The Sirumalai Kanakasabapathy Poohjolai Co. Ltd. vs State of Tamil Nadu

Nainarisundaram, J.—The petitioner is a successor in-interest of Kanakasabapathy and four others, who were awarded ryotwari pattas

under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act 26 of 1948)in respect of the lands in question situated in

sirumalai

Village, Dindigul taluk,Madurai Dist. Earlier, there was a notification by the Collector of Madurai under S.1(2)(iii) of the Tamil Nadu Preservation

of Private Forests Act, 1949. That notification was challenged by the petitioner in W. P. 3000 of 1977 and that challenge was successful when this

court allowed the -writ petition, countenancing two grounds urged on behalf of the petitioner. One was that once the lands have been treated as

ryoti lands and ryotwari pattas have been issued, the petitioner is entitled to hold the lands as not forest lands and the Tamil Nadu Preservation of

Private Forests Act, 1949 could not be applied to such lands. The second was that no notice was issued to the petitioner to show cause as to why

the provisions of that Act should not be applied to the lands in question, before the concerned notification was issued. The case of the petitioner is

that the authorities have nourished a grudge on this ground and they have been maneuvering to cause prejudice to the petitioner and this alone

prompted the authorities in having Sirumalai village where the lands are situated declared as a ''hill station'', within the meaning of the Tamil Nadu

Hill Stations (Proservation of Trees) Act, 1955, hereinafter referred to as the Act. In the Tamil Nadu Forest Manual corrected up to 31-12-1979,

produced by the learned Government Advocate (forest cases), appearing for the respondents, wherein the Act is also found, for the expressions

''hill stations'' the expressions ''hill areas'' stand substituted and the learned Government Advocate says that -this is the result of an amendment. The

Government Order directing notification under S. 1(2) of the Act is being impugned in this writ petition.

Mr. S. Ramalingam, learned counsel for the petitioner, would advance four submissions, coveting interference in writ powers. One is- that

Sirumalai village could never be characterised as a ''hill station'' or a ''hill area'' and there is no definition of a ''hill station'' or a ''hill area'' in the Act,

and as such, it confers on the Government an unguided, uncontrolled and unchanneled discretionary power in the matter of making a declaration

under S. 1(2) of the Act. Section .1(2) of the Act reads as follows: -

It applies to all hill areas in the State specified in the Schedule and to such other hill areas as may by notification., be specified by the

Government"".

The Schedule reads as follows-

The Schedule

(see Section .1(2).)

Coonoor Municipal area

Kodaikanal Municipal area

Ootacamund Municipal area

Yercaud Panchayat area"".

By notification, the area will come within the mischief of the Act, and there will be inhibitions and prohibitions with regard to cutting of trees and

cultivation for any purpose other than growing of trees; The Act does not contain definition of a ''hill station'' or a ''hill area'' and in the absence of

such a definition, we find that discretion is left unfettered and absolute to the Government with nothing to guide or control its action in notifying any

area as a ''hill station'' or ''hill area'' under S. 1(2) of the Act. The doctrine of equality before the law is a necessary corollary to the high concept of

rule accepted by the Constitution of this country. One of the aspects of rule of law is that every executive action- if it is to operate to the prejudice

of any person, must be supported by some legislative authority and second the law should not bring in discrimination or enable the authority to

discriminate between persons without just classification. While in .the case of enacted law, one knows where he stands in the case of unchanneled

arbitrary discretion, discrimination is writ large on the Each of it. A law which authorises or empowers the executive to select without providing any

definite guide or standard on the face of it, must be held to be discriminatory. The vice of conferring unguided discretion on an administrative

authority, which offends Art. 14 of the Constitution, because it empowers arbitrary action, is akin to the vice of unreasonableness as well as

excessive delegation or abdication on the part of the legislation. These are all well accepted principles and I find the submissions of the learned

counsel for the petitioner on these lines deserve acceptance. There is a complete vacuum in the Act as to when a station or an area could be

classified as a hill station or a hill area. No norms are exposed. The matter is left to the absolute discretion of the Government. The petitioner has

alleged mala fides, after placing the facts, which preceded the impugned Government Order. The petitioner is content to save his lands alone from

the mischief of the impugned notification and it has not ventured to strike down the relevant provisions of the Act.. Significantly, no counter affidavit

has been filed on behalf of the respondents advancing of offering any explanation for any of the grievances-of the petitioner, which stand expressed

in the affidavit filed in support of the writ petition. As stated above, there are no guidelines as to when a station or an area could be classified as a

''hill station'' or as a ''hill area'' and hence making a classification and notifying the same invoking the provisions of S. 1(2) of the Act can be rightly

viewed as reprehensible and coming with-in the mischief of the principles discussed above.

This is sufficient for the petitioner to succeed in the writ petition. Yet, I must place on record the other three submissions advanced by the

learned counsel for the petitioner. The second submission is that even if a case is to be advanced on behalf of the respondents that there is a

guideline in the schedule to the Act yet, when only the station. or area is similar to those set out in the schedule, it could be notified and in the

present case, by no stretch of imagination, Sirumalia village could be equated to the enumerated areas in the schedule. The third submission is that

the lands being ryoti lands and the notification under the Tamil Nadu Preservation of Private Forests Act, 1949 having been held to be void by this

court, the very, same reason must be held good for nullifying the present Government Order. Fourthly it was contended that before the Notification

under the Act was made, the petitioner ought to have been afforded an opportunity by way of an issuance of a notice to make his say in the matter

and this has not been done, and in

this regard, it must be had that the principles of natural justice stood violated. I have not gone into these aspects because I have upheld the first

contention and I have already stated that it is sufficient for the petitioner to succeed in the writ petition. Accordingly the writ petition is

allowed. No costs.

Petition allowed.