V. Ramaswami, J.
1. In this writ petition the petitioner has questioned the validity of a notification of the Collector of Madurai dated 5th October, 1975 under Section 1(2)(iii) of the Tamil Nadu Preservation of Private Forests Act, 1949, declaring among others, the following Survey Numbers 753/1, measuring 529.22 acres; 753/3 measuring 328-69 acres; 856 measuring 195.45 acres; 857/3 measuring 287.86 acres situate in Sirumalai Village, Madurai District, as private forest within the meaning of that Act. The petitioner had also mentioned in his petition that S. No. 857/1 measuring 398.06 acres as having been notified in the same notification. But we find that the notification gives the survey number as 817/1, though the extent is given as 398.06. Since the notification gives survey number as 817/1, we cannot assume that there is any mistake in giving the survey number and if really the Government considers that there is a mistake, the Government will have to give an erratum and if only such erratum is given and the lands are brought under the Preservation of Private Forests Act, the petitioner can be stated to be aggrieved and therefore I am considering the relief claimed in this writ petition with reference to survey numbers 753/1, 753/3,856 and 857/3 alone.
2. These survey numbers originally formed part of Ammayanaickanur Zamin estate which was notified and taken over on 3rd January, 1951 under the Estates Abolition Act XXVI of 1948. Ryotwari settlement was also introduced in fasli 1369. One Kanakasabapathy and four others applied for a ryotwari patta in respect of these survey numbers under Section 11(a) of the Abolition Act. On such application being made, the Assistant Settlement Officer considered the question as to whether the land in respect of which the ryotwari patta was claimed, is a forest land and ultimately held that it was a forest land and ordered the survey numbers to be registered as forest under Section 63 of the Act. The aggrieved persons filed appeals to the Director of Survey and Settlements. By an order dated 15th May, 1966 in A. P. No. 3 of 1964, the Director of Survey and Settlements held that the lands in question are not forest lands and set aside the order of the Assistant Settlement Officer and remanded the matter for considering the claim of the aggrieved persons under Section 11 of the Act. Though the matter was considered by the Assistant Settlement Officer again and then went in Appeal and revision and again back to the Assistant Settlement Officer, finally the Settlement Officer, Madurai, after an inspection of the lands, allowed ryotwari patta in respect of the lands now in question. Against that order of the Settlement Officer, Madurai, the District Forest Officer, Madurai filed a revision to the Director of Survey and Settlements contending that the lands, are forest lands. The revision petition was dismissed holding that the question whether the lands are forest or not had already been concluded and that applicants were also entitled to the ryotwari patta under Section 11 of the Act. The District Forest Officer again filed a revision to the Board of Revenue and the revision also was dismissed on 2nd March, 1973. After the District Forests Officer failed in this battle which lasted over a decade, he seems to have invited the Collector to invoke his powers under the Preservation of Private Forests Act, 1949 and to declare the lands as private forest and that is how the pesent impugned notification came to be made. The petitioner filed a revision to the Government praying for cancellation of the notification and to permit the petitioner to reclaim the lands for growing coffee, cocoa, pineapple, mango, spices like pepper caradamom, cloves, etc., That revision petition was dismissed by the Government in their memorandum dated 4th August, 1977. It is in these circumstances that the present writ petition has been filed.
3. Section 63 of the Abolition Act provides that where any question arises whether any land in an estate is a forest, it shall be determined by the Settlement Officer subject to an appeal to the Director, Though the Settlement Officer determined that it is a forest, on appeal the Director held that it was not a forest, and that it is a ryoti land. Under Section 64 -C of the Act, any order passed by the Government or other authority under the Act in respect of matters to be determined for the purpose of the Act shall be final and no such orders shall be liable to be questioned in any Court of law. The decision of the Director who was the competent authority to decide whether a particular piece of land is forest or not, has therefore become final and not liable to be questioned. There is no dispute also that if the lands are ryoti lands, the petitioner who had succeeded to the original ryots, Kanagasabapathy and four others, is entitled to hold the lands as his ryoti lands. In the circumstances, the real point that has to be decided is, whether contrary to the decisions given under Section 63 of the Act, a notification could be made under the Tamil Nadu Preservation of Private Forest Act, 1949 declaring this area as private forest.
Section 1(2) of this Act provides that it applies:
(ii) to forests situated in estates as defined in the Madras Estates Land Act, 1908, in the State of Madras.
(iii) to private forests situated in other area in the State of Madras and having a contin guous area exceeding 30 acres which may be declared by the District Collector to be forests for the purposes of this Act by notification in the District Gazette. Forest is defined in Section 2(a) of this Act as including.
Waste or communal land containing trees, shrubs and reeds, pasture land and any other class of land declared by the State Government to be a forest by notification in the Fort St. George Gazette.
