, Nellai Kattabohman District, as provided under Section 11 of the Tamil Nadu Estates (Abolition and Conversation into Ryotwari) Act (XXVI of 1948) and take necessary follow up action under Sections 21 and 22 of the said Act.
COMMON ORDER
M.M. Sundresh, J.:— Nature is the life line of the Mother Universe. Forests and Rivers, inseparable twins complimenting each other, an integral part of nature. They are the heart and soul of the universe. One of the determinative factor to assess the wealth of a country is its natural resource.
2. Man is the most destructive specie of the earth. Through his constant flirtation, he ends up destroying the nature. Ironically it gives the opposite and contrary result though may not be intended. Continued destruction of forests and rivers would bring the doom day nearer, a mockery and folly.
Importance:
3. Kalakad Mundanthurai Tiger Reserve (KMTR) is a global hotspot of Biodiversity, declared as Tiger Reserve during 1988. Mundanthurai Tiger Sanctuary was declared in 1962, as against Kalakad Wildlife Sanctuary in 1976. It was a huge forest cover with a perennial river to the knowledge of the man kind and continues to be so after a steady supply of battering at its hands.
4. Biosphere Reserve (BR) is a representative part of natural and cultural landscapes extending over large area of terrestrial or coastal/marine ecosystem or a combination thereof. Kalakad Mundanthurai Tiger Reserve forms the core zone of Agasthiyarmalai Biosphere Reserve. In the 4 World Congress of Biosphere Reserves, Agasthyamala Biosphere Reserve has been declared as World Biosphere Reserve taking note of its cultural and ecological diversity. Agasthyamala Biosphere Reserve is included in the World Network of Biosphere Reserve under the Man and Biosphere (MAB) Program of UNESCO in the 28 Session of International Coordinating Council held in Lima, Peru from 18 to 19 March, 2016.
5. Agasthyamala Biosphere Reserve houses 14 rivers, which ultimately converse into river Tamirabarani and thus catering to the needs of 4 Districts of Tamil Nadu both for drinking and irrigation purposes. This water resource contains rich fish assemblage inclusive of endemic and other species.
6. Steven Green came here with his research assistant Karen Minkowski to study the behaviour of the endangered lion-tailed macaque. His noted observation is as follows:
“Bang in the heart of what is now a Tiger reserve is an important, even indelible part of this landscape - the estate of the Bombay Burmah Trading Corporation (BBTC), a smaller mosaic of tea, coffee and cardamom plantations, human settlements, and natural forests.”
7. Based upon his report and study, Kalakad Wild Life Sanctuary was sanctioned.
8. It is declared as a Critical Tiger Habitat under Section 38(V) of the Wildlife Protection Act, 1972 through Government Order in G.O.Ms. No. 145 dated 28.12.2007. Tiger is otherwise called “umbrella of species”. Tiger protection would mean protection of Forest along with flora and fauna and the rivers flowing through it.
9. Being a Biodiversity Hotspot, Kalakad Mundanthurai Tiger Reserve harbours around 448 endemic flora apart from mega fauna like Gaur, elephant, tiger, leopard, sambar deer, which do not know the artificial barriers created between forest and estate and thus paving the way for man-animal conflicts.
10. Taking note of the utmost importance to protect the aforesaid area, way back in the year 1857, an English gentle man by name Puckle expressed his anxiety and concern. The following paragraphs would be apposite:
“The prosperity of the river-irrigated section of Tirunelveli extending through five taluks, form the Western Ghats to the sea, is dependent on a continuous flow of water in the rivers that rise on the Western Ghats. Now this continuous flow has notably decreased of late years, and the decrease commenced with the destruction of much of the forest that formerly clothed the ghats and protected the heads of the streams; the rich shola land in the ravines down which the streams descend, attracted coffee planters, who destroyed the magnificent timber and thus let in the wind, which has extended the mischief done by the axe. Thousands of trees, lie prostrate, and the coffee gardens, as might be expected, are mostly wind-blown and useless. Where the ground was once moist continuously, it is now parched and dry, and the courses of the numerous little rivulets that once fed the larger streams are now rocky nullahs without a drop of water in them.
The mischief, however, is done so far and cannot now be repaired, but what we can do is, to conserve the remaining forest most carefully, and see if we cannot increase the volume of water in the streams. Almost all the streams descend the ghats in the Tenkasi and Ambasamudram taluks between Kuttalam and Kallidaikurichi. The area to conserve is thus very limited, and in the Tenkasi taluk I have visited every village and have made most careful arrangements. The people themselves are unanimous in their wish for conservancy, as even at the foot of the hills they now begin to suffer, and lower down the streams there is always an outcry for water.”
“The Problem of the so-called private forests still remained unsolved. The claims most prejudicial to the new policy of Government were those of the Singampatti and Chokkampatti Zamindars. The Singampatti forests commanded the upper waters of the Tambraparni and the sources of a number of affluents of that important river. In the ayakat accounts, on which at first he had relied, the zamindar was allowed 59 square miles of jungle; his claims, when tested by “occupation” and “possession”, extended to four times that area. There were several alternatives: to take the forests on lease; to resort to the civil courts; to acquire the property under the Act; or to override the zamindar's very doubtful claim and to assume the property. Unfortunately, the zamindar was at the time a minor under the Court of Wards, and the position of Government was an embarrassing one. After much correspondence it was decided that, during the ward's minority, the forest should be worked according to the conservancy rules, its ultimate treatment being left for future decision. In I879 the zamindar's claim came up for decision under the Survey and Boundaries Act, the zamindar, who was then a minor, being represented by the Collector as the agent of the Court of Wards. A great part of the forest claimed was decreed to the zamindar. In I88I he attained his majority and, dissatisfied with this partial success, appealed against the decision to the District Court. By that court the appellant was declared to have no right of ownership over any part of the forest which he had originally claimed; some exclusive rights of easement in regard to pasture, the collection of produce and the felling of timber were admitted not only over the tract which the survey officer had allowed the zamindar but also over a tract which that officer had refused him. On a further appeal in I885 to the High Court, the zamindar was entirely successful in establishing all the claims he had originally set up, a decision which was ultimately confirmed, on appeal, by the Privy Council.”
