| SooperKanoon Citation | sooperkanoon.com/904945 |
| Subject | Letters Patent |
| Court | Chennai High Court |
| Decided On | Jul-28-2010 |
| Case Number | Writ Appeal No.1361 of 2001 |
| Judge | R.BANUMATHI; B.RAJENDRAN, JJ. |
| Acts | Letters Patent - Clause 15 |
| Appellant | The Government of Tamil Nadu, and ors. |
| Respondent | Tata Tea Limited, and anr. |
| Appellant Advocate | Mr.K.Rajasekar, Adv. |
| Respondent Advocate | Mr.A.L.Somayaji, Adv. |
2. The brief facts are that the 1st Respondent Company is having Pachaimallai, Pannimade, Uralikal, Velonie and Valparai estates situated in the Anamallais hills in Valparai taluk, Coimbatore District. All these estates of the 1st Respondent except Valparai estate have also their respective tea factories for processing the tea leaf harvested from the estates and the Valparai estate has a coffee pulping factory. The plantations of tea and coffee crops first started in Anamallais hills village in the then Pollachi taluk (now Valparai taluk), Coimbatore District from 1900 onwards. The extent of tea area in Annamallais comes to 1574.64 hectares and while the extent of coffee and cardamom areas in the said Valparai estates comes to 661.12 hectares and 187.56 hectares respectively. According to 1st Respondent, for administrative convenience, the 1st Respondent's plantations are grouped into 5 estates subject to change or regrouping from time to time as required. The 1st Respondent is carrying on an integrated and inter dependent activity of growing and manufacturing of tea in its tea plantations and also growing and processing of coffee and cardamom in its Valparai estates.
3. The case of the 1st Respondent is that in their estate in Annamallais they are producing 5.3 million kilograms of tea annually and for this the 1st Respondent needs continuous and steady supply of fire wood mainly for the manufacture of tea in its tea estates. Further case of 1st Respondent is that it requires an aggregate of 21200 cubic metres of firewood apart from the firewood required for the supply to workers for domestic use. The yield from a hectare of plantation would be around 300 cubit metres of firewood and the extent of total fuel plantation raised by the 1st Respondent is 471 hectares. According to 1st Respondent, it is hardly sufficient to meet the firewood requirements of the 1st Respondent. Further case of 1st Respondent is that by using Eucalyptus firewood a self generated source of energy, the 1st Respondent is avoiding use of furnace oil and thereby saving large amount of foreign exchange. Under Tamilnadu Hill Areas (Preservation of Trees) Act, 1955, no person shall, without previous permission in writing, cut or cause to be cut uprooting any tree. The 1st Respondent has filed the Writ Petition changeling the vires of Tamil Nadu Hill Areas (Preservation of Trees) Act.
4. Further grievance of 1st Respondent is that it is experiencing inordinate delay in getting permission from the Government. The 1st Respondent has further averred that from the years 1982 to 1992, the 1st Respondent applied for felling of Eucalyptus trees from a total extent of 276.40 hectares and permission was granted only for 225.38 hectares and there is a delay in felling of trees in view of the delay in granting sanction. Challenging the validity of the provisions of Tamil Nadu Hill Areas (Preservation of Trees) Act and seeking for a declaration that Tamil Nadu Hill Areas (preservation of Trees) Act and the Rules made therein will not apply to fuel trees cultivated by the 1st Respondent in their own plantation and intended for the purpose of utilisation as fuel in the manufacture of tea, the 1st Respondent has filed the Writ Petition.
5. The Government resisted the Writ Petition contending that the Government has extended the jurisdiction of Tamil Nadu Hill Areas (Preservation of Trees) Act to Valparai. According to the Appellants, the said Act cannot be said to be prohibitive, but only intended to provide for the regulation of the cutting of trees and the cultivation of land in hill areas in the State of Tamil Nadu and to prevent indiscriminate felling of trees in the hill station in the State of Tamil Nadu involving large-scale deforestation resulting in considerable soil erosion. Referring to the objects of the Act, in the counter affidavit, Appellants averred that the Tamil Nadu Hill Areas (Preservation of Trees) Act has been enacted to regulate cutting of trees and cultivation of land in hill areas. The Appellants denied any delay in granting sanction and according to the Appellants, as per the instructions issued in Government Order, the 1st Respondent's applications were disposed of and necessary orders are issued for felling trees under usual terms and conditions.
