Kerala High Court
R.Sudha vs Union Of India on 19 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941
WP(C).No.2802 OF 2010(S)
PETITIONER:
R.SUDHA
ADVOCATE, VATTOLY COMPLEX, COMPARA JUNCTION, NEAR
HIGH COURT, ERNAKULAM.
BY ADV. SRI.R.SUDHA (PARTY IN PERSON)
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF TRIBAL WELFARE,
CENTRAL SECRETARIAT, NEW DELHI.
2 THE SECRETARY
DEPARTMENT OF SCHEDULED CASTES & SCHEDULED TRIBES,,
SECRETARIAT, THIRUVANANTHAPURAM.
3 THE DISTRICT COLLECTOR
MALAPPURAM.
4 ADDL.R4 CHALIYAR GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, CHALIYAR, NILAMBUR.
(ADDL.R4 IS SUO MOTU IMPLEADED VIDE ORDER DATED
02/02/2010)
R4 BY ADV. SRI.V.K.BALACHANDRAN
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SPL.GP.SRI.PRAKASHAN K.V FOR R2 AND R3
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2802 OF 2010(S) 2
JUDGMENT
S.MANIKUMAR,CJ Instant public interest writ petition is filed for the following reliefs:
i) To issue a writ of mandamus directing respondents to distribute 5 Acres of agricultural land each to the tribal families in Ambumala Colony, Chaliyar Village, Nilambur, Malappuram District.
ii) To issue a writ of mandamus directing respondents to provide houses to each tribal families in Ambumala Colony, Chaliyar Village, Nilambur, Malappuram District.
iii) To issue a writ of mandamus directing respondents to give nutritious food and other food items to the tribal children living in Ambumala Colony, Chaliyar Village, Nilambur, Malappuram District.
iv) To issue a writ of mandamus directing respondents to ensure that all the constitutional protection guaranteed to the tribal people are extended to the tribals in Ambumala Colony, Chaliyar Village, Nilambur, Malappuram District and further ensure that the provisions of Forest Dwellers Act are forthwith implemented in respect of the tribals of Ambumala.
v) Such other reliefs this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case.
WP(C).No.2802 OF 2010(S) 32. Record of proceedings shows that a Hon'ble Division Bench of this Court has issued orders from time to time. On 24 th February, 2010, an affidavit has been filed on behalf of the Secretary, Department of Scheduled Castes & Scheduled Tribes, Thiruvananthapuram, respondent No.2. Material on record further discloses that periodical statements have been filed on behalf of the Secretary, Department of Scheduled Castes and Scheduled Tribes, Thiruvananthapuram and Secretary, Chaliyar Grama Panchayat, Chaliyar, Nilambur, respondents 2 & 4 respectively. A report has been filed on behalf of District Medical Officer (Health), Malappuram. After causing inspection, reports and memos have been filed by the Kerala State Legal Service Authority also.
3. We have gone through the reports. Main grievance of the tribals appears to be providing housing, electricity connection, drinking water facility, Badal School Renovation/Infrastructure facility in common facility centre/Foot Path and water storage tank, Elephant proof wall, road renovation, implementation of Forest Right Act, 2006, Govt. Tribal Mobile Dispensary - Nilambur, Primary Health Centre Chaliyar-Akampadam, Yearly Speciality Medical Camps using LSGD Project Fund, Pariraksha Project of Chaliyar Grama Panchayath, Activities of non-Governmental organisations at Ambumala Tribal Colony (co-ordinated by Badal School - Ambumala & WP(C).No.2802 OF 2010(S) 4 Health workers).
4. Record of proceedings shows that on 6 th January, 2020, we issued the following directions:
"Kerala State Legal Services Authority (Kel.SA) has conducted a joint inspection at Ambunala Tribal Colony, Malappuram District, along with the petitioner and officers and submitted two reports, in 2010 and 2017 respectively. Statement/memo has been filed on behalf of respondents 2 and 3. However, Ms. R. Sudha, party-in-person submitted that some of the issues mentioned in the reports have not been addressed in letter and spirit.
2. Respondents 2 and 3 are directed to file status reports as on today, with reference to the issues/suggestions made by Kerala State Legal Services Authority, within three weeks.
