Mohammed Hanifa vs The District Forest Officer, Madurai South

Sivasubramaniam, J.—This C.M.S.A. is directed against the judgment in C.M.A. 231 of 1979 on the file of the First Additional District Judge, Madurai. The facts leading to the filing this appeal are as follows�The Government of Tamil Nadu, in their notification No. II(2)/FRE.1/3060/77 issued under S.4 of the Tamil Nadu Forest Act, and published in Tamil Nadu Government Gazette dated 31-8-1977 and in the District Gazette on 8-1-1978, have declared their intention to constitute Sirumalai West forest block as a Reserve forest. Under the proclamation issued under S.6 of the Forest Act, and published in Madurai District Gazette on 8-4-1977, claims over the land or any forest produce thereof were called for. In pursuance of the said notification, the appellant claimed six acres of land comprised in survey No. 580/1 in Sirumalai village contending that the said land is in his enjoyment for the past 55 years, and that he has paid B memo charges. He further claimed that he has got patta and B memos to prove the said claim.

The District Forest Officer, Madurai South Division, resisted the application contending that the land claimed by the appellant is a forest and the appellant has no right to the same.

The forest Settlement Officer rejected the claim of the appellant. As against the said order, he filed the appeal, in C.M.A. 231 of 1979. In the appeal, he filed certain additional documents which were received in evidence and market as Ex.A1 to A4. The learned District Judge, after considering the documentary evidence produced by the appellant, came to the conclusion that there is no correlation register to show that the lands mentioned in these documents referred to 6 acres of land comprised in survey No. 580/1 now claimed by him. It was further held, that since the appellant''s claim for ryotwari patta for an extent of four acres comprised in S. No. 580/1 and 3.77 acres in S. No. 608/2, Sirumalai village was rejected finally by the Board of Revenue, the appellant is not entitled to any right in those lands. Consequently, he dismissed the appeal. Aggrieved against this, the present second appeal is filed.

Mr. Sundaravaradan, learned counsel for the appellant, contends that the Forest, Settlement Officer and the lower appellate Court have committed an error in rejecting the claims, solely on the basis that the appellant''s claim for patta has been rejected by the Board of Revenue. According to him, the words ''the land at the disposal of the Government'' mean that the Government must be the owner of the land and must be in possession of the land at the relevant point of time. He relies upon the definition to the words ''land at the disposal of the Government'' found in S.2 of the Forest Act. According to him, the procedure has been prescribed under the Rules framed under the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948. He relies on R.6, which reads as follows�

On the expiry of the period mentioned in the order passed under R.5(b) or if an appeal or revision has been filed after the disposal of such appeal or revision, a duly authorised officer who shall not be lower in rank than a firka Revenue Inspector, may formally enter upon the land in question and take possession of the land and records a certificate of the village officers and at least of one ryot of the village that the land has been taken possession of by Government.

It is followed by Rr. 7 and 8 which provide for assignment and appeal to the Managers. Relying on these provisions, learned counsel for the appellant submits that as long as possession is not taken as per the provisions contained in these provisions, it cannot be said that the lands are at the disposal of the Government According to him unless the lands are at the disposal of the Government the Government has no jurisdiction to notify these lands under the Forest Act. He also relies upon the decision in State of Madras v. Umayal Achi 1960 2 M.L.J.S.N. 62, and submits that the provisions contained under the Encroachment Act are not applicable to the lands under the purview of Act 26 of 1948.

Mr. Dhakshinamurthi, learned counsel for the Government-respondent, submitted that the appellant had claimed only four acres in S. No. 580/1 during the patta proceedings. On the order hand, he produced patta only to the extent of Ac. 2-96. According to learned counsel for Government, the appellant, having failed before all the statutory authorities, is not entitled to resist the present notification under the Forest Act It is no longer open to him, the claim any rights so as to enable him to contend that the Government cannot take over the land as forest land.

It is unnecessary to go into the various contentions, raised by learned counsel for the appellant, at this stage, since, the matter has been concluded by a decision of this Court in Sangili Thevar (deed) v. District Forest Settlement Officer, Dindigul C.R.P. 348 of 1983, wherein the learned Chief Justice held as follows:� "While challenging the order, the contention raised is that notwithstanding the earlier rejection of the claim for a ryotwari patta it is even now open to the claimants-petitioners to urge that the land belongs to them and that since they are the owners, the land could not be classified as forest land. There is no substance in this contention. It is an admitted position that the demand for ryotwari patta has been rejected as originally made by the original claimant. In so far as Act 26 of 1948 is concerned, the second provision of S.19 clearly provides that a person who has been admitted into possession of any ryoti land on or after the 1st day of July 1945, shall be entitled to no rights in respect of such lands except where the Government otherwise direct". "As a consequence of Act 26 of 1948 the lands in the estate on which Act 26 of 1948 operated, vested in the State. The ryotwari patta claim having been earlier rejected, the owner of the property in question must be deemed to be the State. Consequently, it is obvious that the present claimants can have no rights in respect of the land in question much less on the footing that they are the owners of the property. Their claim to have these lands deleted from the records with regard to the forest land was, in my view, clearly misconceived."

As the above decision came to be rendered on identical points, I am bound by the same Mr. Sundaravaradan, learned counsel for the appellants, further submitted that in spite of the fact, that the statutory authorities have rejected the appellant''s claim for patta, still it is open to him to establish the rights under the civil court and the jurisdiction of the civil court is not taken away by the provisions contained in Act 26 of 1948. In support of hi contention, he relies upon the decision in State of Tamil Nadu v. Ramalinga (1985) L.W. 849= AIR 1989 S.C. 794, wherein the Supreme Court held that even though S.64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act, sub-S. (2) thereof provides that no such orders shall be called in question in any court of law. Such a provision itself is not decisive on the point of ouster of the civil court''s jurisdiction and several other aspects like the scheme of the Act, adequacy and sufficiency of remedies provided by it, etc, will have to be considered to ascertain the precise intendment of the Legislature. On the basis of these observations, learned counsel for appellant, submits that even now it is open to the appellant to file a suit and establish his rights. It is unnecessary for me to go into the merits of the case at this stage. It is made clear that it is open to the appellants to establish his right in a civil Court if so advised and if it is permissible under law. Without prejudice to his rights to do so, this appeal is dismissed. However, there will be no order as to costs.

Learned counsel for the appellant submits that as the appellant has to file a suit against the Government a statutory notice will have to be given and meanwhile his possession should not be disturbed. The learned counsel for the Government submits that the appellant is not in actual possession. Considering these contentions, the appellant will have four months time from today, to file the suit. Until then, the Government is directed not to disturb his possession, if he is in actual possession now.