“Separated from this block by the forests of the Singampatti zamindari is the great mass of hills which overlooks the Ambasamudram and Tenkasi taluks. For many miles of its course the Tambraparani marks the boundary between the Government and the zamindari forests; and it is in the great square southern block of the Ambasamudram ghats that this river and all its upper affluents take their rise (see page 8). This is the most extensive forest tract of the district, the watershed lying at a distance of some I2 miles behind the base of the hills. Behind the steep rocky faces of the lower hills extend the undulating plateaus in which are comprised most of the workable areas of the forests; above them, less sharply than elsewhere, towers the great irregular range whose summit marks the boundary of Travancore. The chief peaks of this fine mass have been referred to in Chapter I. Unlike most of the other ghat forests of the district, the higher slopes of this range enjoy the full force of the south-west monsoon, frequent showers during January and February, and occasional bursts of rain during April and May. Consequently they are exceedingly damp during the greater part of the year and seldom dry at any season. Northwards from Sivasailam within the Ambasamudram taluk and extending on past Kuttalam, the forests decrease in width, dwindling ultimately to little more than the side of a hill, which thrusts a narrow wedge down to the plains just near Shencotta. These hills contains the sources of the Jambunadhi, the Gatananadhi, the Ramanadhi and the Chittar, all of which join the Tambraparni in the level country. Here, as elsewhere, their inaccessibility has largely saved the evergreen forests from destruction, and the protection which these afford to the head-waters of innumerable streams constitutes their chief value. The best growth of the range is to be found in the hills above Kuttalam which are visited by heavy storms of rain during the south west monsoon.”
11. This was noted in the Madras District Gazetteers, Tinnevelly dated 12.03.1916. Suffice it to state that the anguish of Mr. Puckle would show the importance of the place, the need to protect and the ground reality. His apprehension has become true since river Tamirabarani has suffered a lot with all her artilleries under blockage, cutting the supply of oxygen to her life.
12. A huge extent of land came into the hands of Singampattai Zamin. All these extent of 8373 acres 57 cents was leased out in favour of the petitioner by Ex. Zamindhar of Singampatti, to cultivate tea, coffee, cardamom etc. Thereafter, a notification was issued under Section 26 r/w 32 of the Tamil Nadu Forest Act, 1882. This was done on behalf of the owner of the land to protect it by treating it at the disposal of the Government though not included in the Reserve Forest. Thus, the entire land owned by Ex. Zamindhar of Singampatti was brought under the provision of Section 26 of the Act. It is to be noted, at the relevant point of time, a request was made on behalf of the Ex. Zamindhar of Singampatti by the Manager of the Estate, which came under the Management of the Court of Wards. Accordingly, a request was made by the guardian appropriately. The following passage would be relevant:
“No. 208:—-
In exercise of the powers conferred by sections 26 and 32 of the Madras Forest Act, 1882 (Madras Act V of 1882), the Governor in Council in hereby pleased to make the following rules to regulate the management of the forest and waste lands in the Singampatti estate in the Tirunelveli district, now under the management of the Court of Wards. These rules are subject to all rights now legally vested in individuals and communities.
Rules to regulate the management of the forest and waste lands in the Singampatti Estate, Tirunelveli district.
1. Land at the disposal of the estate will for the purpose of these rules to be classed as (a) reserved land and (b) unreserved land.”
13. The entire land thus became the forest land under the Tamil Nadu Forest Act, 1882. On 26.06.1954, the Commissioner of Land Administration sent a note to the Government by which it was suggested that the petitioner Company may be given permission to continue, subject to the condition that the existing forest should be preserved. Thus, there would be no further clearance. It was further suggested that if the aforesaid suggestion is not agreeable, then the Government may take steps to terminate the lease. The following is the suggestion made:
“2. The Board agrees with the collector that it is preferable to negotiate a settlement with the Company instead of compulsory action under the Abolition Act in the first instance. The Board agrees with the suggestion of the collector that a notice may be given to the company stating that the Government consider that the existing forest should be preserved and that no further clearance should be allowed. The Company may be also told that if it insists on its right under the lease deed to clear the remaining forest area for plantation purpose, the Government will be obliged to terminate the lease but on the other hand Government will be prepared to consider the question of entering into a fresh lease under which the firm may retain the area already under plantation for the remaining years of the lease.
3. The Board request the early orders from the Government in the matter.”
14. The Collector of Tirunelveli, accordingly sent a communication to the petitioner on 21.02.1955. In the meanwhile, the entire Estate of Singampattai in Singampatti in Ambasamudram Taluk in Tirunelveli District along with forest was taken over by the Government by Act XXVI of 1948 on 19.02.1952. The under mentioned paragraph would delineate the stand taken by the Government:
“4. The Government consider that the forest area not yet cleared for plantation purposes, should be preserved as such and that it is in the public interest not to allow any further clearance of this forest area. If you still insist on your right under the lease deed to clear the remaining forest area for plantation purposes, the Government will be obliged to terminate the lease as provided in Section 20 of the Madras Estates Abolition and Conversion into Ryowari Act XXVI of 1948. If on the other hand you agree to the preservation of the existing forest area, the Government are prepared to consider the question of entering into a fresh lease with you under which you may retain the area already under plantation for the remaining years of the lease.
5. Please, therefore state within a fortnight from the date of receipt of this notice, whether you agree to the proposals set out above.”
15. Thereafter, the Revenue Department passed G.O.Ms. No. 2912 dated 08.08.1958. It is reproduced hereunder:
“The Government approve the proposal of the Board of Revenue to issue directions under Section 19-A of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, with a view to allow the Bombay-Burmah Trading Corporation Limited, Bombay, to remain in possession of the entire area of 8,373-57 acres of forest land in Singampatti estate in the Tirunelveli District which had been leased out to the corporation by the ex-landholder of that estate, for the rest of the lease period, subject to all the conditions of lease, including those relating to payment of rent and subject also to the terms and conditions embodied in the draft proceedings submitted by the Board with its Reference read above.”
16. Accordingly, an order was passed by the Commissioner of Land Revenue Civil Suppliers & Settlements dated 13.08.1958, under Section 19-A of Madras Act XXVI of 1948. It is needless to state that under the Board of Revenue Abolition Act, 1980 with specific reference to Section 10, the power of the Board of Revenue has been taken by the Commissioner of Land Revenue. For better appreciation the operative portion of the aforesaid order is shown below:
“2. In Exercise of the powers conferred by Section 19-A of Madras Act XXVI of 1948, the Board of Revenue, Madras, accordingly hereby directs that Lessors Bombay Burma Trading Corporation Ltd., Bombay may remain in possession of the entire lease area for the rest of the lease period subject to all the conditions of the lease, including those relating to payment of rent and subject to the following additional terms and conditions which are considered necessary in the public interests.
(i) The company shall not clear any portion of the catchment area of Kusavanguli assuring 970 acres at t.p. South-east corner of the lease area within the boundaries indicated by thick red line in the sketch attached, as the clear felling of this area will be detrimental to forest conservancy and will also lead to soil erosion in the catchment area of the Manimuthar River.
