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The Indian Forest Act, 1927
Section 4 in The Indian Forest Act, 1927
The Land Acquisition Act, 1894
The Tamil Nadu Legislative Council (Abolition) Act, 1986.
Section 6 in The Land Acquisition Act, 1894

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Madras High Court
M.Indira vs State Of Tamilnadu on 7 March, 2012

DATED: 07 / 03 / 2012

CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

W.P.NOS.17233, 20469 AND 21261 OF 2009

AND 7941 OF 2010

AND CONNECTED MISCELLANEOUS PETITIONS

W.P.NO.17233 / 2009

1. M.Indira

2. R.Lakshmi

3. E.Ravi

4. N.Anadal

5. C. RAMU

6. R.TAMILARASI

7. N.PACHIAPPAN

8. B.RAJESH

9. V.GEETHA

10. S.RANI

11. B.VALARMATHI

12. R.GOWRI

13. R.MALLIKA

14. S.IRULANDI

15. E.VALLIAMMAL

16. K.KASIRAJAN

17. B. MARY

18. KANNAN

19. P.AMMU

20. P.RAMAN

21. VENNILA

22. R.GOWRI

23. E.RAVI

24. P.VELU

25. KUPPU

26. R.RAJESWARI

27. DEVAKI

28. LAKSHMI

29. MALA

30. MANIMARAN

31. KUMAR

32. BHAVANI

33. LOGAMMAL

34. N.AYISHA MARIYAM

35. VIJAY BABU

36. SUDHA

37. ELUMALAI

38. ADHIKESAVAN

39. MURALI .. PETITIONERS

Vs

1. STATE OF TAMILNADU

REP BY ITS SECRETARY TO GOVERNMENT

ENVIRONMENT AND FOREST DEPARTMENT

FORT ST. GEORGE, CHENNAI - 9.

2. STATE OF TAMILNADU

REP BY ITS SECRETARY TO GOVERNMENT

REVENUE DEPARTMENT

FORT ST.GEORGE, CHENNAI - 9.

3. THE DISTRICT COLLECTOR

KANCHEEPURAM AND DT.

4. THE TAHSILDAR (LAND ACQUISITION)

TAMBARAM TALUK, Tambaram,

KANCHEEPURAM DT.

5. THE SPECIAL TAHSILDAR

(FOREST SETTLEMENT)

TIRUVALLUR, TIRUVALLUR DISTRICT. .. RESPONDENTS

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records on the file of the 1st respondent relating to the notification issued in Tamil Nadu Government Gazette in No.15, dated 18.04.2007 and in G.O.Ms.No. 52, dated 09.4.07 of 1st respondent and quash the same and further forbear the respondents from interfering with peaceful possession and enjoyment of the petitioners of the land in S.Nos.657/3A2 and 657/3A3 in Mettukuppam, VPG Avenue Extension, Pallikaranai Village, Tambaram Taluk, Kancheepuram District.

For Petitioners : Mr.P.Vijendran

For Respondent-1 : Mr.M.K.Subramanian

Special Government Pleader (Forest)

For Respondents-2-5: Mr.M.C.Swamy

Special Government Pleader

For Amicus Curiae : Mr.T.Mohan

W.P.NO.20469 / 2009

M.INDIRA .. PETITIONER

vS

1. STATE OF TAMILNADU

REP. BY ITS SECRETARY TO GOVERNMENT

ENVIRONMENT AND FOREST DEPARTMENT

FORT ST. GEORGE, CHENNAI - 9.

2. STATE OF TAMILNADU

REP. BY ITS SECRETARY TO GOVERNMENT

REVENUE DEPARTMENT

FORT ST.GEORGE, CHENNAI - 9.

3. THE DISTRICT COLLECTOR

KANCHEEPURAM DISTRICT, KANCHEEPURAM.

4. THE TAHSILDAR (LAND ACQUISITION)

TAMBARAM TALUK, TAMBARAM,

KANCHEEPURAM DISTRICT.

5. THE SPECIAL TAHSILDAR (FOREST SETTLEMENT)

TIRUVALLUR, TIRUVALLUR DISTRICT.

6. THE VILLAGE ADMINISTRATIVE OFFICER

PALLIKARANAI VILLAGE,

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM DISTRICT.

7. THE INSPECTOR OF POLICE

PALLIKARANAI POLICE STATION

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM DISTRICT. .. RESPONDENTS

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from interfering with the peaceful possession and enjoyment of the land and building situated in S.No.657/3A2 and 657/3A3 in Mettukuppam, VPG Avenue Extension, Pallikaranai Village, Tambaram Taluk, Kancheepuram District.

For Petitioner : Mr.P.Vijendran

For Respondent-1 : Mr.M.K.Subramanian

Special Government Pleader (Forest)

