IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.08.2007 CORAM THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.Nos.22501, 23286, 23334, 23694, 24028, 24195, 24196, 25328, 25332, 25472, 25511, 25512, 25513, 25514, 25578, 25892,25592, 25985, 25987, 26289 26516 of 2007 and M.P.Nos.1 and 2 in W.P.Nos.22501 and 23286 of 2007 and M.P.No.1 of 2007 in W.P.Nos.23694, 24028, 24195, 24196, 25328, 25332, 25511, 25512, 25513, 25514, 25578, 25892, 25592, 25987, 26289 and 26516 of 2007 W.P.No.22501 of 2007 Gudalur and Pandalur Farmers Association rep. By its Secretary Mr.Jacob John (Regd.No.172/2006) .. Petitioner -vs- 1. The State of Tamil Nadu rep. By its Secretary to Govt., Revenue Department, Fort St. George, Chennai 600 009. 2. The Collector, Nilgiris District, Collectorate, Udhagamandalam, Nilgiris. 3. The Settlement Officer (Gudalur Jenmom Estates) The Collectorate of the Nilgiris, Udhagamandalam, Nilgiris Distrit 4. The Secretary to Government Forest Department (impleaded as per suo motu order dt.2.8.07 in W.P.22501/07) ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to forbear the respondents, their subordinates and servants from interfering in any manner with the possession and enjoyment of the lands of the members of the Petitioner Association, till the disposal of the applications made by the Member, as per annexure of the Petitioner Association pursuant to the orders of the Hon’ble Supreme Court dated 18.08.1999 made in Civil Appeal Nos.368-372, and 374-375 of 1977 and I.A.No.24-32 in C.A.Nos.367-375 of 1977 and without giving an opportunity to the members of the Petitioner Association.
For Petitioners : Mr.Muthukumaraswamy,
Senior Advocate for
M/s T.S.Gopalan & Co.
Mrs.Nalini Chidambaram, Sr.Advocate
Mr.Silambannan, Sr.Advocate for
M/s Silambannan Associates
Mr.K.A.Radhakrishnan,
Mr.T.P.Manoharan
Mr.A.Prabhakar
For respondents : Mr.P.S.Raman, Addl.Advocate General
assisted by Mr.A.Edwin Prabhakar,AGP for State Government
and assisted by Mr.S.N.Kirubanandam,SGP
for Forest department.
C O M M O N O R D E R
An association by name Gudalur and Pandalur Farmers Association represented by its Secretary and individual lessees of the Estate concerned have filed these writ petitions praying for a mandamus seeking to direct the respondents from interfering in any manner with the possession and enjoyment of the lands of the petitioners till the disposal of the applications of the petitioners pursuant to the orders of the Hon’ble Supreme Court dated 18.08.1999 made in Civil Appeal Nos.368-372 and 374-375 of 1977 and I.A.No.24-32 in C.A.Nos.367-375 of 1977 and without giving an opportunity to the petitioners.
2. All the petitioners have a common grievance and the facts and circumstances set out by them are also common. The relief sought for by the petitioners are identical. Therefore, all the petitions have been taken up and a common order is passed.