(ii) The said company shall, in the rest of the area leased out to it, arrange to clothe rapidly with vegetation any extent by it and adopt and maintain effective measures for the prevention of soil erosion and
(iii) not withstanding anything to the contrary contained in the lease deed dated 12.02.1929, as subsequently amended, if the company violates any of the terms and conditions of the lease and does into conform to the conditions (i) and (ii) specified above, the lease is liable to be cancelled by the State Government and the State Government may re-enter and take possession of the entire lease area and the company will not be entitled to any compensation whatsoever therefor.”
17. The petitioner in clear terms accepted the decision dated 13.08.1958, as could be seen by its letter dated 11.09.1958:
“We acknowledge with thanks your letter S.E.B.9041/52 dated the 13 August 1958 in the above connection.
We note that, in exercise of the powers conferred by Section 19-A of Madras Act XXVI of 1948, the Board of Revenue, Madras, directs that we may remain in possession of the entire lease area for the rest of the lease period, subject to all the conditions of the lease, including those relating to payment of rent, and subject also to certain additional terms and conditions. We note and agree those conditions.
May we, in this connection, invite attention to a particular matter in respect of condition i) - whereby we are to abstain from clearing any portion of the catchment area of Kusanguli Ar measuring 970 acres as marked on the sketch attached to your letter. We would advise that certain portions in this area have already been cleared and planted up in past years as follows:
In the years 1931 and 1932: 100 acres of tea In the years 1951 to 1955: 143 acres of coffee In the year 1957: 6 acres of wattle 249 acres
The above plantings took place in an area for which in the years concerned - there was no prohibition in respect of clearing.
We confirm that no clearing will in future be carried out by us in the named catchment area of 970 acres; and we confirm also that we shall, in the rest of the area leased by us, clothe rapidly with vegetation any extent cleared by us and adopt and maintain effective measures for the prevention of soil erosion. This is in accordance with our general practise, and we shall likewise remain Forest Range Officer cutting undergrowth within 50 feet of all streams in our lease area.”
18. The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948) repeals the permanent settlement, the acquisition of land to holders in the permanently settled and other Estates. Thus, introduces Ryotwari Settlement in such aspects. Therefore, a Ryot has been given certain rights.
19. Section 3 of the said Act speaks of the consequences of the notification of an estate. It also applies to Forest. When once the land comes under its purview, it vests with the Government free from any encumbrances. Thus, the title gets passed on to the Government. After vesting, a request for grant of patta at the instance of the Ryot can be considered under Section 11. Section 19-A deals with non-ryot lands such as forest lands. The aforesaid provision is an exemption to other provisions which deal with ryotwari lands. As per Section 19-A there is no right available to a person in the forest land or to remain in possession. Therefore, any body in possession will not have the authorisation of law. This provision gives a discretion to the Government to permit some one to be in possession when his rights get extinguished under Section 3.
20. Section 19-A:
“19-A. Persons admitted into possession of non-ryoti land how dealt with. - (1) Except where the Government otherwise direct, no person admitted by a landholder into possession of any communal land or forest or other land which is not a ryoti land, shall be entitled to any rights in, or to remain in possession of, such land:
Provided that nothing contained herein shall apply to lands for which the landholder is entitled to ryotwari patta under section 12, 13 or 14.
(2) A direction under sub-section (1) allowing any person to remain in possession of any such land may specify-
(i) the assessment or ground-rent payable to the Government on the land for each fasli year commencing with the fasli year in which the estate is notified, and
(ii) such special terms and conditions including the period for which such person may remain in possession of the land as the Government may consider necessary in the public interest.”
21. Hence, by imposing new conditions and in exercise of the powers under Section 19-A of Act XXVI of 1948, the petitioner was allowed to continue. This order was passed on the petitioner's agreeing to its terms. Thereafter for decades the petitioner enjoyed its fruits. It did not choose to challenge the said order which as per Section 64 of the Act, attains finality. Suffice it is to say, the petitioner did not even make any attempt to file any appeal, perhaps for the reason it warranted the said order through its consent. It is also pertinent to note that the power has been exercised by the Revenue Department under Act XXVI of 1948.
22. The Ex. Zamindhar of Singampatti filed an application seeking patta. The Assistant Settlement Officer by the order dated 31.01.1959, dismissed the claim. However, an order of remand was passed in the appeal. It was held that it is for the Ex. Zamin of Singampatti to prove the exact area under cultivation done by the petitioner herein. For the reasons known, the Ex. Zamin of Singampatti did not pursue the matter insofar the area leased out to the petitioner. Thus, the application filed by him seeking patta was accordingly dismissed. Therefore, it is clear that the petitioner has challenged neither the notification of the Act XXVI of 1948 nor the order passed under Section 19-A.
23. A notification was passed under Section 4 of the Tamil Nadu Forest Act, 1882 to declare the area as a Reserve Forest. The petitioner made a claim contending that being a Ryotwari land and in view of the lease executed by the Ex. Zaindhar of Singampttai in the year 1929, he is entitled to a patta as a owner since such a right has blossomed. Incidentally, it has also been stated that even as per the order under 19-A of Act XXVI of 1948 it is entitled to continue till the period of lease.
24. Relevant provisions as mentioned above are furnished hereunder for better appreciation:
“4. Notification by The Government:— Whenever it is proposed to constitute any land a reserved forest, the Government shall publish a notification in the Official Gazette and in the Official Gazette of the district.
(a) Specifying, as nearly as possible, the situation and limits of such lands;
(b) declaring that it is proposed to constitute such land a reserved forest;
(c) appointing an officer (hereinafter called “the Forest Settlement Officer” to inquire into and determine the existence, nature and extent of any rights claimed by, or alleged to exist in favour of, any person in or over any land comprised within such limits, or to any forest produce of such land, and to deal with the same as provided in this chapter.
6. Proclamation by Forest Settlement Officer:— When a notification has been issued under section 4, the Forest Settlement Officer shall publish in the Official Gazette of the district and at the headquarters of each taluk in which any portion of the land included in such notification is situated, and in every town and village in the neighbourhood of such land a proclamation.
8. Enquiry by Forest Settlement Officer: The Forest Settlement Officer shall take down in writing all statements made under section 6, and shall inquire into all claims made under the section, recording the evidence in the manner prescribed by the Code of Civil Procedure (5 of 1908) in appeal able cases.
9. Powers of Forest Settlement Officer: For the purpose of such enquiry the Forest Settlement Officer may exercise the following powers (that is to say):—
(a) power to enter, by himself or any officer authorized by him for the purpose, upon any land, and to survey, demarcate and make a map of the same; and
(b) the powers conferred on a Civil Court by the Code of Civil Procedure (5 of 1908) for compelling the attendance of witnesses and the production of documents.