For Respondents 2-7: Mr.M.C.Swamy

Special Government Pleader

For Amicus Curiae : Mr.T.Mohan

W.P.NO.21261 / 2009

1. VARASAKTHI VINAYAGAPURAM KUDIIRUPOUR

COMMON WELFARE ASSOCIATION

REP BY ITS PRESIDENT

MR.S.SELVAKUMAR

2. S. SELVAKUMAR

3. S.BASKAR

4. ABDUR SATTHAR

5. K.MARIMUTHU

6. B.SYED ALI

7. S.ANJALI

8. CHITHI POWSIYA

9. M.S.MANJULAVANI

10. A.S.NAGALATHA

11. V.SAMPATHKUMARI

12. M.KRISHNAVENI

13. S.BHAVANI

14. V.JEYA SHANKAR

15. K. JEYACHANDRAN

16. J.RAMALAKSHMI

17. S.GUNASEKARAN

18. G.SELVI

19. M.SASIDHARAN

20. D.MALIGA

21. K.DURAIKANNU

22. K.SOMU

23. KAVITHA

24. ELUMALAI

25. M.PONNUSWAMY

26. J.RADHIKA

27. NISHANTHI

28. B.MEENAKASHI

29. V.RAJENDRAN

30. R.MUTHULAKSHMI

31. R.UDHAYA

32. VASATHA

33. R.VINOD

34. R.VIVEK

35. P.MANI

36. M.RANI

37. S.MANJALI

38. S.RENUKA

39. S.MURUGASAN

40. PILLAIAMMAI

41. S.KANNAN

42. RASHOOL BEEVI

43. V.ELUMALAI

44. E.REVATHI

45. S.MASDHAN

46. DHOWLATH

47. KATHIJA BEVI

48. MOHAMMEED HANIFA

49. M.S.BUGARI

50. M.SYED ALI

51. R.JEYATHI

52. G.MANONMANI

53. K.PRAN SHANTHI

54. MOHAMMED RAFI

55. Y. MOHAMMED NAZIR

56. Y.MOHAMMED SAGIR

57. PARVEEN HASSAN

58. MUBASSIR HASSAN

59. K.LOGANATHAN

60. L.AMUTHA .. PETITIONERS

VS

1. THE SECRETARY TO GOVERNMENT

REVENUE DEPT.

ST.FORT GEORGE,

CHENNAI - 5.

2. THE SPECIAL COMMISSIONER

COMMISSIONER OF LAND ADMINISTRATION

CHENNAI - 5.

3. THE DISTRICT COLLECTOR

KANCHEEPURAM.

4. THE DISTRICT REVENUE OFFICER

PALLIKKARANAI FIRKA,

KANCHEEPURAM.

5. THE TAHILSIDAR

TAMBARAM.

6. THE EXECUTIVE OFFICER

TOWN PANCHAYAT

PALLIKKARANAI,

CHENNAI 100.

7. THE DISTRICT FOREST OFFICER

DEPARTMENT OF FOREST

PALLIKKARANAI,

KANCHIPURAM DISTRICT. .. RESPONDENTS

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, directing the 5th respondent to issue free house site patta to all the petitioners in respect of Lands situated at Village No.129, Survey No.429/2, Pallikaranai, Vinayagapuram, Chennai  100, as per G.O.(Ms).No.34, dated 23.01.2008 forthwith.

For Petitioners : Mr.R.Lakshmi Narasimhan

For Respondents 1-5: Mr.M.C.Swamy

Special Government Pleader

For Respondent-6 : Mr.J.Raja Kalifulla

For Respondent-7 : Mr.M.K.Subramanian

Special Government Pleader (Forest)

For Amicus Curiae : Mr.T.Mohan

W.P.NO.7941 / 2010

1 . LAKSHMI

2. E.RAVI

3. ADHIKESAVAN

4. SATHISHKUMAR

5. MADHAVAN

6. MUTHIAN

7. SANTHI

8. SIVAGAMI

9. KALAIYARASI

10. SENTHILKUMAR

11. LATHA

12. PONNAZHAGU

13. SOMSUNDARAM

14. KALAIARASAN

15. SUSILA

16. DURAIRAJ

17. CHITRA

18. DEVAKI

19. MALA

20. JAYAMANI

21. MANIMARAN

22. RAJESWARI

23. RANI

24. LAKSHMI

25. DEVI

26. RAMAN

27. VELU

28. GEETHA

29. JANSIRANI

30. JOHNSON

31. ASTALAKSHMI

32. USHA

33. VIJAYALAKSHMI

34. GEETHA

35. LAKSHMI

36. ANJALA

37. MURUGAN

38. ERSKIN

39. E.VALLIAMMAL

40. S.PUSHPALATHA

41. S.KOODALINGAM

42. LAKSHMI

43. KALAIVANI

44. TAMILARASI

45. RAMANI

46. RAVI

47. SELVARAJ

48. MURUGAN

49. PECHIAMMAL

50. P.VALARMATHI

51. ASSAN IBRAHIM

52. J.SHEIK MOHAMMED

53. N.AISHA MARIAM

54. HARIBIBHA NISA

55. J.VIJAYA BABU .. PETITIONERS

VS

1. STATE OF TAMILNADU

REP. BY ITS SECRETARY TO GOVERNMENT

ENVIRONMENT AND FOREST DEPARTMENT

FORT ST. GEORGE, CHENNAI  9.

2. STATE OF TAMILNADU

REP. BY ITS SECRETARY TO GOVERNMENT

REVENUE DEPARTMENT

FORT ST. GEORGE, CHENNAI  9.

3. THE DISTRICT COLLECTOR

KANCHEEPURAM DISTRICT.

4. THE DISTRICT FOREST OFFICER

KANCHEEPURAM dISTRICT,

KANCHEEPURAM

5. THE FOREST RANGER

FOREST OFFICE,

TAMBARAM, CHENNAI  45.

6. THE TAHSILDAR (LAND ACQUISITION)

TAMBARAM TALUK,

KANCHEEPURAM DISTRICT.

7. THE SPECIAL TAHSILDAR (FOREST SETTLEMENT)

TIRUVALLUR DISTRICT.

8. THE INSPECTOR OF POLICE

OKKIAM THORAPAKKAM POLICE STATION

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM district. .. RESPONDENTS

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records from the 1st respondent pertaining to the impugned notification G.O.Ms.No.52, Environment and Forest (FR14) 9th April 2007 through the Tamil Nadu Government Gazette dated 18.04.2007 and quash the same.

(Prayer amended as per order dated 07.06.2011 in M.P.No.1/2011 in W.P.No.7941/2010)

For Petitioners : Mr.P.Vijendran

For Respondents : Mr.M.K.Subramanian

1, 4 and 5 Special Government Pleader (Forest)

For Respondents : Mr.M.C.Swamy

2, 3, 6, 7 and 8 Special Government Pleader

For Amicus Curiae : Mr.T.Mohan

COMMON ORDER

As per the information sheet on Ramsar Wetlands (RIS) issued by the Chennai Circle of the Forest Department, Government of Tamil Nadu, Pallikaranai Marsh is one amongst the few last remaining natural wetlands of South India. It is situated about 20 Kms south of Chennai city. Formerly, it was in Kancheepuram District and now, it forms part of Chennai metropolis.