3. Constitution of the Committee comprises of :
i. Member Secretary, KeLSA - Chairperson;
ii. Mr. D. Ajith Kumar, Senior Legal Aid Counsel, KELSA;
ii. President, Kerala Federation of Women Lawyers;
iv. Smt. P.K. Santhamma, Advocate, High Court;
v. President, Lawyers Environmental Awareness Forum (LEAF);
vi. Special Government Pleader for Scheduled Caste and Scheduled Tribe Welfare Development Department as nominated by the learned Advocate General.
vii. A Senior Government Pleader nominated by the learned Advocate General:
viii. Sri. P.B. Nooh, IAS;
ix. Special Government Pleader for the Department of Forest as may be WP(C).No.2802 OF 2010(S) 5 nominated by the learned Advocate General;
X. Dr. V. Vijayakumar, Principal District Judge, Wayanad.
4. Pointing out that Dr. V. Vijayakumar, Principal District Judge, Wayanad, one of the members of the committee, has retired from service on superannuation and the transfer of Mr.P.B. Nooh, IAS, Registrar General of High Court of Kerala has submitted a note dated 31.12.2019, as to whether the Sub Collector, Ottappalam and the current Principal District Judge, Wayanad can be nominated as exofficio members of the Committee in the place of those retired/transferred.
Perused the note dated 31.12.2019. We deem it fit to accept the same. Accordingly, Principal District Judge, Wayanad and Sub Collector, Ottappalam are nominated as ex officio members in the place of those retired/transferred."
5. Pursuant to which, the learned Special Government Pleader has filed an action taken report dated 17.1.2020, which is reproduced hereunder:
WP(C).No.2802 OF 2010(S) 6 WP(C).No.2802 OF 2010(S) 7 WP(C).No.2802 OF 2010(S) 8 WP(C).No.2802 OF 2010(S) 9 WP(C).No.2802 OF 2010(S) 1010. Thereafter the District Legal Service Authority has conducted physical verification of the contents of the above said report and filed a memo dated 19.2.2020 along with a letter dated 17.2.2020 of the Chairman/District Judge, District Legal Services Authority, Manjeri addressed to the Member Secretary, Kerala State Legal Services Authority, Ernakulam, which reads thus:
MALAPPURAM DISTRICT LEGAL SERVICES AUTHORITY Court Complex, Manjeri-676121, [email protected] Phone: 0483-2762220, Mob: 9188127501 Dated: 17.02.2020 From K.P John, Chairman/District Judge District Legal Services Authority, Manjeri.
To The Member Secretary, Kerala State Legal Services Authority, Niyama Sahaya Bhavan, High Court Compound, Ernakulam-682031.
Sir, Sub: Report called for in WPC 2802/2010- Submitting of- Reg. Ref:1. Letter No. 2599/C/16/KELSA dated 15.01.2020.
2. Letter D.No.1490/2020 of this Authority addressed to the Project Officer, I.T.D.P, Nilambur.
3. Report No. 347/2014 dated 04.01.2020 received from Project Officer, I.T.D.P, Nilambur.
4. Report dated 12.02.2020 received from Sri.Subash.K.N, Secretary, Taluk Legal Services Committee, Nilambur.
---------------------------------------
I may report that, on receipt of the letter referring No.1, I have called for the report of Project Officer, I.T.D.P, Nilambur as per reference No.2 on present status of the implementation of the schemes and projects for the development of the 'Ambumala Colony'. Project Officer, I.T.D.P submitted report dated 04.01.2020 referred No.3. On receipt of said report, for physical verification of the contents of the report, WP(C).No.2802 OF 2010(S) 11 Sri.Subhash.K.N., Secretary, TLSC, Nilambur was deputed. He filed report referred No 4.