10. Claims to rights of occupancy and ownership: In the case of a claim to a right in or over and land other than the following rights:—
(a) A right of way;
(b) A right to a water-course, or to use of water;
(c) A right of pasture; or
(d) A right to forest produce;
The Forest Settlement Officer shall pass an order specifying the particulars of such claim and admitting or rejecting the same wholly or in part.
(i) Admitted claims:— If such claim is admitted wholly or in part, the Forest Settlement Officer may -
(1) come to an agreement with the claimant for the surrender of the right; or
(2) exclude the land from the limits of the proposed forests, or
(3) proceed to acquire such land in the manner provided by the Land Acquisition Act, 1870.
For the purpose of so acquiring such lands-
(i) the Forest Settlement Officer shall be deemed to be a Collector proceeding under the Land Acquisition Act, 1870.
(ii) the claimant shall be deemed to be a person interested and appearing before him in pursuance of a notice given under section 9 of that Act;
(iii) The provisions of the preceding sections of that Act shall be deemed to have been complied with; and
(iv) The Forest Settlement Officer with the consent of the claimant, or the Court (as defined in the said Act) with the consent of the claimant and of the Collector of the District may award compensation by the grant of right in or over land, or by the payment of money, or both.
16. Notification declaring Forest reserved:— When the following events have occurred namely:—
(a) the period fixed under section 6 for preferring claims has elapsed; and all claims (if any) made within such period have been disposed of by the Forest Settlement Officer; and
(b) if such claims have been made, the period fixed by sections 10 and 14 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate authority; and
(c) all proceedings prescribed by section 10 have been taken and all lands (if any) to be included in the proposed forest which the Forest Settlement Officer has under section 10 elected to acquire under the Land Acquisition Act, 1870, have become vested in the Government under section 16 of that Act;
The Government may publish a notification in the Official Gazette specifying the limits of the forest which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such notification.
The Forest Settlement Officer shall, before the date so fixed publish such notification in the manner prescribed for the proclamation under section 6.
From the date so fixed, such forest shall be deemed to be reserved forest.
17. Extinction of rights not claimed: Right in respect of which no claim has been preferred under section 6 shall thereupon be extinguished, unless, before the publication of such notification, the person claiming them has satisfied the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under section 6; in which case the Forest Settlement Officer shall proceed to dispose of the claim in the manner herein before provided.”
25. Section 8 of the Tamil Nadu Forest Act, 1882 speaks about the enquiry by the Forest Settlement Officer. Section 9 deals with his power. While doing so, he can draw the power conferred under the Civil Procedure Code. As per Section 6 of the Act proclamation by Forest Settlement Officer has to be made. If one goes by the object of the enactment, it could be seen that the powers available to declare the land as a Reserve Forest is absolute and unfiltered.
26. As per Section 10 of the Tamil Nadu Forest Act, 1882 once a claim is admitted, it is open to the Forest Settlement Officer to take steps to arrive at an agreement with the claimant for the surrender of land. Hence, if once the petitioner's claim is admitted, the Forest Settlement Officer may take appropriate steps towards surrender of land, through agreement.
27. Section 10 of the Tamil Nadu Forest Act (Act V of 1882) thus has to be seen along with Section 19-A of Act XXVI, 1948. These two provisions operate on different fields. In fact the scope and object of Act XXVI of 1948 and the Tamil Nadu Forest Act, 1882 are totally different. In the first enactment, power is exercised under Section 19-A by the Revenue Department, whereas in the second enactment the Forest Officer exercises the same. Under Section 19-A, the decision is made by the Government over a forest land to continue in possession. Whereas, a claim is adjudicated under Section 10 by the Forest Settlement Officer, the right under Section 19-A of Act XXVI of 1948 is a concession doled out by the Government, namely, Revenue Department after the land vests in it.
28. Under the Tamil Nadu Forest Act, different lands are being dealt with. Such a land can be a Forest Land as against any other. There is no bar to declare a land as forest land, especially when it vests with the Government free from encumbrance. The definition of the land on the disposal of the Government as mentioned in Section 2 of Act V of 1882 would also cover such lands. It would also cover lands which are declared as forest and which are already brought under the purview of Section 26. Section 10 deals with protecting a right accrued and claim made and therefore, does not intent to create new one. This provision also does not provide for review of an adjudication made under Section 19-A of Act XXVI of 1948. Therefore, the correctness or otherwise of an order passed under Section 19 - A and the consequential relief sought by invoking Section 11 of Act XXVI of 1948 do not come within the purview of Section 10 of Act V of 1882. This is also for the reason that Act XXVI of 1948 deals with the Revenue Department. Therefore, the relief sought for under Section 10 of Act V of 1882 by showing only the Forest Department as a party respondent cannot be granted. After all, the District Forest Officer may at best execute an order passed under Section 19-A of Act XXVI of 1948. To put it differently, it is open for the Revenue Authority to take action as per law in pursuant to a decision made under Section 19-A of Act XXVI of 1948, which would not come under Section 10 of Act V of 1882. Resultantly, an authority cannot be asked to grant a relief under Section 11 of Act XXVI of 1948 in an adjudication process under Section 10 of Act V of 1882. Therefore, resultantly an adjudication under Section 10, can only be done when a right is established under any other Act or Law but not by seeking such a right. In the later case, the forum is one under Act XXVI of 1948.
29. The Forest Settlement Officer has to act within his powers. He cannot go into the issues which require to go beyond the notification. He is also not an appellate authority to go into the validity of a notification. Therefore, any claim having the result of setting aside an order under Section 19-A of Act XXVI of 1948 is beyond the jurisdiction for such Settlement Officer. To make this position more clear, even in the absence of notification under the Tamil Nadu Forest Act, declaring a land as a Reserve Forest, it is well open to an authority under Act XXVI of 1948 to take action as per law.
30. Section 16 of Act V of 1882 deals with the final notification, which declares the land to be Reserved Forest. To come under Section 16(c), all proceedings prescribed under Section 10 are to be concluded followed by the inclusion of forest before vesting takes place. Once notification is published in accordance with Section 16, then the land concerned would become a reserved forest.
31. Section 17 of Act V of 1882 deals with extinction of rights claimed under this provision. A right has to be claimed before the publication of notification under Section 16. Such a claim has to be made before Forest Settlement Officer. Therefore, once a notification has been issued under Section 16 of the Act, then a claimant is estopped from making any claim.