2.Thirty years ago, Pallikaranai Marsh measured more than 5000 hectares and now majority of swamp land is lost, due to the occupation by the Habitats, IT Parks, Roads, Highways, Multi-National Companies, Institutions, MRTS Hospital etc. as per the information sheet, referred to above. In order to protect the remaining marsh land, the Government of Tamil Nadu issued an order in G.O.Ms.No.52, Environment and Forest Department, dated 09.04.2007, to constitute 317 hectares of swamp land in Pallikaranai, as Reserved Forest, under the provisions of the Tamil Nadu Forest Act, 1882 (shortly "the Act") and the same was notified in the Tamil Nadu Government Gazette dated 18.04.2007. In all these writ petitions, the petitioners seek to challenge, in one way or the other, the aforesaid action of the Government, in constituting Reserved Forest.

3.The writ petition in W.P.No.17233 of 2009 is filed by 39 petitioners seeking to quash G.O.Ms.No.52, Environment and Forest Department, dated 09.04.2007. They have also sought to forbear the respondents therein from interfering with their peaceful possession and enjoyment of the lands in S.Nos.657/3A2 and 657/3A3.

4.In W.P.No.17233 of 2009, it is stated by the petitioners that all are residing at S.Nos.657/3A2 and 657/3A3 in Mettukuppam, VPG Avenue Extension, Pallikaranai Village, Tambaram Taluk, Kancheepuram District, for the past 30 years. But, none of them had given their residential address. According to them, the aforesaid lands are classified as Grama Natham and that they are entitled for issuance of pattas as per G.O.Ms.No.854, Revenue Department, dated 30.12.2006. As per G.O.Ms.No.854, the persons residing in Government Lands for more than 10 years, are entitled to get pattas. It is thus stated that since the petitioners are residing for more than 30 years, according to the petitioners, they are entitled to get pattas. It is alleged that the Government of Tamil Nadu, Environment and Forest Department, issued a notification dated 18.04.2007 to acquire the lands in S.Nos.657/3A2 and 657/3A3, in violation of Sections 4(1), 5(A)(1) and 6(2) of the Land Acquisition Act, 1894. It is further alleged that the Government allotted 85 acres of land in S.No.657/1A2 in Pallikaranai, to Pepsi cinema employees, vide G.O.Ms.No.142, Revenue Department, dated 16.03.1995. But the petitioners alone are disturbed and are sought to be evicted.

5.The petitioners in W.P.No.17233 of 2009 have produced a few (i)Family Cards issued by the Tamil Nadu Civil Supplies and Consumer Protection Department, (ii) Current Consumption Charges Cards issued by the Tamil Nadu Electricity Board and (iii) receipts for having paid property tax to Pallikaranai Town Panchayat, in support of their case. Notices dated nil issued under Section 5 of the Tamil Nadu Act, 1905, by the Revenue Inspector, Pallikaranai, to two of the petitioners are also enclosed in the typed-set. A representation dated 10.08.2009 made to the District Collector, Kancheepuram by Mahalakshmi Nagar Residents Welfare Association is also enclosed in the typed-set.

6.The petitioners in W.P.No.17233 of 2009 have sought for interim stay of all further proceedings, pursuant to the notification issued by the first respondent, in Tamil Nadu Government Gazette in No.15 dated 18.04.2007. This Court granted interim of stay of dispossession on 21.08.2009 in M.P.No.2 of 2009 in W.P.No.17233 of 2009 for a limited period up to 03.09.2009. On 03.09.2009, the same was extended up to 11.09.2009. On 11.09.2009, it was extended for three more weeks and thereafter, the interim order was not extended.

7.The first petitioner in W.P.No.17233 of 2009 alone filed another writ petition in W.P.No.20469 of 2009 praying for issuance of a writ in the nature of mandamus forbearing the respondents from interfering with the peaceful possession and enjoyment of her land and building in S.Nos.657/3A2 and 657/3A3 in Mettukuppam Village, VPG Avenue, Pallikaranai, Kancheepuram District. The pleadings are same as found in W.P.No.17233 of 2009.

8.The petitioner in W.P.No.20469 of 2009 also sought for interim injunction restraining the respondents from vacating her from her land and building in S.Nos.657/3A2 and 657/3A3. On 09.10.2009, while posting the matter along with W.P.No.17233 of 2009, this Court granted interim injunction till 13.10.2009 and thereafter, the interim order was not extended.

9.The writ petition in W.P.No.21261 of 2009 is filed by Varasakthi Vinayagapuram Kudiyiruppor Common Welfare Association and its 59 members. They prayed for issuance of a mandamus to the Tahsildar, Tambaram, to issue free house site pattas, to all the petitioners, in respect of the lands at S.No.429/2, Vinayagapuram, Pallikaranai, as per G.O.Ms.No.34, Revenue Department, dated 23.01.2008. It is the case of the petitioners that they are residing in the said lands for more than five years and since G.O.Ms.No.34, referred to above, provides for issuance of pattas to persons, who are residing for more than five years in Government Poramboke lands, they are also entitled for the issuance of pattas. They produced the notices issued by the Revenue Inspector, Pallikaranai, under Section 5 of the Tamil Nadu Act 1905. They also produced their voter identity cards, issued by the Election Commission of India and also some photographs.