3. The brief facts leading to these cases are as follows:- The petitioners are the farmers engaged in cultivation of land in the properties as set out in the annexure of the respective writ petitions. Their parents had purchased the properties through various sale deeds and the extend of lands have been indicated in every petition. All kinds of agricultural crops including tea, coffee, cardamon, pepper, ginger etc. are grown in the said lands. The lands are used for agricultural purposes and there are dwelling houses in the said properties. Most of them are medium farmers doing the cultivation and they are in continuous possession of lands and have access also. The Government is responsible for the enforcement and implementation of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (hereinafter referred to as “The Janmam Act”) and the Secretary of the Revenue Department is the authority to control and enforce the lands. The third respondent is the officer appointed by the Government under section 5 of the Janmam Act to carry out the functions assigned to him under the Act. His main function is to consider the applications for the grant of ryotwari patta under the Act. Some of the petitioners have also made an application and some of them are yet to make applications. The Director of Survey and Settlement is an authority who guides and assess the work of the settlement officer and directs action that is to to be taken by the authorities in respect of the petitioners lands. Earlier in some writ petitions, the provisions of the Act was challenged in the year 1970. This Court, in its common Judgment in W.P.Nos.64, 117 to 121, 185, 186 and 200 of 1970 dated 26.10.1970 dismissed the writ petitions upholding the validity of the said Act. Aggrieved by the said order passed by this Court, certain petitioners have filed Civil Appeals and the Hon’ble Supreme Court in a common Judgment on 19.04.1972 also upheld the validity of the said Act except the provisions of Section 3 in so far as it vested forest land in the Janmam Estate in the State of Tamil Nadu. In 1974, a Constitution Amendment Act was passed and the said Act was inserted in the IX schedule of the Constitution of India by the 34th Constitution Amendment Act. Thereafter the said Act was brought into force with effect from 27.11.1974 and the entire Janmam Estate vested with the State of Tamil Nadu. The said Act was again challenged in this Court by the Janmies and lessees in W.P.Nos.4836/74. 2307/75, 4769 to 4774/75, 693/75 and 90 of 1975. All the writ petitions were disposed of by a common Judgment dated 26.09.1976. While settlement proceedings were under process, 11 major estates to whom lands were leased out by the Janmies for raising plantation crops by means of long term lease deeds took up the matter before the Hon’ble Supreme Court in 1976 and 1977 against implementation of the said Act. The Hon’ble Supreme Court in its interim Judgment in CMP Nos.1229 to 1237 of 1977 in C.A.Nos.367 to 375 of 1977 dated 23.08.1978 had ordered interim stay with certain conditions. The said stay was in force till 1999. In which 9 out of 11 major estates sought to withdraw their petitions from the Hon’ble Supreme Court and finally the Hon’ble Supreme Court allowed the withdrawal and in its order in Writ Petition (C) No.199 of 1998 dated 18.08.1999 and C.A.Nos.367 & 373 of 1977 dated 07.09.1999 disposed of the Civil Appeals stating that on an application by the counsel for the appellants, the Civil Appeals were dismissed. It is also further held that the applicants shall be entitled to challenge by appropriate proceedings an order passed by the State Government against them either on their application under section 9 or under section 17 of the said Act that such an order shall not be executed against them for a period of twelve weeks to enable them to challenge the same.
4. After the order passed by the Hon’ble Supreme Court, these petitioners made applications and some of them have taken steps to get the order enforced. However, the petitioners steps to get the ryotwari patta under Section 9 and in some cases under section 17 of the Act are under consideration. When that being the position, the respondents have put up a notice board in respect of all petitioners and issued notices to some of the petitioners threatening to evict them from their respective lands and therefore the petitioners have moved these petitions before this Court seeking the relief as stated supra.
5. The respondents have filed a common counter in all these petitions. The counter of the respondents has traced the history of the Janmam lands. It is submitted in the counter that with a view to bring Janmam lands under Ryotwari tenure like other similar Ryotwari lands, the Government took a policy decision and enacted the Tamil Nadu Gudalur Janmak Estates (Abolition and Conversion into Ryotwari) Act, 1969 and accordingly all these 80,088 acres of lands were brought under the control of the Government. The said Act came into force on 27.11.1974 vide notification published in G.O.Ms.No.587, C.T.& R.E. Department dated 18.11.1974. An Assistant Settlement Officer was appointed under the said Act and statutory enquiry was taken up and Settlement process was completed under various sections of the said Act for an extent of 28,087.03 acres. Remaining 52,000 acres of lands fall under section 17 of the said Act. The Janmies created lease in the Janmam Lands before the appointed day that is 27.11.1974 for the purpose of cultivation of plantation crops. The period of lease was 12,24,36, 48 and 96 years, as the case may be, as mentioned in the lease deed. The Janmi has also been collecting lease amount ranging from 25 paise to 10 rupees per acre per year and imposed certain conditions while creating lease deeds. There were 11 major and 82 smaller estates having land on lease falling under section 17 of the said Act and 143 lease documents were executed and some of the lessees had more than one plantation lease document. Further, the respondents submitted that the said Act was challenged in the year 1970 by way of writ petitions, which were dismissed upholding the validity of the said Act. Certain aggrieved persons filed Civil Appeals against the said order before the Hon’ble Supreme Court, which were also dismissed. Thereafter an amendment was brought. Again the said Act was challenged before this Court which were disposed of by a common Judgment. 