32. The District Forest Officer duly complied with the order dated 08.08.1958, passed in exercise of powers under Section 19-A of Act XXVI of 1948 by executing a document for the possession till the date of the original lease. Thereafter, a notification was passed under Section 4 of the Tamil Nadu Act V of 1882, seeking to declare the area as a Reserve Forest Area. As stated above, the two claims made by the petitioner was rejected. The petition was filed way back in the year 1979. Three times, orders of remand were passed at the instance of the appellate authority as well as this Court. In the meanwhile, the challenge made by the petitioner to the notification under Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 was dismissed in W.P. No. 1694 of 1999 by the order dated 03.01.2006. The operative part of the order is recapitulated hereunder:
“5. The main contention raised by the petitioner is that plantation lands are only agricultural lands and not forest lands and the provisions of Tamil Nadu Hill areas (Preservation of Trees) Act, 1955 cannot be extended to that area. It is clearly stated in the counter that the respondent had extended the jurisdiction of the Act to all hill areas above 600 metres of sea level in Ambasamudram Taluk and the subject land forms part of it. The writ petitioner is not the owner of the land and the land in question is the Government forest land, which was leased out to the petitioner for a particular period and the petitioner has grown the trees for shade purpose, which will be governed by the rules and regulations which governs the area. Moreover, the Act is regulative in nature and not prohibitive. Any person who wants either to cut the tree or remove the same, can apply to the Committee constituted under Section 3 of the Act seeking permission and an appeal has also been provided. The Act has been enacted to stop indiscriminate cutting of trees in hill areas involving large scale deforestation and resulting in considerable soil erosion.
6. The petitioner has not made out any case for quashing the impugned order. There are no merits in the writ petition and the same is dismissed. No costs.”
33. The aforesaid order clearly states that the land in question is a forest land. A Notice was issued to the petitioner requiring it to show cause as to why action should not be taken for violating the order passed under Section 19-A of Act XXVI of 1948 followed by the supplemental agreement in clearing the forest lands, that too in the catchment area and for enhancement of rent. In this connection it is needless to state a paltry sum of Rs. 1.75 per acre has been fixed when the lease was executed in the year 1929 with the Ex. Zamin of Singampatti. The benevolent shown by him was duly extended by the Government at the time of passing order under Section 19-A of Act XXVI of 1948 followed by the lease. This was proposed to be increased by another communication of the Deputy Director, Project Tiger, Ambasamudram dated 13.10.2005. The petitioner curiously challenges the above show cause notice in W.P. No. 41359 of 2005 and the communication dated 13.10.2005 in W.P. No. 41358 of 2005. Incidentally W.P. No. 41360 of 2005 has been filed seeking to issue a mandamus to issue Ryotwari patta.
34. Rather surprisingly these writ petitions along with interim orders having been kept pending for long, presumably on the ground that the litigation started by the petitioner under Section 10 of Act V of 1882 is yet to be over and therefore, they can be taken up only after its finality. This Court is of the view that that logic would require adopting of the reverse methodology. Had the writ petition filed in W.P. No. 41359 of 2005 been disposed of at an earlier date, there would not be any need to go into the claim raised under Section 10 of Act V of 1882.
35. The Forest Settlement Officer ultimately dismissed the claim. Before him it was mainly contended that the petitioner is entitled for the benefit of Act XXVI of 1948. The appeal filed before the I Additional District Court, Tirunelveli in C.M.A. No. 4 of 2010 was also dismissed. Challenging the above, C.R.P. (MD) No. 2745 of 2015 has been filed.
36. An impleading application has been filed in C.M.P. No. 3501 of 2016 by a person claiming to be a legal heir of Ex. Zamin of Singampatti. It is his case that he continues to be the owner.
37. With the above back drop, let us see the contentions raised.
38. The learned Senior Counsels appearing for the petitioner would submit that the petitioner is a Ryot. Therefore, his right has blossomed into absolute ownership. Alternatively, the petitioner is entitled for the benefit of the order passed under Section 19-A of Act XXVI of 1948 followed by the lease deed executed. The Forest Settlement Officer has acted in bias. He had consulted his superiors. Thus, he has not exercised his independent power. An opinion has been sought for from the Government Pleader, who has appeared for the respondent. The Forest Settlement Officer is a Court. Hence, he ought to have accepted the documents filed. The land in question is not a land at the disposal of the Government. The order passed under Section 19-A Act XXVI of 1948 cannot prevent the petitioner from getting its claim adjudicated. The order passed by the Estate Appellate Tribunal will have to be considered in petitioner's favour. The appellate Court has also committed an error in not considering the issues raised. The fact that there was cultivation as held by the Committee Constituted as per the judgement of the Hon'ble Apex Court in T.N. Godavarman Thirumulkpad v. Union of India [(1997) 2 SCC 267] has to be taken note of. There is no power to issue the show cause notices. The lease deed does not provide for such a contingency.
39. To buttress the submissions, the learned Senior Counsels have made reliance upon the following judgments:
(1) Mariabackiammal v. District Forest Officer, Madurai, North Division [1990 2 LW 478].
(2) K.L.M. Ramamoorthy v. State of Madras [1970 ILR 2 Mad 788].
40. The learned Senior Counsel appearing for the respondents would submit that the Forest (Conservation) Act, 1980 would take in itself sweep all the action done under the Act XXVI of 1948. The land has been classified and detailed as Forest for nearly two centuries. The petitioner has not challenged any of the proceedings which underline the aforesaid position. The revenue records also would vouch for the nature of the land. The petitioner is estopped from making the claim for ownership. It cannot approbate and reprobate as held by the Hon'ble Apex Court in T.N. Godavarman Thirumulkpad v. Union of India (2016 SCC OnLine SC 916). The character of the land would remain as Forest even during the interregnum of the proceedings. Considering the importance of the place and in larger public interest the case of the petitioner will have to be rejected. There is no procedural irregularity involved. The first officer who dealt with did not pass the order. The consultation of the officer was not with reference to the nature of the order but to expedite the process. The learned Government Pleader did not give any opinion. The Forest Settlement Officer does not have jurisdiction to go into the issues governing Act XXVI of 1948. The question as to whether the petitioner violated the conditions is one for adjudication. A mere show cause notice cannot be challenged. What is relevant in the order passed under Section 19-A of Act XXVI of 1948 than the consequential deed. The respondents do have the power to revise the rent. Therefore, the Civil Revision Petitions as well as the Writ Petitions will have to be dismissed.
41. One more statement was made that the petitioner is exploiting the land for commercial activities. It has mortgaged it for about 300 Crores. Hence, such an action is illegal and contrary to the agreed permit. By way of reply, Senior Counsel for the petitioner would submit that there is no pleading and evidence to support the allegation made and hence to be eschewed.