10.The writ petition in W.P.No.7941 of 2010 is filed by 55 petitioners seeking to quash G.O.Ms.No.52, referred to above. It is the case of the petitioners that they are residing in S.Nos.657/3A2 and 657/3A3 in Mettukuppam Village, VPG Avenue Extension, Tambaram Taluk, Kancheepuram District, for more than thirty years. But none of them had given their residential address. Further they alleged that the lands in which they are residing are sought to be acquired by the Government of Tamil Nadu, Forest Department, in violation of the provisions of the Land Acquisition Act. They relied on G.O.Ms.No.854, Revenue Department, dated 30.12.2006 and G.O.Ms.No.43, Revenue Department, dated 29.01.2010 for issuance of pattas in their favour. They have also filed few family cards, notice issued under Section 5 of the Tamil Nadu Act 1905 to one of the petitioners, by the Revenue Inspector, Pallikaranai and two receipts issued by the Pallikaranai Town Panchayat, for the property tax being paid for the year 2009-2010.

11.Counter affidavit is filed by the Forest Department in W.P.No.17233 of 2009. The Special Tahsildar (Forest Settlement) also filed counter affidavit in W.P.No.17233 of 2009.

12.In W.P.No.21261 of 2009, the District Forest Officer, Kancheepuram District filed counter affidavit for all the respondents. However, the District Collector, Kancheepuram also filed a separate counter affidavit.

13.In W.P.No.7941 of 2010, the District Forest Officer, Kancheepuram District filed counter affidavit for all the respondents.

14.The crux of the counter affidavits filed by the authorities are same. It is stated that the District Collector, Kancheepuram sent a letter dated 10.10.2006 to the District Forest Officer, Chenglepet, recommending for constituting reserved forest of an extent of 320.17 hectares (790.82 acres) at Pallikaranai, Kancheepuram District. Based on the said recommendations, the Government of Tamil Nadu passed an order in G.O.Ms.No.52, Environment and Forest Department, dated 09.04.2007 proposing to constitute reserved forest and a notification in Tamil Nadu Government Gazette dated 18.04.2007 was also issued, as contemplated under Section 4 of the Act. Besides, notification in the Gazette of the District was also made and a Forest Settlement Officer was appointed in the notification. The District Forest Officer, Chenglepet Division, Kancheepuram was appointed as Forest Settlement Officer to attend the enquiry prescribed under Chapter-II of the Act. It is stated that 30 years ago, there were 50 sq.kms of Marsh land at Pallikaranai and now, the same is reduced to 1/10th due to anthropogenic factors. Despite this onslaught, the marsh has continued to support an array of flora and fauna. Keeping in view the ecological role of the wet lands, the southern portion of Pallikaranai Marsh measuring 317 hectares, has been notified under Section 4 of the Act. The details of the survey numbers and the extent of the lands are given in the counter affidavits. It is further stated in the counter affidavits that if at all the petitioners have any grievance, they shall make their claim before the Forest Settlement Officer and he would consider the same and pass an appropriate order. If they are still aggrieved, an appellate forum is provided under the Act. Without resorting to the forums provided under the statute, the petitioners have chosen to file these writ petitions.

15.In the counter affidavits, it is further stated that the International Convention on Wetlands took place in the Iranian City of Ramsar on 02.02.1971 and India is one of the signatories of the Convention. It is, therefore, mandatory to designate wetlands of importance across the country. Pallikaranai Marsh is one of the few and last remaining natural wetlands of South India.

16.In the counter affidavits, the authorities relied on the judgment of the Honourable Supreme Court in T.N.Godavarman Thirumulkpad vS. Union of India [1997 (2) SCC 267] in support of their contention that wider meaning shall be assigned to the word "Forest". They have also referred to the First Bench judgment dated 19.09.2008 of this Court in W.P.No.20918 of 2008 following the judgment of the Honourable Supreme Court in Supreme Court Monitoring Committee vS. Mussoorie Dehradun Development Authority [1997 (11) SCC 605]. It is averred that the Forests shall be protected as contemplated under Section 2 of the Forest (Conservation) Act, 1980. It is further averred that the petitioners have wrongly placed reliance on the Government Orders in G.O.Ms.No.854, G.O.Ms.No.34 and G.O.Ms.No.43 for issuance of pattas and those Government Orders are not applicable for the reserved forest lands. Further, according to the Government Orders relied on, pattas are to be granted in respect of the lands, which are not necessary for the purpose of the Government. Since the Government issued the order in G.O.Ms.No.52, under Section 4 of the Act, pursuant to its intention to constitute reserved forest, the petitioners could not seek pattas. Further, the Honourable Supreme Court in T.N.Godavarman's case (cited supra) has categorically held that no pattas with regard to any forest land shall be granted nor shall any encroachment in forest land be regularised. It is further stated that the Government issued the order in G.O.Ms.No.446, Revenue Department, dated 14.07.2006 cancelling the earlier Government Order granting lands to Pepsi Cinema employees.

17.Heard the submissions made on either side.

18.Considering the importance of the issue, this Court, on 16.08.2011, appointed Mr.T.Mohan, an Advocate, as Amicus Curiae, to render assistance for disposal of these matters. Accordingly, the learned Amicus Curiae made his submissions and produced notes on submissions, along with various materials.

19.I have considered the submissions made on either side and perused the materials available on record.

20.One Ms.Susetha, with an intention to protect the Pallikaranai Marsh, approached this Court, by filing a Public Interest Litigation, in W.P.No.30725 of 2008. The learned Amicus Curiae has produced the counter affidavit filed by the Additional Director, Ministry of Environment and Forests, Regional Office (South Zone), Bangalore, on behalf of the Ministry of Environment and Forests, Government of India. In the said counter affidavit, it was stated that in response to an article on threats to Pallikaranai Wetlands that appeared in the newspaper viz., "The Hindu", a Joint Committee, consisting of six members, was constituted, by the Ministry of Environment and Forests, Government of India, New Delhi. The Joint Committee submitted its report dated 21.10.2003, along with its recommendations, for revival of the wetlands. The recommendations of the said Committee was sent to the Government of Tamil Nadu and the Central Pollution Control Board (CPCB) for necessary action. As per the counter affidavit, the Ministry of Environment and Forests, Government of India, released funds to the Government of Tamil Nadu, for conservation of wetlands. The learned Amicus Curiae produced the report dated 21.10.2003 of the said Joint Committee. The relevant passage from the foreword of the coordinator of the Joint Committee, is extracted hereunder:-

