Kerala High Court
Rejilal T.S vs The Principal Chief Conservator ... on 8 October, 2018
Equivalent citations: AIRONLINE 2018 KER 830
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940
WP(C).No. 30472 of 2018
PETITIONER/S:
1 REJILAL T.S.,
AGED 43 YEARS
THIYYADI HOUSE, CHAKKODU PO,
NILAMBUR VIA, MALAPPURAM DISTRICT-679 332.
2 SAJEEV T.K.,
THIYYADI HOUSE, CHAKKODU P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
3 Y. DAVID,
PANANGATTU PUTHENVEEDU,
TK COLONY P.O., NILAMBUR VIA,
MALAPPURAM DISTRICT-679332.
4 JINSAMMA JOSEPH,
KURUKUNJIYIL HOUSE, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
5 VALSA P.D.,
THACHERIL HOUSE, JUSTICE ROAD,
JANATHA, VYTILLA-682019.
6 NEDUMKOMBIL AUGUSTINE,
NEDUMKOMBIL, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
7 THOMAS P.,
PANANDOTTU PUETHENVEEDU, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
8 PUTHUVAYALIL JOHN,
PUTHUVAYALIL HOUSE, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
9 JACOB PUTHENPURAKKAL,
PUTHENPURAKKAL, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
W.P.(C) No.30472 & 32190 of 2018 2
10 AUGUSTINE MATHEW,
THEVARKUNNEL, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
11 STEPHAN PUTHOLIKKAL,
PUTHELIKKAL HOUSE, TK COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
12 V.M. SHAJI,
VAKKOTTIL HOUSE, ANTHRUKODU,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
13 TOMY,
PASHNAVELLIL THELAPPARA, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
14 SUBHASH S.,
KUTHIRAVAYALIL, ANTHONYKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
15 AGUSTY OUSEPH,
POSHAN VELLIL, THELAPPARA, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
16 BENNY AUGUSTINE,
PALAMKANNEL, ANTONYKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
17 TOMY JOSEPH,
NEDUMKOMBIL HOUSE, ANTHONIKKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
18 NOBY GEORGE,
CHERIYAMBANATTU HOUSE, ANTHONIKKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
19 THOMAS K.,
ANTHONIKKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
20 JOHN P.A.,
POSHANAVELLIL, ANTHONIKKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
21 JAIMON SEBASTIAN,
ELAVUMKAL HOUSE, ANTHONIKKADU, KAVALAMUKKATTA,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
W.P.(C) No.30472 & 32190 of 2018 3
22 MUJEEB T.,
THAZHATHETHIL, T.K. COLONY P.O.,
NILAMBUR VIA, MALAPPURAM DISTRICT-679332.
BY ADVS.
SRI.DEEPU THANKAN
SRI.A.ABDUL NABEEL
SMT.NIMMY JOHNSON
SMT.UMMUL FIDA
RESPONDENT/S:
1 THE PRINCIPAL CHIEF CONSERVATOR (FOREST LAND &
RESOURCES),
FOREST HEAD QUARTERS, THIRUVANANTHAPURAM-695001.
2 DIVISIONAL FOREST OFFICER,
OFFICE OF THE DFO, NILAMBUR SOUTH DIVISION,
NILAMBUR-679 329.
3 FOREST RANGE OFFICER,
KALIKKAVU RANGE OFFICE, VANDOOR,
NILAMBUR SOUTH DIVISION,
MALAPPURAM DISTRICT-679 329.
4 THE DISTRICT COLLECTOR,
MALAPPURAM-679 332.
5 AMARAMBALAM GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
PUKKOTTUMPADAM, MALAPPURAM DISTRICT-679332.
6 CHOKKADU GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
MALAPPURAM DISTRICT-679 332.
7 ROY JOSEPH,
PINAKKATTIL HOUSE, KAVALAMKKATTA P.O.,
POOKOTTUMPADAM VIA,
MALAPPURAM DISTRICT-679 332.
8 SIVARAMAN S.,
PUTHANPURAYIL HOUSE, POOKOTTUMPADAM VIA,
MALAPPURAM DISTRICT-679 332.
R1 TO R4 BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.10.2018, ALONG WITH W.P.(C) NO.32190/2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.30472 & 32190 of 2018 4
C.R.
