The Travancore Devaswom Board vs The Deputy Examine Of Local Fund Audit on 15 November, 2018

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Kerala High Court

The Travancore Devaswom Board vs The Deputy Examine Of Local Fund Audit on 15 November, 2018

This DBA has been filed by the Devaswom Board seeking for approval of construction of an alternate tractor route because of the serious threat posed to DBA.No. 14 of 2018 2 the lives and limbs of pilgrims in so as far as the tractors are being plied frequently through the Nadapanthal where a lot of pilgrims converge in the season, it being a resting place and heavy rush is felt.

2. Tractors are being plied for transporting mainly the raw materials like rice, jaggery, cardamom etc. for preparation of 'Aravana' and 'Appam' and such other items including construction materials, along the Swami Ayyappan road. It is pointed out that once the Tractors reach the Valiya Nadapanthal at Sannidhanam they proceed further through Nadapathal along the eastern side, reach the 'Thirumuttam' and then the destination. The alternate route suggested is to have them taken through the land given on lease to the Devawom and lying parallel to the Nadapanthal on the eastern side of the buildings situated next to the Nadapanthal. The Tractors can reach the 'Thirumuttam' by crossing Nadapanthal near the stage, at the northern end.

3. The Advocate Commissioner appointed by this DBA.No. 14 of 2018 3 Court has filed Report No. 16 in DBA No. 13/2016 and report No. 23 in DBP No. 55/2018 referring to the urgent requirement to provide 'alternate tractor route', adding that in the joint survey conducted as per the directions given by this Court, with the involvement of the Forest and Revenue Departments and such other authorities, the properties have been measured out and identified. It is stated that the property through which the 'alternate tractor route' is suggested exclusively passes through the land allotted to the Devaswom Board on lease. It is in the said circumstances, that the Devaswom Board has filed above application for immediate interference, also producing a sketch as Annexure 2 showing the lie and location of the area including the 'alternate tractor route'.

4. Mr. Renjith Thampan, the learned Additional Advocate General appearing for the State, and in particular, for the Forest Department and the authorities of the National Tiger Reserve makes a reference to the additional affidavit dated DBA.No. 14 of 2018 4 12.11.2018, another affidavit dated 14.11.2018 and yet another affidavit filed today, that there is no much substance in the apprehension with reference to danger to the pilgrims, as the vehicles are coming all along through the Swami Ayyappan road, which is used by larger number of pilgrims and even if the alternate tractor route is made available, the tractors will have to cross the 'Nadapanthal'. This version is sought to be rebutted by the learned standing counsel for the Devaswom Board and the learned standing counsel for the High Power Committee, on using the 'alternate tractor route', entry to Nadapanthal will stand confined only to cross the same at the northern end near the stage, where there is no convergence of pilgrims, it being a place beyond the steps in front of the temple which are used by the pilgrims to have access to or from the Thirumuttam.. Heavy rush to have entry to the Sabarimala temple and similar rush to step down will not be there near the stage and as such, plying of the tractors will be rather easy and it will not cause any hindrance to free movement of DBA.No. 14 of 2018 5 pilgrims or cause any danger especially to the little children or the aged or ailing devotees.

5. The learned Additional Advocate General submits that the version of the Advocate Commissioner that 'alternate tractor route' comes within the land given on lease to the Devaswom Board is not fully correct and that objection has already been filed in this regard. It is also brought to the notice of this Court that, another route is available, even as on date, through the Swami Ayyappan road, by taking a deviation from Marakoottam to proceed along the Chandranandan road, through the Bailey bridge and further to reach the destination. This route is marked in the sketch produced as Annexure F6 along with the affidavit dated 12.11.2018. Reference is also made to the photographs produced as Annexure F7 series showing tractors belonging to the Devaswom as plying along the said road, where there is no pilgrim access. It is also stated that only some minor repairs may be necessary to make it more convenient.

6. The learned Additional Advocate General makes a DBA.No. 14 of 2018 6 further reference to the specific pleadings in the additional affidavit dated 12.11.2018 sworn to by the Deputy Director, Periyar Tiger Reserve - West Division that the Forest Department had already alerted the Devaswom Board in the last year, when construction of the 'Hospital Complex' was going on. It is pointed out that the Tractors could have been taken through the alternate route suggested by the Devaswom, making use of the property available with the Devaswom on lease, instead of encroaching into the forest land. The pleading as contained in the paragraph 8 of the said affidavit is extracted below :