"Attention was drawn towards Pallikaranai wetland by an Article in Hindu dated 20th October, 2003. It was reported that the wetland which once extended to more than 5000 ha. is reduced to mere 500 ha. at present. Even this remaining portion is subjected to serious damage caused by dumping of garbage, discharge of raw sewage and burning of waste every day. People formed a human chain along the Pallikaranai marsh near Velachery to draw attention of the Government towards serious ecological damage caused by various factors to this wetland. The demonstration was supported by 10 welfare organizations under the banner of "Save Pallikaranai Marshland Forum" (SPMF) in which academicians, retired officials, school children, local people and others participated. They wanted the wetland to be declared as a protected area so that burning of waste, dumping of garbage, discharging of raw sewage which is affecting the ground water in several areas could be stopped immediately. Ministry of Environment & Forests was approached for declaring this wetland as a wetland of international importance and also declare it as a wetland under National Wetland Conservation Programme to take up some effective conservation measures."

The introduction given by the Joint Committee, in its report dated 21.10.2003, is also extracted hereunder, since it throws light on the issue involved in these writ petitions:- "Introduction

Pallikaranai marsh is located about 20 km South of Chennai city in the Kancheepuram district, Tamil Nadu and is created by backwaters of the Bay of Bengal. Huge inflow of storm water during the monsoon has made this wetland a unique mix of freshwater and brackish water character. The marsh is bounded on the East by old Mahabalipuram Road, on West by Tambaram  Velachery road, on the North by Velachery Village and on the South by Medavakkam  Karappakkam road.

The total area of the marsh, which originally was about 5000 hectares is now reduced to 743 hectares, which includes the marshes up to Sholinganallur and Perumbakkam villages. Originally, this wetland was a salt marsh, fed by brackish waters. With the construction of Buckingham canal in 1876, the inflow of sea water has virtually been stopped resulting in reduced salinity and converting it into more of a freshwater wetland. The only connection of the marshes to the sea is through Buckingham canal. The marsh is connected to the Buckingham canal by Oggiyam madavu. Clear cut compartmentalization of the wetland is visible at present because of the construction of roads, dumping of garbage, construction of buildings and other anthropogenic activities."

The recommendations made by the Joint Committee, in its report dated 21.10.2003, being relevant are extracted hereunder: "Recommendations of the Team

Considering the present status of the wetland and the threats caused to the ecology due to indiscriminate dumping of garbage and untreated sewage, CPCB should issue directions to the concerned State Government authorities for immediate stoppage of dumping of these wastes.

The area presently under custody of Corporation must be immediately withdrawn from them.

Corporation should find alternate sites for either composting of garbage or landfill as well as for discharge of untreated sewage. The entire area of 743 ha. including the remaining water body must be declared as a sanctuary. Converted land mass should be aforestated.

MOEF requested the State Government on 26th March 2003 to submit a proposal for inclusion of this wetland under the National Wetlands Conservation Programme. A reminder was sent on 19th August, 2003. No action taken by State Government so far.

The State Government should expedite submission of the proposal and also consider taking action to declare this wetland as a Ramsar Site so that it can be protected.

The sewage treatment plants under NRCP project must be constructed on a war footing and completed as early as possible." However, after four years, the Government of Tamil Nadu, thought it to take action to constitute reserved forest, to protect the remaining Marsh lands. It is only 317 hectares of lands. In fact, the Government shall have retrieved the swamp lands, to protect the unique swamp lands, that too available in the midst of the metropolis, pursuant to the aforesaid recommendations of the Joint Committee.

21.Our country is one of the signatories to the Ramsar International Convention on Wetlands. Ramsar is a City in Iran and the Convention took place on 02.02.1971. It is therefore mandatory to designate wetlands of importance across the country. Wetlands are the most important of the life supporting eco-system, that has sustained human lives and communities over the millennium. Pallikaranai Marsh is amongst the few and last remaining natural wetlands of South India. Based on the report of the Joint Committee, referred to above, the Government of Tamil Nadu, Forest Department, Chennai Circle, issued an information sheet on Pallikaranai Marsh Lands, quoting as Ramsar Wetlands. The relevant passages in the information sheet, are extracted hereunder:

"14.Justification for the application of each Criterion listed in 13 above:

This marsh land is considered international important as it contains a representative of rare, or endangered, threatened species. This fresh water marsh land is situated very nearer to the one of the cosmopolitan cities of India (Chennai) amidst of dense population. It acts as a forage and breeding ground for thousands of migratory water birds from various countries every year.

Play a major role in the natural control, amelioration or prevention of flooding.

Seasonal water retention for wetlands.

Mitigating water pollution and acting as natural wastewater and drainage water purification system. The marsh is helpful in charging the aquifers of the region.

Maintaining suitable habitat for wildlife by acting one of the most biologically diverse system.

16.Physical features of the site:

Pallikaranai wetland (N 12 0 55' E 080 0 13') is a natural formation of low lying fresh water marsh adjacent to the Bay of Bengal situated about 20 km south of Chennai city. The entire surplus water from the 31 tanks situated in 3 directions namely North, West and South of the marsh, drains into the marsh and flows through Okkium Maduvu into the Buckingham canal and drains into Bay of Bengal near Muttukkadu creek.

The drainage pattern of marsh and fringe area is highly governed by the tidal level variation in the Buckingham canal and nature of storm surges. The marsh is helpful in charging the aquifers of the region. It is one of the last few natural ecosystems in the city of Chennai.