JUDGMENT
The captioned writ petitions are materially connected in respect of the action initiated by the Forest officials, Malappuram against the petitioners by removing the pipes installed by the petitioners to draw water from upstream of a river for agricultural operations flowing through a reserved forest. Facts and documents discernible from W.P.(C) No.30472 of 2018 are relied upon for disposal of the writ petitions.
2. Petitioners are residents of Amarambalam Grama Panchayat and Chokkodu Grama Panchayat, i.e., respondents 5 and 6. Ward No.VIII of 5 th respondent Panchayat and Ward No.V of 6th respondent Panchayat are situated in hilly areas of Nilambur Taluk and is coming within the jurisdiction of Divisional Forest Officer, Nilambur South Division, Malappuram District. According to the petitioners, the only source of water for drinking and agricultural purposes available to the petitioners and other residents of the above Wards in the Panchayats is the water from the Kottapuzha river. Since agriculture is their only source of livelihood, water for irrigational purpose is also important. For the past 40- 45 years, petitioners and their predecessors were drawing W.P.(C) No.30472 & 32190 of 2018 5 water from the river by installing pipes. During the rainy season, water is taken only for drinking purpose, and for agricultural purpose, water is drawn from September to April/May. During peak summer, petitioners take water for irrigation purpose only thrice a week. It is also the case of the petitioners that, similar arrangement is made by the Panchayat for the residents of the lower stream of the river.
3. Respondents 7 and 8 are residents of the 5th respondent Panchayat, but residing near to the lower stream of the river. They have approached the 4 th respondent with a complaint that by drawing water from the river by the petitioners and other residents is causing shortage of water in their wells. Since no action was initiated, the said respondents have approached this Court by filing W.P.(C) No.13834 of 2018 dated 13.04.2018 and secured Ext.P1 judgment directing the 2nd respondent therein to pass appropriate orders on the representation, after providing opportunity of hearing to the petitioners and all other interested persons. There was a direction also to hear the Panchayat if found to be adequate.
W.P.(C) No.30472 & 32190 of 2018 6
4. Matters being so, the Forest officials without hearing any interested persons and after hearing respondents 7 and 8, passed Ext.P2 order directing the Forest officials to remove the pipes installed by the petitioners for drawing water from the river. Similar contentions are raised by the petitioner in W.P.(C) No.32190 of 2018, who is the holder of an extent of 37.5 acres of land using water from Kottapuzha river for agricultural activities and drinking purpose.
5. A statement is filed by the 2 nd respondent in W.P.(C) No. 30472 of 2018, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, 1688 hectares of land known as Vadakkekota malavaram in Kalikavu range is notified as vested forest by virtue of Annexure-R2(a) notification dated 11.01.1977. The Kottapuzha river originates from the forest and runs through Vadakkekota malavaram and Kozhipra malavaram. Petitioners are not having property on the banks of the river but abutting the vested forest and both the banks of the Kottapuzha river in that area is vested by virtue of Annexure-A1 notification. The contention raised by the petitioners that they are drawing water for the land for several decades are all denied. Further, it is submitted that, W.P.(C) No.30472 & 32190 of 2018 7 whenever it comes to the notice of the forest department about the drawing of pipe line through the vested forest, department is taking strict actions to remove the encroachment. Before issuance of Ext.P2 order, all the pipes which were illegally put up by the petitioners though the vested forest into the Kottapuzha river was removed and a detailed report was given by the 2 nd respondent on 23.05.2018. The Principal Chief Conservator of Forests (Land and Resources) has adverted to the same in Ext.P2 order and has directed the 2nd respondent to remove all the pipes used for irrigation purpose and further directed that no pipes are laid in the vested forest or in the Kottapuzha. The properties of the petitioners are situated 150 metres away from the Kottapuzha and the said 150 metres is forest as per Annexure-A1 order and the pipes are laid through the 100 metres vested forest to the Kottapuzha river which is also vested by virtue of Annexure-A1 notification.
6. It is also stated that, after the issuance of Ext.P2 order and after the floods, petitioners again started laying pipes in the last week of August and 1st week of September, which was again removed by the forest officials with a strict warning that cases will be registered against all persons involved in laying pipes W.P.(C) No.30472 & 32190 of 2018 8 illegally by encroaching into the vested forest. Other contentions are also raised to the effect that, the petitioners have approached this Court without understanding the real implication of Annexure-A1 notification. It is further pointed out that, petitioners are not entitled to secure any relief as is sought for, in view of the imperative stipulations contained under Annexure-A1 notification and other provisions of the Kerala Forest Act, 1961 and the Forest (Conservation) Act, 1980.
