Madras High Court
P.Chandrabose vs Ministry Of Environment on 29 September, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
W.P(MD)No.24569 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
30.08.2022 29.09.2022
W.P(MD)No.24569 of 2018 and
W.M.P(MD)No.22267 of 2018
P.Chandrabose ... Petitioner
Vs.
1.Ministry of Environment,
Forest and Climate Change,
Indira Paryavaran Bhavan,
Jorbagh Road,
New Delhi – 110 003
by its Secretary.
2.The Principal Chief Conservator of Forests,
Department of Forests,
Government of Tamil Nadu,
No.1, Panagal Building,
Jenis Road, Saidapet,
Chennai – 600 015.
3.The Chief Conservator of Forests,
Tirunelveli Division,
NGO Colony, North Main Road,
Tirunelveli – 627 009.
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W.P(MD)No.24569 of 2018
4.The District Forest Officer,
Tirunelveli Division,
NGO Colony, North Main Road,
Tirunelveli – 627 009.
5.The Ranger,
Sivagiri Range,
Sivagiri,
Tirunelveli District.
6.The Forester,
Sivagiri Range,
Sivagiri,
Tirunelveli District.
7.The Ranger,
Puliyangudi Range,
Puliyangudi,
Tirunelveli District.
8.The Forest Watcher,
Puliyangudi Range,
Puliyangudi,
Tirunelveli District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of India,
praying for issuance of a Writ of Mandamus, forbearing the respondents
from denying the petitioner, his family members, servants or labourers from
using vehicular transport along the existing mamool pathway or coupe mud
road to gain access of the petitioner's own patta lands comprising of
Cardamom Estate known as Keezhthoppu at Survey Nos.934/1, 927 and
929, admeasuring about 8 acresa nd 17 cents out of 69 acres of patta lands
in Ullar Beat, Kallakadai [Ponparai], Sivagiri Part II Village, Sivagiri Taluk,
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W.P(MD)No.24569 of 2018
Tirunelveli District commencing through the reserved forest gate adjacent to
forest tribals rehabilitation sheds in Puliyangudi and via the forest shelter
promoted by the Tamil Nadu Biodiversity Greening Project [Scheme
2013-2014] at Naiparai in Sivagiri Taluk, Tirunelveli District.
For Petitioner : Mrs.Sudharsana Sundar
For Respondents
R1 : Mr.V.Malaiyendran
R2 to R8 : Mr.R.Suresh Kumar,
Additional Government Pleader
ORDER
The petitioner filed this writ petition for issuance of writ of Mandamus, forbearing the respondents from denying the petitioner, his family members, servants or labourers from using vehicular transport along the existing mamool pathway or coupe mud road to gain access of the petitioner's own patta lands comprising of Cardamom Estate known as Keezhthoppu at Survey Nos.934/1, 927 and 929, admeasuring about 8 acres and 17 cents out of 69 acres of patta lands in Ullar Beat, Kallakadai [Ponparai], Sivagiri Part II Village, Sivagiri Taluk, Tirunelveli District.
2.The contention of the petitioner is that the petitioner owns Cardamom Estate in S.Nos.934/1, 927 and 929 in Sivagiri Part II Village, Page No.3 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 Sivagiri Taluk, Tirunelveli District for the past 20 years. It is commonly known as Keezhthoppu at Kallakadai. The Estate is located on the eastern face of the western ghats. The petitioner purchased the property vide Doc.No.358 of 1990 at Erattupetta in Kerala. The petitioner is cultivating cardamom and certain other spices in the said Estate. The petitioner had access for most of the way by an earlier mamool/coupe road which is a “Mud Road”. The pathway was possible for goods vehicle from Puliyangudi gate. There was a existing Forest Coupe road from Naiparai to reach the petitioner's Estate. This road was used for several decades and it is still usable. The adjacent owners of the Estate in the vicinity also using the same road. This is the only route along the river to reach the private patta estates. In G.O.Ms.No.21 dated 08.01.1980 the same is recorded and by passage of time, this was termed as Ullar Beat. The entire Kallakadi area was originally within the Puliyangudi range. At that time, there was no problem in using the above road. The range was bifurcated into Sivagiri Range and Puliyangudi Range. After bifurcation, the respondents 7 and 8 obstructed the petitioner from passing through the main gate in Puliyangudi range by stating that the Kallakadai Estate falls within the Sivagiri range. Thereafter, the petitioner made representation to the respondents 5 and 6. Page No.4 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 During the monsoon rains in November and December 2017 and during Okki Cyclone in Southern Districts of Tamil Nadu and Kerala, many trees in the Estate fell down due to wet soil and natural wind. The access to mud road was destroyed in some places. During the unprecedented floods of Kerala during June and July 2018, many more trees fallen down and the petitioner's plantations were virtually ruined. The Ullar Beat had number of fallen trees.