42. The learned counsel appearing for the impleading petitioner would submit that the revision itself is not maintainable in law. It is the proposed impleading petitioner who is the owner of the property. The relationship between the petitioner and the official respondents cannot be accepted as the original lease deed still exists.
43. After hearing the arguments and after going through the pleadings the matter stood posted under the caption for being spoken to on 17.08.2017, thereafter, on 18.08.2017. This is for the reason, the respondents have taken a stand in the counter affidavit filed before the Forest Settlement Officer, I Additional District Court, Tirunelveli and before this Court that the possession of the petitioner will not be disturbed in so long as the activities are not illegal. The learned Senior Counsel appearing for the respondent would submit that the aforesaid stand has to be seen contextually and that too in the light of the Forest (Conservation) Act, 1980.
44. I have considered the rival submissions and perused the materials available on record along with the pleadings and written arguments.
45. There is no dispute or controversy over facts. The petitioner got a fresh leash of life in pursuant to the order passed by the then Board of Revenue under Section 19-A of Act XXVI of 1948 on 13.08.1958. This order had attained finality as the petitioner has also wanted it. Having enjoyed the fruits of the said order, a stale and un-acceptable claim cannot be made under Section 10 of Act V of 1882, claiming title. This is rather strange. As discussed in detail, the petitioner is trying to mix up the two enactments and in the process seeks an adjudication from the authority, who is not otherwise competent to do so. The authority who passed the order under Section 19-A of Act XXVI of 1948 has not been added as party in the present proceedings. The petitioner also cannot seek to set aside the said order passed under Section 19-A of Act XXVI of 1948 in a claim under Section 10 of Act V of 1882. The power to initiate action in pursuant to the order under Section 19-A of Act XXVI of 1948 is available only to the authority who passed it. The Forest Settlement Officer can only act under the Act. While doing so, he is concerned with the claim made. Such a claim is based upon a right, which is a right otherwise concluded. The discussion made above on the scope and applicability of Section 19-A of Act XXXVI of 1948 viz-a-viz under Section 10 of Act V of 1882 would clearly establish that the petitioner does not have semblance of right to claim patta before the Forest Settlement Officer under Act XXVI of 1948. The petitioner is indirectly trying to set aside the order under Section 19-A of Act XXVI of 1948.
46. As the beneficiary of the order passed under Section 19-A of Act XXVI of 1948, it cannot be permitted to approbate and reprobate.
47. This principle has been considered at length by the Hon'ble Apex Court in Shyam Telelink Ltd. v. Union of India [(2010) 10 SCC 165]. The following paragraphs are apposite:
“23. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.
24. In Ambu Nair v. Kelu Nair (AIR 1933 PC 167) the doctrine was explained thus: (IA p. 271)
“Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker [(1878) 8 CP 350] at p. 357:
“.. at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage’.”
25. View taken in the above decision has been reiterated by this Court in City Montessori School v. State of Uttar Pradesh [(2009) 14 SCC 253]. To the same effect is the decision of this Court in New Bihar Biri Leaves Co. v. State of Bihar [(1981) 1 SCC 537] where this Court said:
“48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd., [(1921) 2 KB 608])”
26. The decision of this Court in R.N. Goswain v. Yashpal Dhir (1992) 4 SCC 683 : AIR 1993 SC 352, brings in the doctrine of election in support of the very same conclusion in the following words: (SCC pp. 687-88, para 10)
“10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that -
“… A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage”.
[See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. ((1921) 2 KB 608), KB at p.612, Scrutton, L.J.] According to Halsbury's Laws of England, 4 Edn., Vol. 16,
“1508. Examples of the common law principle of election. - After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside”.
27. In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited. American Jurisprudence, 2 Edn, Vol. 28, pp. 677-80 discusses “estoppel by acceptance of benefits” in the following passage:
“Estoppel by the acceptance of benefits. - Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.
As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance.
This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience.”
48. In Cauvery Coffee Traders v. Hornor Resources [(2011) 10 SCC 420], it was held that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. A fruitful recapitulation of the relevant paragraphs is hereunder:
“25. In R.N Gosain v. Yashpal Dhir ., (1992) 4 SCC 683 : AIR 1993 SC 352, this Court has observed as under:—
“33. In R.N Gosain v. Yashpal Dhir ., (1992) 4 SCC 683 : AIR 1993 SC 352, this Court has observed as under: (SCC pp. 687-88, para 10)
“10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.”
34. A party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide: Nagubai Ammal & Others v. B. Shama Rao & Others, AIR 1956 SC 593; C.I.T. v. Mr. P. Firm Maur, AIR 1965 SC 1216; Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati, AIR 1969 SC 329; P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 : AIR 1998 SC 2979; Babu Ram v. Indrapal Singh, (1998) 6 SCC 358 : AIR 1998 SC 3021; Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders & Contractors, (2004) 2 SCC 663 : AIR 2004 SC 1330; Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 : AIR 2009 SC 713; and Pradeep Oil Corporation v. Municipal Corporation of Delhi, (2011) 5 SCC 270).
35. Thus, it is evident that the doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity.
The aforesaid principle has been reiterated in Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd., [(2013) 2 MLJ 756 (SC)].
49. The petitioner has not at all challenged any of the proceedings right from the notification issued under Act XXVI of 1948. Its claim based upon the order of the Madras Estate Abolition Tribunal dated 26.09.1962 has no basis. It was only an order of remand that too at the instance of the Ex. Zamindhar of Singampatti. Even this application has been abandoned by him. Secondly, the petitioner got the lease executed in his favour only on 01.12.1966, in compliance with the order under Section 19-A of Act XXVI of 1948, after the order of remand by the Estate Abolition Tribunal on 26.09.1962. Hence, it can never rely on it. Therefore, in all perspective it does not lie in the mouth of the petitioner to raise the concluded issue. Hence, this Court is constrained to hold that the claim made is absolutely frivolous. There is already a vesting has been taken place to the knowledge of the petitioner as early as in the year 1952 itself. Instead of making an application under Section 11 seeking patta it rather accepted the order under Section 19-A of the Act XXVI of 1948, by giving his consent. Petitioner's indirect attempt has come after nearly two decades. Therefore, it is hit by delay, latches and acquiescence. As discussed earlier, he could have raised the issue even without a notification under the Forest Act. Therefore, there is no cause of action available.