7. That apart, it is submitted that, petitioners are not granted any permission under Sec.2 of the Forest (Conservation) Act or the Kerala Forest Act, for installing pipes through the vested forest and take water from the forest land and that any action of the petitioners to install pipes in the forest land to take water from Kottapuzha, which is also a reserve forest, is in violation of the provisions of the Forest (Conservation) Act, 1980. Therefore, according to the 2nd respondent, the writ petition has no sustenance.
8. I have heard learned counsel for the petitioners and the learned Special Government Pleader (Forests), and perused the pleadings and the documents on record. In view of the limited nature of order I propose to pass, W.P.(C) No.30472 & 32190 of 2018 9 notice to Panchayat and party respondents is dispensed with.
9. The paramount contention advanced by the petitioners in the writ petitions is that, as per the judgment rendered by this Court in W.P.(C) No.13834 of 2018, the forest officials were duty bound to hear the petitioners, and now Ext.P2 order is passed and the pipes are removed without providing an opportunity of hearing to the petitioners. It is also pointed out that, Ext.P2 order was passed in a writ petition filed by third persons and the directions contained were very well aware to the forest officials, since the judgment in the writ petition is referred to in Ext.P2 order. The sum and substance of the contention advanced by learned counsel for the petitioners is that, it is in blatant violation of the directions issued by this Court, Ext.P2 order is passed, and since no opportunity was provided, as directed, the order passed is clearly violative of the principles of natural justice, and therefore, illegal and arbitrary.
10. On the other hand, learned Special Government Pleader submitted that, as per Annexure-R2(a), the property in question is reserve forest, and therefore, in accordance with the provisions of the Forest Act, 1961 W.P.(C) No.30472 & 32190 of 2018 10 and the Forest (Conservation) Act, 1980, petitioners are not entitled to get any relief as is sought for, and therefore, even though the petitioners were not heard before the decision was taken, remanding the matter to the statutory authority to hear and dispose of the complaint filed by third persons would be a futile exercise.
11. Section 3 of the Kerala Forest Act, 1961 deals with power to reserve forests. Section 4 deals with notification to be issued by the Government, and whenever it is proposed to constitute any land a Reserved Forest, the Government shall publish a notification in the Gazette, specifying as nearly as possible, the situation and limits of such land; declaring that it is proposed to constitute such land a Reserved Forest; and appointing an an officer to inquire and determine the existence, nature and extent of any rights claimed, by or alleged to exist in favour of any person in or over any land comprised within such limits, or any forest produce of such land and to deal with the same as provided under the Act. Therefore, the Government is vested with ample powers under the Forest Act, 1961 to issue a notification and then declare that a particular area is reserved forest, and on issuance of such notification, the further W.P.(C) No.30472 & 32190 of 2018 11 activities in the reserved forest area is managed and controlled under the aforesaid Act or any other Act or Rules promulgated by the State or Central Government in that regard.
12. The Forest (Conservation) Act, 1980 came into effect on 25.10.1980. Section 2 thereunder deals with restriction on the de-reservation of forests or use of forest land for non-forest purpose, which stipulates that, "Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing, (i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non- forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose W.P.(C) No.30472 & 32190 of 2018 12 of using it for reafforestation". Explanation thereto defines "non-forest purpose", which read thus:
"For the purposes of this section, "non forest purpose" means the breaking up or clearing of any forest land or portion thereof for,
(a) the cultivation of tea, coffee, species, rubber, palms, oil bearing plants, horticulture crops or medicinal plants;
(b) any purpose other than reafforestation.
but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes".