17.Physical features of the catchment area:

The Pallikaranai marsh has a catchment area of 235 km2 that includes Velachery, Pallikaranai and Navalur. It drains through Okkium Maduvu in Thoraipakkam to the Buckingham Canal, which on the other hand discharges into the Kovalam estuary. A few decades back the marsh extended about 4000  5000 ha (The Hindu, 2006: Care Earth, 2002; Joint Committee Report, 2003). The neglectful and ill conceived hasty construction activities of the past decades, associated with rapid urbanization has largely destroyed Pallikaranai marsh shrinking it to a small fraction of the original size.

Most of the catchment area of Pallikaranai marsh have been occupied by habitats, IT parks, roads, highways, Multi-national companies, Institutions, MRTS, Hospitals etc.

18.Hydrological values:

The redd-covered swamps and several associated smaller waterlogged areas located in the South Chennai help in storing storm water and aiding groundwater recharge. It is reported that more than 500 truck loads of drinking water, obviously an outcome of the recharge of ground water effectuated by the wetland, is collected daily by private operators from the vicinity. This practice is reportedly being still continued. Critical to existence of this wetland is exchange of fresh and saline water facilitated through various channels of the south Chennai and Okkium Maduvu in Thoraipakkam. Several small wetlands, many of which are under the threat of filling, are sustained by fluvial interactions with the Pallikaranai marsh.

23.Social and cultural values:

Pallikaranai marsh is one of the last few remaining natural ecosystems in the city of Chennai.

The surrounding habitats let off the drainage water into the PML. The treated effluent from Perungudi ETP has also let off.

Mitigating water pollution and acting as natural wastewater and drainage water purification system.

The marsh land plays a major role in the natural control, amelioration or prevention of flooding. It acts as a natural recharge of aquifers of the region

It acts as major natural flood plain system

It acts as a forage and breeding ground for thousands of migratory water birds from various countries every year.

During the summer season the local people used this PML for fishing.

A portion of this marsh land has been declared as Reserved Land (317 Ha.) and is under the control of the Forest Department."

Thus, the action taken by the Government of Tamil Nadu would be traced to the Ramsar International Convention. Thus, the notification issued by the Tamil Nadu Government under Section 4 of the Act is protected by the principles enunciated under Article 253 of the Constitution of India. Article 253 of the Constitution of India empowers the Parliament to enact laws even on the State subjects in order to give effect to international convention. Article 253 of the Constitution of India is extracted hereunder:

"253.Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

22.As noted above, 5000 hectares of Marsh lands has shrunk now to 317 hectares. Though the Joint Committee recommended to retrieve 743 hectares and to declare the marsh lands as Sanctuary, by vesting the lands that are with the Corporation of Chennai, the same is yet to take place. Now the Government of Tamil Nadu initiated action to protect only 317 hectares as Forest lands. Even, that is under challenge now. The legislative Scheme of the Tamil Nadu Forest Act, 1882 is very clear. Once the Government declared its intention to constitute Reserved Forest and issued notification under Section 4 of the Act, and a Forest Settlement Officer is appointed, any claim shall be made by the person interested only with the Forest Settlement Officer.

23.In this case, a notification under Section 4 of the Act was issued in the Tamil Nadu Government Gazette on 18.04.2007. The District Forest Officer, Chenglepet Division at Kancheepuram was appointed as Forest Settlement Officer, as per Section 4 of the Act. As per Section 6 of the Act, the Forest Settlement Officer shall publish a proclamation in the gazette of the district and at the Headquarters of the Taluk, in which the concerned land is situated, specifying the lands proposed to be included as reserved forest land and fixing 3 months period for production of documents, by every person claiming any right, referred to under Section 6 of the Act. The Forest Settlement Officer, accordingly, published the proclamation on 01.08.2007, in Kancheepuram District gazette, as contemplated under Section 6 of the Act. In the said proclamation, he made it clear that no one could be issued pattas, for the lands that are proposed to be constituted as Reserved Forest land. He made it clear that interested persons shall make their claim within three months along with their documents in support of their claim, before him. Only after the proclamation was made under Section 6 of the Act, these writ petitions are filed, without approaching the Forest Settlement Officer appointed under Section 4 of the Act. These facts are not disputed.

24.Section 8 of the Act contemplates an enquiry into all claims, by the Forest Settlement Officer. Thereafter, the Forest Settlement Officer is mandated to pass an order specifying the particulars of the claims, admitting or rejecting the same.

25.Section 10(1) of the Act states that if a claim is admitted wholly or in part, the Forest Settlement Officer may (i) come to an agreement with the claimant for surrender of right or (ii) exclude the land from the limits of the proposed forest or (iii) proceed to acquire such land in the manner provided under the Land Acquisition Act. For the purpose of acquiring such lands, the Forest Settlement Officer shall be deemed to be a Collector and could also award compensation under the Land Acquisition Act. If a claim is rejected wholly or in part, the claimant is provided with a right to appeal to the District Collector, within a period of 30 days.

26.Section 16 of the Act contemplates a notification in the official gazette declaring the lands as reserved forest from the date fixed by such notification, after (i) 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 for filing appeals have elapsed and appeal, if any, has been disposed of by the appellate authority and (c) all proceedings under Section 10 have been taken and all lands as vested with the Government pursuant to the proceedings under the Land Acquisition Act, 1870, if the Forest Settlement Officer has elected the acquisition under the Act. Section 16 of the Act also contemplates publication of the notification by the Forest Settlement Officer, before the date fixed, in the manner prescribed for proclamation under Section 6 of the Act.

27.Section 17 of the Act makes it clear that rights in respect of which no claim is preferred under Section 6 shall be extinguished unless the claimant satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the prescribed period.

28.Section 7 of the Act bars accrual of rights between the proclamation made under Section 6 and the time fixed in the notification issued under Section 16. Section 7 also prohibits fresh clearance on such land for cultivation or for any other purpose. This Section also prohibits grant of patta, without the previous sanction of the Board of Revenue or written permission of the Forest Settlement Officer, in the interregnum.

29.Section 18 of the Act is a provision similar to Section 7. But however, the same follows notification issued under Section 16.