6. The learned single Judge allowed the Writ Petition declaring that the 1st Respondent need not obtain any permit, consent or licence from the State Government or any of its authorities for felling/transporting or using as fuel trees grown by them in their own estate/plantations intended to be used as fuel in the manufacture of tea. The learned single Judge further held that in view of obtaining permit/consent for felling of trees the 1st Respondent is experiencing inordinate delay and the delay causes heavy financial loss to the 1st Respondent. The learned single Judge took the view that when the 1st Respondent has a fuel requirement in the manufacture of tea, they have to be issued specific order and any delay would cause serious prejudice to them. The learned single Judge upheld the provisions of Tamil Nadu Hill Areas (Preservation of Trees) Act.
7. Challenging the said order, the learned counsel for the appellants submitted that the object of the Act is to prevent deforestation and soil erosion and the provisions of the Act are only regulatory. Taking us through the provisions of Tamil Nadu Hill Areas (Preservation of Trees) Act, the learned counsel for Appellants submitted that even though the subject land has been declared as a private land, as per the provisions of Preservation of Private Forest Act, it attracts not only Tamil Nadu Hill Areas (Preservation of Trees) Act, but also the Forest Conservation Act, 1980 and Tamil Nadu Preservation of Private Forest Act. The learned counsel for the Appellants would further submit that the learned single Judge did not appreciate the fact that before granting permission to cut the trees it is necessary to ascertain the ownership of the land and implications, if any, and the soil erosion and the District Forest Officer has to inspect and certify the necessity or otherwise of the felling of trees. The main contention of the Appellants is that the provisions of the Act are implemented mainly as a regulatory and not as prohibitive.
8. We have heard Mr.A.L.Somayaji, learned Senior Counsel appearing for the 1st Respondent. Placing reliance on a decision of the Supreme Court in the case of T.N.GODAVARMAN THIRUMULKPAD VS. UNION OF INDIA reported in AIR 1997 SC 1228 = (1997) 2 SCC 267, the learned Senior Counsel submitted that insofar as the Plaintiff's (tea, coffee, cardamom, etc.,) the felling of shade trees will be limited to the species identified in the TANTEA report and also in accordance with the recommendation by the TANTEA. The learned Senior Counsel would further contend that in view of the dictum of the Supreme Court the ban on felling of trees will not apply to the felling of shade trees in the plantations identified by the TANTEA and therefore the learned single Judge rightly allowed the Writ Petition declaring that the 1st Respondent need not obtain any permit/consent for felling of trees from the State Government or any of its agencies for being used as a fuel.
9. The Tamil Nadu Hill Areas (Preservation of Trees) Act has been enacted (i) to stop indiscriminate cutting of trees in hill stations in the State of Tamil Nadu involving large scale deforestation and resulting in considerable soil erosion, (ii) to prevent deforestation and soil erosion and also (iii) to preserve the special characteristics of the hill areas as regards landscape, vegetal cover and climate.
10. As per Section 3 of the Tamil Nadu Hill Areas (preservation of Trees) Act, no person, shall, without the previous permission in writing of the committee, shall
(a) cut, uproot or burn or cause to be cut, uprooted or burnt, any tree, or
(b) fell or remove any tree which, constitutes dangers to life or property, or is dead or diseased or wind fallen, or has siliculturally matured, or
(c) cut or remove any tree for the improvement of coffee crop in any coffee plantation in such area in any hill area as the Government may, by notification, specify in this behalf. As per the second proviso, prohibition of cutting trees shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practice. As per the 3rd proviso, nothing contained in Section 3(2) shall be deemed to prevent the cutting or pruning of the branch of any tree for the purpose of providing proper shade for coffee or tea plantation. As per the 2nd and 3rd proviso, no pruning, cutting or pruning of the branch of any tree is permissible only for the purpose of ordinary agricultural or horticultural purposes or for providing proper share for coffee or tea plantation. As per the provisions of the Act, for cutting of tree, even for being used as a fuel, the permission in writing has to be obtained from the Committee.