11 Major estates to whom lands were leased out by the Janmies for raising plantation crops by means of long term lease deeds took the matter before the Hon’ble Supreme Court, in which an interim order of stay was granted. At that stage, some of the major estates sought to withdraw their petitions, which was permitted and finally the Hon’ble Supreme Court has dismissed all the Civil Appeals and the applicants before the Supreme Court has been directed to challenge the appropriate proceedings an order passed by the State Government against them either on their application under section 9 or under section 17 of the said Act and the Hon’ble Supreme Court also vacated the interim order granted earlier. Only in respect of the three lessees, the five members bench of the Hon’ble Supreme Court referred the matter for the decision of the bench consisting of three judges of the Hon’ble Supreme Court to decide the question of constitutional validity of the inclusion of the said Act in the IX schedule of the Constitution of India. Now there is no legal impediment to enforce the said Act in respect of the nine petitioners as well as others, except in respect of the three petitioners therein. The stay granted by the Hon’ble Supreme Court in 1978 still holds good in respect of three petitioners therein. The extent of 52,000.71 acres of land falling under section 17 of the said Act which is unsettled are held by 11 major estates and 82 small estates. The stay granted by the Hon’ble Supreme Court on 23.08.1978 was vacated only in 1999 after the period of 21 years. One of the conditions stipulated by the Hon’ble Supreme Court in its interim stay order is that the petitioner also undertakes not to alienate any part of the properties involved in the writ petition, whether by way of sale, mortgage or otherwise till the disposal of the writ petition. Therefore, 11 major estates also extended their developed area in violation of the Hon’ble Supreme Court order. There were several transactions in the land holdings of the estates. As per the directions of the Hon’ble Supreme Court, the Settlement Officer was appointed in the cadre of District Revenue Officer exclusively for settlement work. Enquiry and survey work is under way in respect of the 9 major estates covered by the Hon’ble Supreme Court order. However, the lease has expired in 79 estates and in three cases lease executed by the erstwhile Janmies is in currency. About an extent of 7857.12 acres of land is held by these 79 small estates in various villages under section 17 of the said Act with the lease hold rights created for the purpose of plantation of the erstwhile Janmi and subsisting on the appointed day that is 27.11.1974. In the counter it is further submitted that 79 small estates did not obtain required permission under the Private Forests Act. Further, as per the Forest (Conservation) Act, 1980 (Central Act 69 of 1980), prior approval of the Central Government is necessary for diversion of forest area for non-foresting purpose such as clear felling of forest area for raising plantation like coffee, Tea, Cardamom, etc. But the above estates have also violated the provisions of the said Central Act. The Forest land comes under the purview of Section 9 of the Act. The Ryotwari patta for the settlement has to be taken into account on the application made by the petitioners concerned. Therefore, there were Ryotwari Settlement was introduced in the Janmam Lands under section 8,9 and 10 of the said Act. Under section 8 of the said Act, the Janmis were entitled to ryotwari patta and the tenants were entitled to ryotwari patta under section 9 of the said Act and under section 10 of the said Act, personal cultivators of the Janmam lands who cultivated such lands for a continuous period of three agricultural years immediately before the 1st day of June 1969. Besides this section, section 17 of the said Act is dealing with the cultivation of plantation crops. Interim compensation has been deposited in Tribunal Court that is in District Court, Udhagamandalam and final compensation will be arrived at after a decision is taken by the Government for the extent of the property for settlement of lands under section 9 of the Act by giving patta to various persons.
6. In such circumstances, now the only option left to the petitioners is that they can approach the authorities under section 9 or under section 17 as the case may be and those who are eligible for patta under section 9 of the said Act, the competent officer has to consider the case of the petitioners and has to issue patta. So the question of patta to be issued under section 9 of the said Act does not arise unless there is an application before the authorities concerned. Further section 9 of the Act provides that every tenant be entitled to ryotwari patta in respect of lands in occupation on and from the appointed day. Therefore the direction sought for by the petitioners in furtherance of the order of the Hon’ble Supreme Court is not applied to these 194 members filed by the association concerned and in respect of forest area, it is only the competent officer of the forest department can decide and hence it was decided by the District Administration that in respect of small estates whose leases already expired, the lands held by them which fall under section 17 of the said Act have to be resumed and handed over to Panchayats concerned, in ‘as is where is’ condition for future maintenance and control. Therefore, notice boards to the effect that the properties belongs to Government and that the Trespassers in such properties will be prosecuted have be displayed in the conspicuous place. Accordingly, the work of erecting notice boards in the lands held by the estate concerned commenced. But no eviction has been carried out in the estate concerned. Therefore, as on date, there is no eviction proceedings. Unless the interim order is vacated, the respondent Government would be put to irreparable loss and hardship. Therefore, the respondents prayed for dismissal of writ petitions.