The present impugned notification is not a notification by the Government, but it is a notification by the Collector under Section 1(2)(iii). Broadly stated, the Act applies to forests situated in estates and private forests situated outside the estates, if notified by the Collector. Since it has already been held in the proceedings under the Abolition Act that the lands in question are ryoti land, it will not come within the words 'waste or communal land' referred to in the definition of 'forest.' nor can it be brought under the pasture land, and therefore we have to look up to the position whether it satisfies the condition of forest. I am of the view that having regard to Section 1(2) of the Act, the word 'forest' in Clauses (ii) and (iii) of sub-section 2 of Section 1 of the Act will have to be understood in the same sense. If that is so, there is already a declaration under Section 63 of the Abolition Act which has become final and binding on the parties, that it is not a forest within the meaning of Estates Land Act. Therefore it was open to the Collector to notify under Section 3 of the Madras Preservation of Private Forests Act, 1949, these lands as private forests. Even assuming that the word 'forest' in Clauses (ii) and (iii) of Sub-section (2) of Section 1 of Act XXVII of 1949 will have to be understood differently and the decision under Section 63 of the Abolition Act cannot be invoked in these proceedings, I am not satisfied that there is any material on which the Collector, could have come to the conclusion that the lands in question are forest lands. There is no definition of 'forest' or 'private forest' in the Estates Land Act. Even the definition of 'private forest' given in the Act LV of 1961 is 'forest' other than 'reserved forest' and therefore it does not help us in deciding what is a private forest. But there is some light in the provisions of the Estates Land Act and some of the decisions considering those provisions which may enable us to come to a conclusion what could be 'forest'. Under Section 6(1) of the Estates Land Act, occupancy right is given to very ryot who is in possession of ryoti land and who has been admitted by a landholder to possession of ryoti land. But Clause (2) states that admission of a parson to land reserved bona fide by a landholder for forest, under a contract for the temporary cultivation thereof with agricultural crops, shall not by itself confer upon the person so admitted a permanent right of occupancy. This provision suggests a conscious reservation of forest land by the land-holder in order to prevent a ryot from getting any permanent right of occupancy. We may therefore infer that the intention of the owner as to how these lands have to be treated or dealt with may be very relevant for the purpose of considering the question whether the particular land is 'forest' or 'not'. For instance though waste lands covered with shrubs, jungle and the like may not be cultivated, it cannot be held to be uncultivable on that account. It is in these circumstances that the Supreme Court in Sri Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar : 3SCR763 held that though the lands were covered with shrubs, jungle and the like and had not been cultivated for a long time, it cannot be held to be uncultivable on that account. The Supreme Court further held that so long as the lands can be brought under cultivation, they shall be treated as ryoti lands within the meaning of Section 3(16) of the Estates Land Act.
4. In the decision in Kadirvelsami v. Sulthan Ahmed Badruddin Rowther : AIR1947Mad160 the land in question was a large extent of forest land. But it was leased for the purpose of cardamom cultivation. A division bench of this Court held that cardamom cultivation is 'agriculture' and that though the lands, were forest lands, they were cultivable and since the lessee was holding the ryoti land for the purpose of agriculture, he became a ryot and acquired permanent right of occupancy under Section 6 of the Estates Land Act. The suit was ultimately dismissed on the ground that it was not maintainable as the defendants were ryots with permanent right of occupancy.
5. If in this case, it had been shown that the land-holder while admitting the ryot to the land reserved for forest, had shown an intention not to confer upon the person so admitted, a permanent right of occupancy, then the land would have retained its character as forest land. Therefore the mere existence of shrubs, and jungle or wild and natural growth by itself, may not make the land as forest. Even the meaning given in the Random House Dictionary for the word forest is to the effect that a forest is an extensive area preserving some or all of its primitive wildness and usually having game or wild animals in it. But the Estates Land Act and the Abolition Act did not treat the lands as non-cultivable lands and therefore they are to be treated as ryoti lands. When once they are treated as ryoti lands and ryotwari patta has been issued, the petitioner is entitled to hold the lands as not forest lands and the Preservation of Private Forests Act could not be applied to such a land. The impugned notification is therefore beyond the jurisdiction of the District Collector.
6. The learned Counsel for the petitioner also contended that before issuing the notification under Section 1(2) (iii) of the Act XXVI of 1969, no notice was issued to the petitioner to show cause why that section should not be applied. Though there is no procedure prescribed, I am of the view that since it affects the rights of parties in respect of trees that are standing on the land owned by them, the principles of natural justice require that the owners should have been given notice to show cause against such notification ; otherwise any other construction would lead to an assumption of an arbitrary power irrespective of whether the lands in question are private forest or not. In fact the circumstances of this case show a special need for issue of a notice to the petitioner. As already stated, the District Forest Officer was a party to the proceedings under Section 63 of the Abolition Act when it was declared as a forest and even in ryotwari-patta proceedings, he had taken up the matter in appeal and revision against the order of the Settlement Officer granting patta and it is at his instance that the Collector seems to have made this notification. Therefore the notification of the Collector is in violation of the principles of natural justice and accordingly it is liable to be set aside. The writ petition is allowed in respect of Survey Numbers 753/1, 753/3. 856 and 857/3 alone. Rule nisi is made absolute. But there will be no order as to costs.