After verification of both reports, for easy reference a comparative table of of both reports is prepared and submitted. A detailed report on various other aspects reported are also submitted for favour of follow up actions:
Sl. Project Amount Status report submitted by
No. Sanctioned
ITDP Officer Secretary, TLSC
1 Construction of 22 houses 5500000 22 houses 21 houses
completed constructed
2 Electrification 1950000 completed Wiring work
completed but
only 10 houses
provided electric
connection
3 Drinking water supply 600000 Completed implemented
scheme
4 Agriculture development 235000 Completed Coffee and
pepper are
cultivated
5 Soil and water conservation 829000 Completed Not seen
implemented
6 Repair work of multi grade 1600000 Completed Implemented
learning centre and but poor
development work infrastructure
7 Re-construction of 240000 Completed Work was
Ambumala road completed but
destroyed in the
flood in 2018
and 2019
8 Common facility centre 600000 Completed Completed but
lying in hygienic
condition
9 Elephant proof wall 2000000 Completed Completed but
not effective
10 Goat rearing unit 720000 Completed Presently not
functioning
11 Water purification system 32000 Completed Not seen
implemented
Total 14306000
WP(C).No.2802 OF 2010(S) 12
1) Housing
Construction of 21 houses has been completed in the colony. One house is not constructed as the lady to whom it was allotted has shifted her residence ton another colony after her marriage. It is reported that some of the toilets were seen unusable due to the crack on the wall of the building because of poor construction.
As per the report of the ITDP Project Officer, there is internal foot path in the Colony for the use of the People, but the Secretary Sri.Subash K.N,reported that he could not see any such foot path there.
2) Electrification.
The wiring works for providing electricity to the houses have been completed. But only 10 houses have been provided with electric connection now.
3. Common Facility Centre and Drinking Water Facility /Multi Grade Learing Centre, There is a concrete tank for storage and distribution of water collected from natural streams through plastic pipes. The entire houses are getting water from this tank through hoses. No water purification system installed in the Colony. The construction of Common facility centre has been completed. But it is lying in an unhygienic condition due to improper maintenance by the Colony people. A 'badal' school is functioning in the Colony as Multigrade Learing Centre in a closed shed and a store room is also attached to it. The building has metal roof. A single toilet found near the centre is not in a good condition for use. 13 students up to 4" standard are studying in the school now. As per the version of the colony people, teacher will be present in the school only for two-three days in a week. Noon meal system being provided in the School is working properly and no complaints received.
4) Reconstruction of Ambumala Road.
As per the report of the Project Officer, ITDP, renovation work of the road to the Colony completed in 2018 and the same damaged in the heavy rain fall and landslide occurred in 2019. Sri.Subash.K.N, the Secretary, Taluk Legal Services committee could not physically verify the condition of the road as the Colony People warned him not to go there because of the presence of wild elephant. As per the version of the Colony People, the entire road extending about three and half kilometres was totally damaged due to rain fall and landslide occurred in 2018 and renovation of the same may not be successful due to the particular geographical condition of the area which is prone to natural calamities. The alternative way to reach the Colony through 10 th block junction in Akampadam- Kakkadampoyil road has also been blocked due to the flood Occurred in 2019. A portion of the bridge constructed with metals to connect 10 th block junction and the colony washed off in the flood. The inhabitants have requested for construction of a road from 10 th Block Junction to the Colony with sufficient width for taking four-wheelers so that all transport related problems can be redressed. For construction of such a road, a bridge across Kuruvampuzha River and a Culvert have to be constructed. Properties of some private persons have to be utilized for the purpose. If such a road comes in to existence, the time to reach the Colony from the PWD road will be reduced to 5 minutes. Now, it is very difficult to reach the Colony by walking up and down through steep and narrow foot-path.
5) Elephant Proof Wall.
There is threat of frequent attack by wild elephants. There was a proposal to construct an Elephant Proof Wall around the Colony under the Additional Tribal Sub Plan Programme.
WP(C).No.2802 OF 2010(S) 13As per the report of the Project Officer, I.T.D.P, an amount of Rs.19.5 lakhs was allotted to DFO Nilambur for executing the project. Now the work has been completed by the Department and there is a protection wall around the Colony. However, it is reported by the Secretary, Sri.Subash.K.N, Nilambur Taluk Legal Services Committee that the protection wall having a height of 215 cm and width of 70 cm and the two units of electric fencing system installed in the borders of the Colony are not sufficient to keep away wild elephants. He has reported that there were wild elephants in the Colony premises at the time of his visit. It is also reported that one unit of the electric fencing system was not functioning at the time of his visit. As per the report, the threat of wild elephant attack still persists
6) Goat Rearing Unit.
As per the report of Project Officer, LT.D.P 17 families had been given three goats each to support their livelihood under the Additional Tribal Sub Plan Programme. But it is reported by the Secretary, Sri Subash.K.N, that no goat rearing units are functioning now as the goats supplied died of various illness. People complained that insurance amount of goats not disbursed so far.