11. Section 2A of the Act deals with the constitution of the Committee for each hill area. The Committee shall consist of the members viz.,
(a) the District Collector having jurisdiction as Chariman of the Committee;
(b) the District Forest Officer having jurisdiction over the hill area;
(c) the Tahsildar having jurisdiction over the hill area;
(d) the Executive Engineer of the Agriculture Department in charge of soil conservation having jurisdiction over the hill area;
(e) the Personal Assistant (General) to the Collector of the District, who shall be the secretary of the Committee. Section 2-B stipulates meetings of Committee. The Committee may meet as often as may be necessary. As per Section 5, every application for permission shall be made in writing to the Committee and shall be in such form and shall contain such particulars as stated thereon.
12. As rightly contended by the learned counsel for the Appellants, the above said Act has been enacted to regulate the cutting of trees and the cultivation of land in hill areas in the State of Tamil Nadu. The contention that no permission is required for felling of trees is untenable. It is pertinent to note that as against the dismissal of the Writ Petitions to declare the Tamil Nadu Hill Areas (preservation of Trees) Act, 1955 as unconstitutional, the 1st Respondent has not preferred any appeal. As per Section 3, no person without the permission in writing of the Committee shall cut any tree. It is the responsibility of the State to take all necessary steps in protecting the forest and to prevent soil erosion. As per Article 48-A of Constitution of India, it is enjoined upon the Government to protect the forest from deforestation. Under Article 51-A(g) everyone has the fundamental duty to protect and improve natural environment. The learned counsel for the Appellants contended that the Tamilnadu is a water starving State and it has to depend for its water requirement mostly upon the rain water and retention of rain water in the water shed is more important in the State. Further contention of the Appellant is that it is the responsibility of the State to take all necessary steps to protect the precious water shed and the main component of protecting water shed are protecting existing tree cover and increasing tree cover and ensuring soil erosion measures.
13. The learned counsel for the Appellant had also drawn our attention to National Forest Policy, 1988 which lists out checking soil erosion and denudation in the catchment areas or reserves lakes and reservoirs, preservation of soil and water conservation as one of its major objectives and the State has to translate the National Forest Policy into action and while that being so, all the subject matters mentioned in the National Forest Police will have to be treated under the head "Forest". The protection of forest soil is related to environment. It was further submitted that that as per Entry 17-A of List III the State is competent to enact the Act under the head "Forest".
14. Learned Senior counsel relied upon T.N.GODAVARMAN THIRUMULKPAD VS. UNION OF INDIA reported in AIR 1997 SC 1228 = (1997) 2 SCC 267, wherein the Supreme Court has held as under: "IV. FOR THE STATE OF TAMIL NADU
1. There will be a complete ban on felling of trees in all forest areas. This will however not apply to:
(a) trees which have been planted and grown, and are not of spontaneous growth, and
(b) are in areas which were not forests earlier, but were cleared for any reason.
2. The State Government, within four weeks from today, is to constitute a committee for identifying all forests.
3. Those tribals who are part of the social forestry programme in respect of patta lands, other than forests, may continue to grow and cut according to the Government Scheme provided that they grow and cut trees in accordance with the law applicable.
4. Insofar as the plantations (tea, coffee, cardamom etc.) are concerned, it is directed as under:
(a) The felling of shade trees in these plantations will be
(i) limited to trees which have been planted, and not those which have grown spontaneously;
(ii) limited to the species identified in the TANTEA Report;
(iii) in accordance with the recommendations of (including to the extent recommended by) TANTEA; and
(iv) under the supervision of the statutory committee constituted by the State Government.