30.Section 21 of the Act provides penalties for trespass or damage in reserved forests and acts prohibited in such forests.

31.Section 68-A of the Act states that any person, who has been unauthorisedly occupying any land in reserved forest or in any land at the disposal of the Government, may be summarily evicted by an officer of the Forest Department not below the rank of Forest Ranger. This Section also provides for forfeiture of any building or structure erected on the land in a reserved forest subject to prior notice and consideration of representation, if any.

32.Thus, the Scheme of the Act provides for adequate safeguard for persons having interest in the notified lands under Sections 4 and 6 of the Act, to make claims before the Forest Settlement Officer and thereafter, provides for appeal against the order of the Forest Settlement Officer, if the claim is rejected. The petitioners have misconceived, as if the proceedings were initiated for acquisition of lands, under the Land Acquisition Act and on the other hand, the proceedings were s initiated under Section 4 of the Act and thereafter, a proclamation was issued under Section 6 of the Act. At this juncture, the petitioners came to this Court and nobody made a claim before the Forest Settlement Officer. In view of the pendency of the case, no notification was issued under Section 16 declaring the lands as Forest lands.

33.At this juncture, it is useful to refer to the affidavit of undertaking given by the Joint Secretary to Government of Tamil Nadu, Revenue Department, in W.P.No.19592 of 1998 seeking direction to the authorities to protect the Pallikaranai Swamp, which reads as follows:-

"... However an undertaking to the Hon'ble Court is hereby given to the effect that the Velacherry  Pallikaranai Marsh lands will be protected and no reclamation/construction activities will be allowed to carry out in the Velacherry  Pallikaranai Swamp area."

Recording the said undertaking, a Division Bench of this Court dismissed the writ petition in W.P.No.19592 of 1998 on 15.11.2010 and I am a party to the said order.

34.Furthermore, it is also relevant to take note of the fact that the Honourable Supreme Court in T.N.Godavarman Thirumulkpad vS. Union of India [1997 (2) SCC 267] passed an interim order issuing various directions to the State Governments, including the Government of Tamil Nadu. In the said order, the Supreme Court gave a wide meaning to the word "Forest", taking note of the fact that the word "Forest" is not defined in the Forest (Conservation) Act, 1980. The relevant passage in the said judgment is extracted hereunder: "...... The word forest must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term forest land, occurring in Section 2, will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat, Rural Litigation and Entitlement Kendra v. State of U.P. and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority......"

35.As per the aforesaid judgment, Pallikaranai Marsh Land shall also be understood as Forest land. Once it is understood/declared as forest land, the same is protected under the Forest (Conservation) Act, 1980. It is worthwhile to reproduce hereunder the statement of objects and reasons for the enactment of the Forest (Conservation) Act, 1980, which reads as follows:

"STATEMENT OF OBJECTS AND REASONS.

Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taken place on a large scale in the country and it had caused wide spread concern.

2.With a view to checking further deforestation, the President promulgated on the 25th October, 1980, the Forest (Conservation) Ordinance 1980. The Ordinance made the prior approval of the Central government necessary for dereservation of reserved forests and for use of forest and for non- forest purposes. The Ordinance also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval.

The following Act of Parliament received the assent of the President on the 27th December 1980. Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental there to."

The main object of the Forest (Conservation) Act, 1980 is to prevent deforestation and to check the environmental deterioration. The deforestation causes serious threats to the existence of human being and other living substances.

36.Furthermore, it is also relevant to take note of the statement of objects and reasons for the enactment of the Madras Forest Act, 1882 during the British Raj. This Act was to make provisions for the protection and management of Forests in the State of Tamil Nadu.

37.It is also worthwhile to take note of the objects and reasons of the Tamil Nadu Preservation of Private Forests Act, 1949. This Act was enacted to prevent the indiscriminate destruction of private forests. Forest is defined in Section 2(aa) of this Act and the same is extracted hereunder:

"2.(aa) "Forest" includes waste or communal land containing pasture land and any other class of land declared by the Government to be a forest by notification in the Fort St. George Gazette."

Thus, Forest is given a wider meaning under the Tamil Nadu Preservation of Private Forests Act, 1949.

38.In my view, the judgment dated 19.09.2008 of the First Bench of this Court in W.P.No.20918 of 2008 squarely covers the issues involved in these writ petitions. In the said case, notification under Section 4 of the Tamil Nadu Forest Act, 1882 was issued to constitute reserved forest. But those lands were sought to be used for construction of houses under Samathuvapuram Scheme. Though notification under Section 16 was not issued ultimately constituting the reserved forest, the First Bench of this Court, following the judgment of the Honourable Supreme Court in Supreme Court Monitoring Committee vS. Mussoorie Dehradun Development Authority [1997 (11) SCC 605] has held that the Government shall not proceed with the construction activities for the purpose of Samathuvapuram Scheme, in the lands notified under Section 4 of the Tamil Nadu Forest Act, 1882.

39.In the judgment dated 10.02.2011 in W.A.Nos.2026 of 2010 and 197 to 201 of 2011, the First Bench of this Court upheld the notification issued under Section 16 of the Tamil Nadu Forest Act, 1882 and refused to interfere with the notification, when some persons failed to make their claims before the Forest Settlement Officer, as provided under the Tamil Nadu Forest Act and questioned the notification under Section 16 of the Act before this Court.

40.In view of the aforesaid decisions and also taking into account the various historical facts relating to Pallikaranai Marsh, I am of the view that the writ petitions in W.P.Nos.17233 of 2009 and 7941 of 2010 seeking to quash the Government Order in G.O.Ms.No.52, Environment and Forest Department, dated 09.04.2007, issued under Section 4 of the Tamil Nadu Forest Act, shall fail.