"8. It is submitted that even at the time of the construction of the hospital building, the then Forest Officials had shown the Travancore Devaswom Board officials that the tractor can be taken through the eastern back side portion of the Government Hospital building which comes within the leased out area. Immediately a small building, considered alleged to be a store house was constructed having 4.6 m width, behind the Government Hospital building, very adjacent to the existing boundary line of the leased out area by the Devaswom Board. This was constructed solely to ensure that the tractor is to be DBA.No. 14 of 2018 7 taken outside leased out area through the Forest land. Photograph of the small store room and the boundary wall as well as the Forest Area on the outer side is produced herewith and marked as Annexure F8. It is submitted that the Government Hospital building is a huge building, and the store house is now used only as a mess for employees of the Hospital Administration. There is no difficulty for removing the the said small store house and if the store house is removed, the tractor may be taken through the leased out area itself. "

        It     was        without           any          regard       to     the        said

        suggestion/proposal               that      the        construction        of    the

Hospital Complex was completed, putting up a boundary wall and another small single storied structure attaching the boundary wall on the east, which is almost close to the forest boundary. The said structure/construction is identified to be a place for storing medicines, but now it is being used as a 'mess hall' by the hospital staff. If the said small structure is demolished to an appropriate extent, the Forest Department does not have any objection in making use of the proposed 'alternate tractor route', confining through the land allotted to the Devaswom on DBA.No. 14 of 2018 8 lease. It is further pointed out that, if the property beyond the boundary wall is to be made use of in this regard, sparing the said small structure, it will encroach into forest land and supporting wall will have to be constructed to an appropriate extent, which will affect the flora and fauna, besides the huge expenses to be incurred in this regard.

7. When the matter was heard in the forenoon today, specific instruction was sought to be obtained from the Devaswom authorities as to the two alternate suggestions made by the Forest Department in the affidavit as mentioned above. On the basis of the instructions, it is submitted by the learned standing counsel for the Devaswom in the afternoon that the 'alternate tractor route' suggested by the Forest Department through Bailey Bridge is not feasible, as no vehicle can be taken through the said route, if it rains and there is serious chance for causality because of higher gradient, incline, topography and such other reasons. It is also pointed out that a personal visit/inspection of the said route was made DBA.No. 14 of 2018 9 by the Chairman of the High Power Committee and feasibility was examined whereby it was found 'negative'.

8. With regard to the alternate suggestion made by the Forest Department, the learned standing counsel for the Devaswom submits, after getting instructions, that version put forth by the Department with regard to the construction of the Hospital Complex it thoroughly wrong and misconceived. It is stated that the said building/structure was never constructed by the Devaswom Board; but was effected by the Health Department of the Government. The learned standing counsel adds that the Devaswom Board does not have any objection at all, in having the said structure [identified for storing medicines but stated as used as mess hall] to be demolished to any appropriate extent so as to lay the alternate tractor route through the said portion as well, avoiding the alleged intrusion into forest property, if any.

9. After hearing both the sides and going through the pleadings and proceedings, this Court is of the DBA.No. 14 of 2018 10 view of that the genuine need of providing 'alternate tractor route' is established and that the same has to be given effect to immediately. We also hold that the route suggested by the Forest Department through the Bailey bridge is not feasible, in view of the opinion expressed by the Chairman of the HPC and also the standing counsel for the Devaswom. In view of the willingness expressed by the Forest Department through the affidavit and as put forth by the learned Additional Advocate General who represents the State and its various departments like, Forest, Devaswom and Health, to have the 'alternate tractor route' taken through eastern side of the Nadapanthal and the nearby buildings after demolition of a portion of the separate single storied structure as reflected from the photographs produced [which is stated as identified for storing medicines/now used as mess hall], we find it appropriate to cause demolition of the said small structure to an appropriate extent, to lay the alternate tractor route as suggested by the Devaswom Board through Annexure 2 sketch, which stands DBA.No. 14 of 2018 11 modified and accepted to the said extent. It is ordered accordingly. It is for the Government to identify proper place for the storage of medicines within the Hospital complex or elsewhere. Same is the position with regard to providing of 'mess hall', if at all any required, in the main building or such other place located within the premises available after laying the 'alternate tractor route'. The portion of the single storied construction sought to be demolished shall be identified by the Government with the involvement of the authorities of the Forest, Devaswom, Health Department, also with notice to the Chairman of the High Power Committee, which shall be done at the earliest, at any rate, within 10 days from the date of receipt of a copy of this order.

10. It is open for the Government, as suggested by the learned Additional Advocate General, to convene a joint meeting of the competent authorities of the various departments to consider and lay the 'alternate tractor route' as above avoiding demolition of the structure as aforesaid; which however shall be DBA.No. 14 of 2018 12 finalized within 10 days from the receipt of a copy of this order. It is for the Devaswom to pursue further steps to make the alternate tractor route fit for conveyance to the minimum required extent and make it available for service during current Mandalam Makaravillaku season itself.

DBP stands closed.

Sd/-

P.R.RAMACHANDRA MENON JUDGE Sd/-

N.ANIL KUMAR JUDGE kmd

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