(b) Insofar as the fuel trees planted by the plantations for fuel wood outside the forest area are concerned, the State Government is directed to obtain within four weeks, a report from TANTEA as was done in the case of shade trees, and the further action for felling them will be as per that report. Meanwhile, Eucalyptus and Wattle trees in such area may be felled by them for their own use as permitted by the statutory committee.
(c) The State Government is directed to ascertain and identify those areas of the plantation which are a forest and are not in active use as a plantation. No felling of any trees is however to be permitted in these areas, and sub-paras (b) and (c) above will not apply to such areas.
(d) There will be no further expansion of the plantations in a manner so as to involve encroachment upon (by way of clearing or otherwise) of forests. The Supreme Court issued directions for protection and conservation of forest and a High Powered Committee was directed to be constituted to oversee strict and faithful implementation of the orders of the Supreme Court.
15. In accordance with the Supreme Court's order in the said decision reported in AIR 1997 SC 1228 = (1997) 2 SCC 267 (W.P.(C) No.202 of 1995), TANTEA has made the following recommendations for regulating felling of fuel wood plantations raised outside the forest areas, which reads as under:
"(1) The felling prescriptions apply only to the exotic fuel wood plantations viz., Eucalyptus, Wattle and Silveroak and no indigenous species shall be allowed to be felled. (2) For the felling of the said firewood plantations/trees, no sylvicultural maturity or any specific rotation age is fixed. The owner of the plantation is given freedom to fell the plantation any time after eight years of age. However, it shall be incumbent upon the owner of the land to replant the area with same species or any one of three species indicated above preferably immediately after the felling of the plantation, but in no case after two years, failing which the Forest Department will take up planting in the third year at his expense. (3) The authority for granting permission for felling will be the District Forest Officer of the area. The owner of fuel wood plantation who intends to fell the plantation/trees shall apply to the District Forest Officer for permission with an undertaking that in the event of his failing to replant the area within two years time, the Forest Department may undertake replanting at his expense and if he plants the area with tea or coffee, or any other crop, the Department may pull out his plants and raise the firewood plantation. The diversion of fuel wood trees is not allowed, so that their tea factories requirements are met to the extent possible from their own areas and they do not encroach upon the firewood market which is meant to meet the public demand. (4) Before granting the permission, the District Forest Officer may make sure that the applicant produces a security deposit at the rate of Rs.100/- per tree in the form of Bank term deposit Certificate with a lien to District Forest Officer. The District Forest Officer may release the Term deposit certificate only 3 years after the planting is done, in other words if the planter undertakes replanting immediately after the felling, he may get his deposit back after 3 years when the seedlings have sufficiently established. However, if he fails to replant in the first year and undertakes planting only during second year, his deposit shall be returned 3 years after the planting year i.e., he will get it back in the 4th year only. In the event the planter fails to replant this area during the second year also, the District Forest Officer may take action to replant the said area and the Security Deposit amount may be forfeited to the Government." (emphasis added)
16. In the above said decision of T.N.GODAVARMAN THIRUMULKPAD VS. UNION OF INDIA reported in AIR 1997 SC 1228 = (1997) 2 SCC 267, in modification of its earlier interim order in W.P.(C) No.202 of 1995, the Supreme Court has passed the further clarification order in T.N.GODAVARMAN THIRUMULKPAD VS. UNION OF INDIA reported in (1997) 3 SCC 312 as under: "1. In modification of the earlier orders in the Civil Appeals Nos.367-75 of 1977, 2457 of 1977 and 1344-45 of 1976 and Writ Petition NO.202 of 1995 (1997) 2 SCC 267, it is directed as under:
"(i) As far as shade-trees in the Jammam areas are concerned, they would be governed by para 4(a) of our order dated 12-12-1996 insofar as it applies to the State of Tamil Nadu. However, all trees so felled in the Janmam areas shall be delivered by the Plantation to the State Government which will be free to deal with and dispose of the same. The State Government shall, however, keep a record of all such trees received by it. This will apply also to trees felled prior to the interim orders which are still in the possession of the plantations.