7) Agriculture Development.
Coffee and pepper are cultivated in the Colony. The cultivation is being done by the inhabitants themselves without any help from Government agencies. According to the Colony People, cultivation of Clove, Nutmeg, Coffee and vegetables are more suitable in their area. They are ready to cultivate those items,if necessary support is received from government agencies
8) Soil and Water Conservation Soil and water conservation is not seen done in the colony. Residence of Ratheesh, Shibu and Pottan Palan are facing threat of landslide because of non construction of retaining wall. From physical inspection the area is prone to soil erosion also.
This report is submitted for favour of consideration.
Yours faithfully, Chairman/District Judge.
7. Responding to the above, State Government has filed a statement dated 10th March, 2020, which reads thus:
" REPLY STATEMENT SUBMITTED BY K.V.PRAKASAN, SPL. GOVERNMENT PLEADER IN THE ABOVE CASE.
1. As directed by this Hon'ble Court on 6.01.2020, I have filed a statement consolidating the reports received from various departments regarding the developmental activities carried out by different departments of the Government of Kerala in the Ambumala Scheduled Tribe colony in Chaliyar Grama Panchayat. Pursuant to the above statement, Taluk Legal Services Committee Secretary has seen visited the area and accordingly the Chairman of Malappuram District Legal Services Authority had WP(C).No.2802 OF 2010(S) 14 filed report dated 17.02.2020, Since the said report creates some ambiguity, it has become necessary to enquire with the concerned officers and submit the following clarificatory statement:
1. Housing As mentioned in the earlier statement there are only 25 Paniya families residing in the colony out of which only 22 were homeless. Though the construction of 22 houses were started, while the construction process was on and when reached almost lintel level, master of one of the houses Shri.Cheriapalan and his wife Maathi died. Due to some superstitious beliefs prevailing among Paniya Community, nobody was ready to stay in that house and the late Cheriapalan's daughter Beena shifted to her husband's house.
For this reason there was no necessity to complete the construction of that house. Hollow bricks used for the part construction were taken away from the premises by people inside and outside of the colony for various purposes.
2. Electrification Underground cables for electric connection were drawn to all the 22 houses in the colony. Though wiring job was carried out in all the completed houses, only 11 owners have complied with the required formalities for getting connection. Accordingly those 11 houses got electric connection. Other 10 houses will get electric connection on approaching the Kerala State Electricity Board and comply with their formal requirements.
3. Common Facility Centre and Drinking Water Facility/ Multi Grade Learning Centre The statement of the Chairman, DLSA that no water purification system is installed in the colony is wrong. Water purification system is installed and constructed in concrete at a much upper level area from the water tank. It can be seen only if somebody visit that place. Due to the difficulty in reaching this upper area, Taluk Legal Services Secretary might not have visited this place. Complaint about the common facility centre is that it is not hygienic. This centre is opened only when there are public functions. Since there are no regular functions in this centre, it is natural that there will be dry leaves and wastes and excretes of birds and donkeys. But whenever there are some programmes in this centre, the authorities used to clean it properly. "Badal' school is a single teacher school. Since the teacher hails from a distant place she is unable to come to the colony every day. This problem can be solved only by appointing somebody from the colony itself.
4. Reconstruction of Ambumala colony Road As stated in my earlier report, due to heavy rain fall and landslide in 2019 Ambumala Colony road had been damaged almost completely. As rightly opined by the Chairman of DLSA, renovation of the road may not be successful due to the particular geographical condition of the area which is prone to all natural calamities. In fact, for the reconstruction of the road, District Collector had talks with the land owners on either sides of the road. But nobody was prepared to surrender their land. District authorities had intimated that theyare moving forward and exploring the possibilities of getting land.
5. Elephant Proof Wall DLSA has reported that work of the protection wall has been completed. Only complaint was that out of the two units of electric fencing system installed in the boarders of the WP(C).No.2802 OF 2010(S) 15 colony, one alone is functioning now. Steps will be taken to repair this system.
6. Goat Rearing Unit Though goats were supplied to 17 families, they died due to various illnesses. At the time of supplying the goats they were insured for one year at the expense of the Government. But none of them renewed the insurance despite advice, which is the sole reason for failure to get the insurance amount.