50. Coming to the issue pertaining to the manner in which the adjudication was made, one has to remember that remands have been made on three occasions. It is unfortunate that the legal battle which started in 1979 is yet to reach its finality. The Forest Settlement Officer, who took part in the discussion was not the one who passed the order. Even otherwise there is no discussion to the claim of the petitioner. He was not instructed to dismiss the claim. There is difference between official bias and personal bias. Sufficient materials are required to conclude the official bias. The petitioner has not raised any plea before the next officer that he should not hear it. In fact before the appellate authority the petitioner was heard at length. He did not choose to mark the documents therein. Even otherwise, they would not have hold the case of the petitioner in otherwise. The issues raised are only legal. Therefore, the question of considering the document sought to be filed by the petitioner does not arise. The parties agreed on the issues involved, as clearly recorded by the appellate authority. For any procedural violation prejudice has to be shown.
51. There is no prejudice in the present case, since the issue is relating to entitlement of the petitioner based on legal terms. The question of cultivation has got no relevancy to the claim. Suffice it to state that the classification continuously stands as a “Forest” insofar as the land in question is concerned. The counsel for the petitioner was allowed to have access to files by this Court. There is no communication sent by the Government Pleader to the Forest Settlement Officer. As stated above, even otherwise this issues are irrelevant, once the claim of the petitioner seeking title itself is baseless. Hence, the technical objections raised on the orders passed are accordingly rejected.
52. It is also to be noted, at the cost of repetition, the order passed by this Court in W.P. No. 1694 of 1999 would also nonsuit the petitioner to make any claim under Act XXVI of 1948. The relevant paragraph is reproduced hereunder:
“5. The main contention raised by the petitioner is that plantation lands are only agricultural lands and not forest lands and the provisions of Tamil Nadu Hill areas (Preservation of Trees) Act, 1955 cannot be extended to that area. It is clearly stated in the counter that the respondent had extended the jurisdiction of the Act to all hill areas above 600 metres of sea level in Ambasamudram Taluk and the subject land forms part of it. The writ petitioner is not the owner of the land and the land in question is the Government forest land, which was leased out to the petitioner for a particular period and the petitioner has grown the trees for shade purpose, which will be governed by the rules and regulations which governs the area. Moreover, the Act is regulative in nature and not prohibitive. Any person who wants either to cut the tree or remove the same, can apply to the Committee constituted under Section 3 of the Act seeking permission and an appeal has also been provided. The Act has been enacted to stop indiscriminate cutting of trees in hill areas involving large scale deforestation and resulting in considerable soil erosion.
6. The petitioner has not made out any case for quashing the impugned order. There are no merits in the writ petition and the same is dismissed. No costs.”
53. The question as to whether the petitioner is a Ryot or not, in the considered opinion of the Court is not required to be taken note of in this proceeding especially in view of the scope of the revision and the order passed under Section 19-A of Act XXVI of 1948. Similarly, the applicability of Forest Conversation Act, 1980 is an issue which can be decided independently, if the respondents make reliance upon it, as the said provision not only applies to Reserve Forest but a forest land involving non forest activities.
54. Coming to the petition filed by the petitioner in C.M.P. (MD) No. 3501 of 2016, the same is liable to be dismissed. His Right including title cannot be adjudicated in the present proceedings. After all the writ petitioner has initiated the proceedings in 1977. The matter has come before this Court after three rounds. This petitioner is a fence sitter and thus made an half-hearted attempt. The issue is adjudication of claim under Section 10 of Act V of 1882. Now the petitioner in this application seeks to adjudicate his right, which is impermissible. Therefore, the petition filed is liable to be rejected.
55. Coming to the second issue, in the counter affidavit filed before the Forest Settlement Officer, the respondents have taken the following stand:
“It is not the intention of the Government to drive away the lessee (Claimant herein) in violation of the lease agreement, Government will always abide by the provisions of the lease to which it is a party and will not proceed against it until or unless the lessee (the claimant) does anything in violation of the lease deed or the enactments or statue brought in subsequently enforcing certain activities in the overall Nation or Regional or Public Interest.”
56. In the counter affidavit filed before the appellate forum the following stand has been taken:
“Even in this stage the Department has no intention in vacating the lessee or his men from the said land till the original lease period is over. It means that he can continue his occupation as a lessee in the said land till 2028. But this does not have any binding over the decision of the Forest Settlement Officer, who had rejected the claim. The claim of the appellant company is for the exclusion of the land from declaring as Reserved Forest. There is no sufficient ground shown by the appellant company for not declaring or excluding the said land as Reserved Forests. Declaring the land as Reserved Forests will no way affect the legal rights of the appellant company. It will affect only the illegal activities of the appellant company. As long as the company abides the Acts and Rules, the appellant company need not worry about the expulsion from the land as there is no entail to vacate the appellant company from the land.”
57. Even before this Court, in the reply affidavit filed seeking to vacate the interim order the following averments have been made:
“.. The petitioner-Company is not entitled to any right, but they can remain in possession in the land till 2028 as per the Lease Agreement. The possession of the Petitioner-Company is only permissible occupation under the Lease Deed executed by them to the erstwhile Zamindar of Singampatti and by B.B. No. 9041 dated 13.8.1958 of the Board of Revenue.”
58. However, this factor has not been taken note of by the Forest Settlement Officer. The appellate Forum has merely stated that it is for the petitioner to workout its remedy. Though it can be stated that the aforesaid averments would not take away the power of the respondents to take further action on the date of the claim and the adjudication, there was no threat of dispossession. Therefore, both the Forest Settlement Officer and the appellate Forum ought to have admitted the claim while giving liberty to the respondents to proceed in accordance with law. This liberty also would include the alleged violation of the conditions imposed under Section 19-A of Act XXVI of 1948 followed by the lease deed and any other action to be taken including one under the Forest (Conservation) Act, 1980 as the case may be, of course, in accordance with law.
59. This Court is quite aware of the role required to be played by a Court in a revision petition. After all, what is important is the decision making process as against the decision. However, no useful purpose would be served in remanding the case after all these years of litigation, which might create further delay. There is no denial to the claim made. It has been made correctly as any failure would lead to waiver of a right under Section 17 of Act V of 1882. Hence, the claim of the petitioner based on Section 19-A of Act XXVI of 1948 is admitted subject to the rider discussed above. By this, this Court feels that the interest of the respondents is also sufficiently safe-guarded through the liberty given.