(ii) Insofar as fuel trees are concerned, we direct that felling of fuel trees be carried on strictly in accordance with the Report of TANTEA. After felling of fuel trees, the Plantations shall submit the account of such trees to the State Government. They may consume for their own use such number of fuel trees as are necessary and give an account of the same to the State Government. Any fuel trees not required by them would be surrendered by them to the State Government and the State Government would be free to deal with such trees. The State Government shall, however, maintain an account of any fuel trees received by it.
(iii) We further clarify that the direction that there will be no further expansion of the Plantation so as to involve encroachment (by way of clearing or otherwise of forest) will apply to the Janmam lands as well.
2. IAs Nos. 6-14 of 1996 in CAs Nos. 367-75 of 1977, IA No. 1 of 1996 in CA No. 2457 of 1977, IAs Nos. 3-4 of 1996 in CAs Nos. 1344-45 of 1976 are allowed in the above terms.
3. The Golf Course at Kodaikanal and Udagamandalam are permitted to function subject to the condition that the District Collector and the District Forest Officer of the area concerned are associated with the functioning of the same till the approval of the Government of India is received. (Emphasis added)
17. Referring to the report of TANTEA, the Supreme Court has directed that felling of fuel trees be carried on strictly in accordance with the report of TANTEA. As we have referred earlier, as per the TANTEA report, the authority for granting permission for felling will be the District Forest Officer of the area. The learned Senior Counsel for the Respondent Mr.A.L.Somayaji fairly conceded that as per the TANTEA report, the owner of fuel wood plantation, who intends to fell the trees, shall apply to the authority for granting permission, who is the District Forest Officer. As extracted earlier in Para 15(3) and (4), the District Forest Officer of the area is the authority for granting permission for felling of trees. As such, there is not much variance between the TANTEA report and the authority/Committee constituted under Tamil Nadu Hill Areas (Preservation of Trees) Act. As pointed out earlier, under Tamil Nadu Hill Areas (Preservation of Trees) Act, the District Collector, District Forest Officer, Tahsildar having jurisdiction over the hill area, Executive Engineer of the Agriculture Department and the Personal Assistant (General) to the Collector of the District are the members of the Committee to whom the application for felling of trees is to be made. By its further order, the Supreme Court directed that felling of fuel trees be carried on strictly in accordance with the report of TANTEA. The recommendation of the TANTEA report is not in much deviation from the provisions of the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955. In our considered view, for cutting and removing of trees as per the provisions of Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955, permission in writing of the Committee is mandatory.
18. Even though the 1st Respondent has averred that there has been delay in getting the permission from the 1st Respondent it applied for felling of tree for a total extent of 276.40 Hectares and permission had been granted for 225.38 Hectares. As rightly contended by the learned counsel for the Appellants, when an application for cutting of trees is made before granting permission to cut trees, it is necessary to ascertain the ownership of the land, the necessity to fell the trees and implications if any and the soil erosion. The District Forest Officer alone cannot check all these aspects and therefore the Tahsildar of the area as to inspect and certify the ownership of the land and the District Forest Officer about the necessity or otherwise of felling of trees and the Agricultural Engineer about the effects of tree felling of soil erosion. The completion of the formalities might take some time before issuing sanction permission to cut the trees. Consequently, there is bound to be some delay and Respondents cannot make much grievance of such delay.
19. The learned single Judge did not keep in view the benevolent object of the Act, which is intended to regulate the felling of trees and preventing soil erosion. The order of learned single Judge declaring that no permission is required for cutting and removing of trees is opposed to the provisions of the Act as well as to the direction of the Supreme Court in T.N.GODAVARMAN THIRUMULKPAD VS. UNION OF INDIA reported in (1997) 3 SCC 312. While upholding the provisions of the Act, the learned single Judge ought not to have granted the declaration that no permission is required for felling of trees for utilising the same as fuel. The order of learned single Judge dated 7.8.2000 made in W.P.No.18047 of 1993 cannot be sustained and the same is liable to be set aside and the Writ Appeal is allowed. However, there is no order as to costs.