7. Agricultural Development The statement in the report of the DLSA that the cultivation are being done by the inhabitants themselves without any help from Government agencies is not true. Coffee and Pepper cultivation were done with the help of the Agricultural Officer, Chaliyar.
8. Soil and Water conservation Soil conservation projects were implemented in Ambumala colony during the year 2010- 11,Construction of steps from the river, Protection wall for the houses etc. were included in this project. This fact is visible for anyone who climbs those steps. Ingress and egress to the Ambumala colony from block No.10 is possible only through these steps."
8. We have gone through the reports on various issues raised and find that though construction of 22 houses started, when it reached almost lintel level, master of one of the houses died. Therefore, construction of that house was not completed. We are also informed that due to some superstitious beliefs, nobody was wiling to stay in that house. As regards electrification is concerned, submission of Mr.K.V.Prakasan, learned Special Government Pleader is to the effect that, 22 houses have been constructed, out of which electrification is completed in 11 houses, others will get service connection on approaching the Kerala State Electricity Board, subject to compliance of formal requirements. We are informed that Electricity supply is given free to the tribals. The competent authority who has constructed the houses, should be having the required family WP(C).No.2802 OF 2010(S) 16 particulars of those to whom the houses are allotted or intended to be allotted. Therefore, we are of the view that, the competent authority himself can address the Kerala State Electricity Board to provide electricity supply to those houses after complying with the formalities. If required, the consumer namely the tribal, can be instructed to appear in the office of the competent authority to make an application to the Kerala State Electricity Board. In so far as re-construction of Ambumala colony road is concerned, decision of the Chairman, District Legal Service Authority was that renovation may not be successful due to particular geographical condition of the area which is prone to all natural calamities. As per the statement of the learned Special Government Pleader, for the purpose of re-construction of the road, District Collector had talks with the land owners on the either sides of the road, but nobody was willing to surrender their land. As per the statement, District Authorities have intimated that they are moving forward and exploring the possibilities of getting land. Tribals requires transportation. During the course of hearing, we are informed that, the length of the road is about 3.5 Kms. In respect of re-construction of road, it is also desirable that existing road be repaired before the end of May, 2020 and that same should be expedited. If not, possibility of laying a new road, be considered.
9. As regards, electrification of protection wall to prevent entry of WP(C).No.2802 OF 2010(S) 17 elephants is concerned, even as per the report of KELSA , the work of protection wall has been completed, but out of the two unit of electricity system installed in the boarders of the colony, one system alone is functioning. As per the statement filed on behalf of respondents, steps would be taken to repair the system. Residence of Ambumala Colony requires protection from animals.
10. On the facts and circumstances of the case, we deem it fit to direct the respondents to complete the repair works of electricity system as expeditiously as possible and at at any rate within one month from the date of receipt of this judgment. So far as other aspects are concerned, we find that the Government have taken steps to address the issues and therefore, there is no need to issue any further directions.
11. Apart from the above specific directions, we also make it clear that whatever defects/deficiencies noticed by the Chairman of the District Service Legal Authority, which includes Government facility centre, drinking water facility, the same should be addressed so that the grievance of the tribals would be vindicated in its letter and spirit. Competent authorities and the Housing Department, Electrification/Drinking Water/Construction of repair of road, agricultural development/soil and water conservation, and such other departments are directed to ensue periodical inspection of the subject area and submit reports to the District Collector, Malappuram. On receipt of such WP(C).No.2802 OF 2010(S) 18 reports, the District Collector, Malappuram District, is directed to issue appropriate instructions to the officers of the Forest Department, Medical Department, Agricultural Department, Electricity Department, Water Supply Department etc. to ensure that the tribals get basic and human rights as guaranteed under Article 21 of the Constitution of India. District Collector and other competent authorities are also directed to ensure that during the monsoon season, tribals are not put to any hardships towards the maintenance, food, medicine and such other requirements guaranteed under Article 21 of the Constitution of India.
12. With the directions issued in so far as the re-construction/repair of the Ambumala Colocy road, repair of the electric system, electrification of the remaining houses, public interest litigation is closed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 2802/2014
WP(C).No.2802 OF 2010(S) 19
PETITIONER'S EXHIBITS:
EXT.P1 - TRUE COPY OF THE NEWS ITEM REPORTED IN NEW INDIAN EXPRESS DAILY DATED 13.12.2009.