60. In W.P. No. 41359 of 2005, the petitioner has challenged the show cause notice issued. As seen from Section 10 of Board of Revenue Abolition Act, 1980, the respondent, who issued the show cause notice for cancellation for the alleged violation of the order passed under Section 19-A of Act XXVI of 1948 read with supplemental agreement is the competent authority. Similarly, the question of alleged violation is a matter of fact to be adjudicated upon. The Report of the Committee, who made investigation pursuant to the inspection has also to be seen in the factual context. Any way it has to be seen as to whether it includes the allegations of illegal clearing of forest or one already under cultivation or not. The petitioner was merely asked to report for the proposed increase in rent. Hence, there is no final adjudication. Instead of giving its response, it has rushed to this Court. The oral submission made by the learned Senior Counsel for the Respondents cannot be considered in these proceedings. Apart from lack of pleadings and evidence, no such plea has been raised earlier. However, if the respondent concerned is of the view that the action of the petitioner in mortgaging the land is contrary to law, it is well open to it to take action warranted by following the due procedure. In as much as this Court has already rejected the revision petition filed on the issue of Ryot patta in favour of the petitioner W.P. No. 41360 of 2005 is also liable to be rejected, especially in the teeth of order under Section 19-A of Act XXVI of 1948.
61. Insofar as W.P. No. 41358 of 2005 is concerned, challenge is to a communication by which the Deputy Director, Project Tiger, Ambasamudram has asked the petitioner to come prepared and sign the draft supplemental agreement, which deals with revised lease rent, pursuant to the earlier communication sent by the Secretary to Government, Environment & Forests Department, Chennai - 9 to the Principal Chief Conservator of Forest, Chennai - 15. From the above, this Court is of the view that the said communication is not a final adjudication/determination. It merely asked the petitioner to agree for a draft supplemental agreement. Therefore, when there is a draft supplemental agreement there cannot be any enhancement. For the aforesaid purpose, the petitioner will have to be given a notice before determining the lease amount. Therefore, there is no need to challenge the order dated 13.10.2005, which is only a communication in pursuant to the letter of the Government dated 29.04.2005.
62. Law and Equity may run on the same channel but their water do not mix always. The said principle though settled, is dealt with by Apex Court in T. Ravi v. B. Chinna Narasimha [(2017) 7 SCC 342]:
“95. In Nova Ads v. Metropolitan Transport Corporation [(2015) 13 SCC 257], this Court has considered various decisions like Raja Ram Mahadev Paranjype v. Aba Maruti Mali [AIR 1962 SC 753], P.M. Latha v. State of Kerala [(2003) 3 SCC 541], Raghunath Raj Bareja v. Punjab National Bank [(2007) 2 SCC 230], Madamanchi Ramappa v. Mothaluru Bojjappa [AIR 1963 SC 1633], Laxminarayan R. Bhattad v. State of Maharashtra [(2003) 5 SCC 413], Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577], E. Palanisamy v. Palanisamy [(2003) 1 SCC 123], India House v. Kishan N. Lalwani . [(2003) 9 SCC 393] and has observed that law will prevail over the equity principle when they cannot be harmonized thus: (Nova Ads case [(2015) 13 SCC 257], SCC p.282, paras 45 - 47)
“45. In Raja Ram Mahadev Paranjype v. Aba Maruti Mali [AIR 1962 SC 753], a three-Judge Bench has opined that: (AIR p. 756, para 9)
“9. … Equity does not operate to annul a statute. This appears to us to be well established but we may refer to White and Tudor's Leading cases on Equity (9 Edn., p. 238), where it is stated:
‘Although, in cases of contract between parties, equity will often relieve against penalties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute.”
46. In P.M. Latha v. State of Kerala [(2003) 3 SCC 541], it has been opined: (SCC p. 546, para 13)
“13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law.”
47. In Raghunath Raj Bareja v. Punjab National Bank [(2007) 2 SCC 230], the Court observed that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail. The Court further ruled that equity can supplement the law, but it cannot supplant or override it. In this context, reliance was also placed upon Madamanchi Ramappa v. Muthaluru Bojjappa [AIR 1963 SC 1633], Laxminarayan R. Bhattad v. State of Maharashtra [(2003) 5 SCC 413,] Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577], E. Palanisamy v. Palanisamy [(2003) 1 SCC 123], and India House v. Kishan N. Lalwani . [(2003) 9 SCC 393].”
96. Reliance has been placed on Raghunath Rai Bareja v. Punjab National Bank [(2007) 2 SCC 230], in which the Latin maxim “dura lex sed lex” which means “the law is hard, but it is the law” was applied. Relying upon that it has been observed that equity can only supplement the law, but it cannot supplant or override it. But when there is a conflict between law and equity, it is the law which has to prevail.”
63. Though the element of public interest is overwhelming, keeping in mind, the extent of the power required to be exercised, judicial restraint and discipline, the following order is passed:
(i) The claim made by the petitioner under Section 10 of Act V of 1882 seeking a right as a Ryot under Act XXVI of 1948 stands rejected.
(ii) The claim made based upon Section 19-A of Act XXVI of 1948 stands admitted.
(iii) Consequently, the possession of the petitioner shall not be disturbed.
(iv) However, the aforesaid admission will not stand in the way of the respondents to act in accordance with law either under the Forest (Conservation) Act, 1980 or violation of the terms and conditions mentioned under the order passed under Section 19-A of Act XXVI of 1948, followed by a supplemental agreement. In the earlier contingency, among other issues, the question of jurisdiction is also left open. Similarly, the respondent concerned can also take action as per law qua rent fixation.
(v) As the second claim of the petitioner is admitted on the basis of the order passed under Section 19-A of Act XXVI of 1948, liberty is given to the Forest Settlement Officer to act as per Section 10 of the Act 5 of 1882. Such a course aforesaid to be adopted shall have no bearing on the right of the respondents to proceed in accordance with law.
(vi) Civil Revision Petition (MD) No. 2745 of 2015 is allowed in part. The Civil Miscellaneous Petition (MD) No. 3501 of 2016 filed for impleadment is dismissed.
(vii) In view of the above findings rendered, W.P. No. 41360 of 2005 stands dismissed, making it clear that the petitioner is not entitled for any patta.
(viii) W.P. No. 41359 of 2005 also stands dismissed. The respondents are directed to pass appropriate orders in pursuant to the show cause notice issued within 8 weeks from the date of receipt of a copy of this order. The petitioner is at liberty to give a suitable reply within two weeks from the date of receipt of a copy of this order.
(ix) The respondents are at liberty to issue a notice to the petitioner indicating the revised rent payable. As and when such notice is issued, the petitioner shall give a suitable reply. Thereafter, appropriate orders to be passed. The entire exercise has to be completed within a period of 8 weeks from the date of issue of notice. All the issues including the right to claim under the lease deed are left open. With the above direction W.P. No. 41358 of 2005 stands disposed of.
(x) The petitioner is further directed not to extend the area of cultivation or to clear the forest in any manner as submitted by the learned Senior Counsel appearing for the petitioner and in tune with the terms and conditions agreed upon inter se.
64. Consequently, connected Miscellaneous Petitions are also dismissed. No costs.
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