41.Furthermore, none of the petitioners in W.P.Nos.17233 of 2009 and 7941 of 2010, had given their residential address. While S.No.657/3A2 is the land belongs to Corporation of Chennai, Corporation of Chennai is not made as a party to the writ petition. A few family cards issued by the Civil Supplies and Consumer Protection Department, current consumption charges cards issued by the Tamil Nadu Electricity Board and the property tax receipts, would not confer any right to the petitioners, to seek relief as prayed for in the writ petitions. There is no particulars as to the date of issuance of the family cards. The family cards are for the period 2005-2009 and the current consumption charges cards are also relating to the period after 2005 and the property tax receipts are for the period 2008-2009 and 2009-2010. Thus, there is no material in support of the contentions made in W.P.Nos.17233 of 2009 and 7941 of 2010 that the petitioners are residing in the notified lands for 30 years.

42.In W.P.No.17233 of 2009, only one notice was issued to one of the petitioners, by the Revenue Inspector of Pallikaranai Taluk, under Section 5 of the Tamil Nadu Act 1905 and the notice does not bear the date. Furthermore, the notice pertains to the land in S.No.657/3A1 at Pallikaranai. But the case of the petitioners is that they reside at S.No.657/3A2 and 657/3A3. Likewise, the notice issued to one of the petitioners in W.P.No.7941 of 2010, by the Revenue Inspector of Pallikaranai Taluk, relates to S.No.657. Even as per the said notice, the land is classified as "Meichal Poramboke". The Government has made it clear that pattas could not be issued in respect of lands that are classified as "Meichal Poramboke" and "Waterbodies" etc.

43.Likewise, in W.P.No.21261 of 2009, the voter identity cards produced by the petitioners were issued by the Election Commission of India, during the year 2004-2006 and the period earlier thereto. Those voter identity cards disclose that the petitioners did not reside during the said period in Pallikaranai and they resided at a totally different place, which is far off and not connected with Pallikaranai at all. The photographs produced by them also make it clear that huts are put up in the midst of Marsh lands. The notices issued to the petitioners under Section 5 of the Tamil Nadu Act, 1905 are relating to the lands in S.No.429/2, Pallikaranai, which is covered under the notification issued under Sections 4 and 6 of the Tamil Nadu Forest Act, 1882.

44.The reliance placed on by the petitioners on G.O.Ms.No.854, Revenue Department, dated 30.12.2006, G.O.Ms.No.34, Revenue Department, dated 23.01.2008 and G.O.Ms.No.43, Revenue Department, dated 29.01.2010 to seek issuance of pattas is of no use. I have perused those Government Orders. Those Government Orders make it clear that pattas could be issued only in respect of the Government Poramboke lands, which are not necessary for the purpose of Government. Here, the Government has a definite purpose of reserving the lands as forest lands and also issued notification under Section 4 of the Act. Hence, the petitioners could not seek grant of pattas in respect of those lands.

45.In these circumstances, I am of the view that the writ petitioners are not entitled for any relief, which they ask for. However, I am inclined to provide an opportunity to the petitioners, to make their claims, if any, before the Forest Settlement Officer notified under Section 4 of the Tamil Nadu Forest Act, 1882, within a period of three months from today. On receipt of such claims, the Forest Settlement Officer concerned is directed to consider the same and pass appropriate orders thereon, in accordance with law, within two months thereafter. The Forest Settlement Officer, the concerned authorities and the Environment and Forest Department of the Tamil Nadu Government are directed to proceed further in accordance with law.

46.The writ petitions are dismissed with the aforesaid observations and directions. No costs. Consequently, connected miscellaneous petitions are closed.

47.I record my appreciation for the able assistance rendered by Mr.T.Mohan, the learned Amicus Curiae.

07 / 03 / 2012

Index : Yes

Internet : Yes

Note : Issue order copy on 08/03/2012

TK

To

1. THE SECRETARY TO GOVERNMENT

GOVERNMENT OF TAMIL NADU

ENVIRONMENT AND FOREST DEPARTMENT

FORT ST. GEORGE, CHENNAI - 9.

2. the SECRETARY TO GOVERNMENT

government of tamil nadu

REVENUE DEPARTMENT

FORT ST.GEORGE, CHENNAI - 9.

3. THE DISTRICT COLLECTOR

KANCHEEPURAM AND DT.

4. THE TAHSILDAR (LAND ACQUISITION)

TAMBARAM TALUK, Tambaram,

KANCHEEPURAM DT.

5. THE SPECIAL TAHSILDAR

(FOREST SETTLEMENT)

TIRUVALLUR, TIRUVALLUR DISTRICT.

6. THE VILLAGE ADMINISTRATIVE OFFICER

PALLIKARANAI VILLAGE,

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM DISTRICT.

7. THE INSPECTOR OF POLICE

PALLIKARANAI POLICE STATION

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM DISTRICT.

8. THE SPECIAL COMMISSIONER

COMMISSIONER OF LAND ADMINISTRATION

CHENNAI - 5.

9. THE DISTRICT REVENUE OFFICER

PALLIKKARANAI FIRKA,

KANCHEEPURAM.

10. THE TAHILSIDAR

TAMBARAM.

11. THE EXECUTIVE OFFICER

TOWN PANCHAYAT

PALLIKKARANAI,

CHENNAI 100.

12. THE DISTRICT FOREST OFFICER

DEPARTMENT OF FOREST

PALLIKKARANAI,

KANCHIPURAM DISTRICT.

13. THE DISTRICT FOREST OFFICER

KANCHEEPURAM dISTRICT,

KANCHEEPURAM

14. THE FOREST RANGER

FOREST OFFICE,

TAMBARAM, CHENNAI  45.

15. THE INSPECTOR OF POLICE

OKKIAM THORAPAKKAM POLICE STATION

METTUKUPPAM, TAMBARAM TALUK,

KANCHEEPURAM dISTRICT.

D.HARIPARANTHAMAN, J.

TK

PRE-DELIVERY COMMON ORDER MADE IN

W.P.NOS.17233, 20469 AND 21261 OF 2009

AND 7941 OF 2010