13. So also, the Kerala Vested Forests (Management of Reserved Areas) Rules, 1980 is introduced under the Kerala Private Forests (Vesting and Assignment) Act, 1971, which came into force on and with effect from 07.06.1980. Rule 2(b) defines "Reserved area" to mean;
"such extent of the Private Forest vested in the Government under sub-section (i) of Section 3 or of the portion of a private forest or any lands comprised in such private forests, reserved under sub-section (i) of Section 10 for purposes directed towards the promotion of agriculture or the welfare of the agricultural population or for purposes ancillary thereto". Rule 3 mandates constitution of Vested Forest Authority, consisting of the Minister in charge of Forests and such other officers W.P.(C) No.30472 & 32190 of 2018 13 enumerated as per clauses (a) to (f), and other officials nominated by the Government. Rule 5 deals with duties of the Authority and the Authority is vested with powers to finalise schemes for the management of the reserved area. Rule 7 deals with constitution of Vested Forest Fund. Sub-rule (3) thereto is relevant to the context, which read thus: "The Vested Forest Fund shall be utilised for purposes directed towards the betterment of the reserved areas or the promotion of agriculture or the welfare of the agricultural population or for purposes ancillary thereto".
14. Having evaluated the situation relying upon the afore-quoted provisions and also the provisions of the Kerala Private Forests (Vesting & Assignment) Act, 1971, I am of the considered opinion that, even though as per Annexure-A1 notification, the area in question is reserved forest, the agricultural operations are protected to the extent defined under the Kerala Forest (Conservation) Act, 1980 and the Rules, 1980, specified above. Non-forest purpose defined in the Explanation, does not takes in among other things, the activities of laying pipelines. It is true, since it is a reserved forest area, agriculturists who require to draw water from reserved forest area, may have to seek permission W.P.(C) No.30472 & 32190 of 2018 14 from the Forest authorities. However, a harmonious reading of the afore-quoted provisions would make it clear that, the activity alleged to be undertaken by the petitioners was not a non-forest purpose in view of the exclusion made under Explanation to Sec.2 of Act, 1980.
15. In that view of the matter, I am of the considered opinion that, when a direction was issued by this Court to the forest authority to hear the petitioners therein, who have complained of the actions of the petitioners in these writ petitions, were entitled to be heard so as to put forth their case before the authority concerned. Therefore, I find force in the contention advanced by learned counsel for the petitioners that the order passed by the authority in accordance with the directions issued by this Court is violative of the principles of natural justice, and thereby arbitrary and illegal. So also, when a direction was issued by this Court to hear all interested persons before taking action in the complaint filed by third persons, definitely, an opportunity should have been provided to the interested persons, before any decision is taken. The said exercise is not undertaken by the Forest authority. There is no dispute with respect to such an issue raised by the petitioners in the writ W.P.(C) No.30472 & 32190 of 2018 15 petitions. True, there are, Panchayats and private parties in the writ petitions, however, the issue has to be re-considered as directed in the earlier writ petition, after providing opportunity of hearing to all concerned. This will also save considerable time.
16. Therefore, I quash the order passed by the 1st respondent dated 30.06.2018, viz., Ext.P2 and Ext.P17 respectively in the writ petitions. There will be a direction to the 1st respondent to re-consider the issue based on the complaint pertaining to Ext.P2 order in W.P. (C) No.30472 of 2018 dated 30.06.2018, after hearing the party respondents, the Panchayats and also the petitioners in these writ petitions and attain finality at the earliest and at any rate, within two months from the date of receipt of a copy of this judgment. In the interregnum, if the petitioners move any application seeking drawal of water and if there are enough water in the upstream for utilisation for the agricultural activities, and drinking purposes, before the 1st respondent, 1st respondent will be at liberty to consider the same and pass appropriate orders also regulating the drawing of water so as to protect the interest of all concerned, taking into account the afore-quoted provisions of law and in accordance with the availability W.P.(C) No.30472 & 32190 of 2018 16 of sufficient water in the upstream surplus of forest activities. The authority shall also bear in mind, petitioners are seeking use of water for agricultural activities, and drinking purposes, which are basic requirements for survival of the farmers.
The writ petitions are disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE St/-
11.10.2018 W.P.(C) No.30472 & 32190 of 2018 17 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.13834/2018 DATED 13.04.2018. EXHIBIT P2 TRUE COPY OF ORDER PASSED BY THE 1ST RESPONDENT DATED 30.06.2018.
RESPONDENTS' ANNEXURES :
ANNEXURE-R2(A) TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 11.01.1977.
ANNEXURE-R2(B) TRUE PHOTOGRAPH OF THE AREA OF KOTTAPUZHA FROM WHICH THE PETITIONERS ARE TAKING WATER.
//TRUE COPY// P.S. TO JUDGE St/-