7. Heard Mr.R.Muthukumaraswamy, Senior Counsel, Mrs.Nalini Chidambaram, Senior Counsel, Mr.Silambannan, Senior Counsel, Mr.K.A.Ramakrishnan, Mrs.Selvi George, Mr.T.P.Manoharan, Mr.A.Prabhakar and Mr.John Zachariah, counsel appearing for the petitioners and Mr.P.S.Raman, learned Additional Advocate General assisted by Mr.A.Edwin Prabakar, Additional Government Pleader and Mr.S.N.Kirubanandam, Special Government Pleader appearing for respondents and Forest Department.
8. Admittedly, the lands in question were controlled by an enactment and the provisions of the enactment have been challenged before this Court and the Hon’ble Supreme Court. The Hon’ble Supreme Court in finality after permitting the applicants before the Hon’ble Supreme Court for withdrawal of the applications, directed the applicants to place appropriate applications before the competent authorities in respect of their claim for grant of ryotwari patta. The learned senior counsel appearing for the petitioners have contended that after the order of the Hon’ble Supreme Court, the petitioners have made applications before the Settlement Officer of the respective jurisdiction and the Settlement Officer concerned has to pass orders on consideration of the case of the petitioners after conducting proper enquiry and personal hearing. According to them, the Settlement officer has not taken effort to pass appropriate orders. On the other hand, now the respondents have proceeded in putting up the notice board in the respective areas and not to trespass as they claim right over the properties. The learned counsel further contended that the action of the respondents is now contrary to the order of the Hon’ble Supreme Court. Therefore, before deciding the petitioners claim for settlement of ryotwari patta, under section 9 or under section 17 of the Act, the competent authority cannot give any room to the local panchayat to initiate action or put up any notice board.
9. On the other hand, the learned additional Advocate General appearing for the Government has traced the history of the Janmam lands and the various proceedings taken by the petitioners before this court as well as before the Hon’ble Supreme Court and the various orders passed by this Court as well as the Hon’ble Supreme Court. The learned Additional Advocate General has strenuously contended that the lands in question are of two categories. One comes under Section 9 of the Act and the other one comes under section 17 of the Act, which are under the purview of the Secretary to Government, Forest Department, where under proper notification only the petitioners can claim any right over the property and the lands which come under the purview under section 9 of the Act, the petitioners can make a proper application as per the rules prescribed and the competent authority may be directed to consider their cases in accordance with law.
10. I have given careful consideration on the submission made by the learned counsel on either side.
11. Admittedly, the issue challenged in all these writ petitions and the finality of the orders of the Hon’ble Supreme Court are not in dispute. All the petitioners have agreed to adhere to the directions of the Hon’ble Supreme Court to make an application to the competent authority, i.e., Settlement Officer as per the rules of the Act. But some of them have already made applications to the competent officer and some of them have to make applications, which are subject to acceptance of the competent authority. Hence, after hearing the arguments of the learned counsel on either side and their fair submissions, I feel it appropriate to direct all those petitioners who have not made any application before the competent officer to make proper applications in the prescribed format as per rules within a period of six weeks from the date of receipt of a copy of this order and to direct the respondents to consider those applications which have been already received along with fresh applications subject to verification.
12. Accordingly, all those petitioners who have not made any application before the competent officer are directed to make proper applications in the prescribed format as per rules within a period of six weeks from the date of receipt of a copy of this order and on receipt of such applications, the respondents are directed to consider those applications, which were already pending and those applications received afresh, in the light of the orders passed by the Hon’ble Supreme Court and in accordance with Section 9 or under section 17 of the said Act after affording opportunity to the parties concerned and pass appropriate orders within a period of six weeks thereafter. Till such time, the respondents shall not take any coercive action against the petitioners.
13. The writ petitions are disposed of on the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
rg