3.The petitioner to travel to his Estate and to restore growth of Cardamom and other plants, vehicular transport needed for carrying men and material. When the petitioner reaches near the forest tribals rehabilitation home which is about 2 km before Naiparrai, he was informed by the respondents 7 and 8 that the petitioner to get permission from the 4th respondents District Forest Officer to take his Jeep through the existing gate. There is a regular metalled road to the forest shelter with all facilities which is put up under Tamil Nadu Biodiversity Greening Project Scheme 2013-2014 at Naiparrai. Even the use of the metalled road at times denied by placing a temporary gate with a lock. There is no clear instructions, the petitioner as well as his staff are subjected to whims and fancies of the Page No.5 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 forest officials. The petitioner made several representations in this regard. The petitioner is a genuine Estate owner and he may be permitted to use his modern four wheel drive vehicles or ATVs to reach his Estate. It is very difficult to get sufficient labourers to be stationed in the Estate on permanent basis. Further in case of emergency the usage of vehicle in the pathway is necessary. Hence, it is imperative to forbear the respondents 4 to 8 from restricting the petitioner from using the vehicular transport to reach his Estate near Ullar Beat in terms of G.O.Ms.No.21 dated 08.01.1980.
4.The Forest Conservation Act as amended in 1988 and Rules 2004 came into force on 25.10.1980 and it is clarified that the cases in which specific orders for De-reservation or diversion of forest areas in connection with any project, issued by the State Government prior to 25.10.1980 need not be referred to the Central Government. The pathway to the petitioner Estate is confirmed by G.O.Ms.No.21 dated 08.01.1980. The apprehension of the Forest officials that removal of timber or any forest produce does not arise, since the forest is under strict vigil. Further, there would not be any disturbance to both flora and fauna since the vehicular transport are sparingly used. On account of some overzealous officers who are new to Page No.6 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 this area, are suggesting and insisting that the petitioner and his Estate workers to walk 9 kms up hill to reach the Estate. This affects the petitioner's fundamental right to carry on agricultural activities in his patta land. The petitioner sent several representations, last of which was sent on 01.10.2018. Though the respondents received the same, they have not responded.
5.This Court in respect of the adjacent land owner passed an order in W.P.(MD).No.23167 of 2018 on 21.02.2019, wherein this Court allowed the writ petition, declaring the petitioner therein are entitled to use the pathway. Though a writ appeal was filed against the said order in W.A.(MD)No.671 of 2019, no interim order passed. In view of the same, the petitioner to be given the similar relief of right of path way to use the motorable vehicle to reach his Estate. Further, the Division Bench of this Court in W.A.Nos.1375 of 2012 and batch, by order dated 15.10.2012 permitted the vehicular movement in the forest area to reach the patta land and it is also stated that the Forest officials can take action on such of those persons who use the forest land for any other purpose other than what was authorised. Further, it would be open to the forest officials to have check points enroute so as to prevent any person from violating the order.
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6.The usage of pathway by the petitioner and other Estate owners for years together is recognized in G.O.Ms.No.21 dated 08.01.1980 which confirms that there is a pathway of 1.5 meters passing through several survey numbers which includes the petitioner's survey number. It is further submitted that in the absence of process for acquiring any private patta land in the reserve forest area, the forest officials cannot curtail or restrict the use of individual's property by denying the use of pre-existing pathway or mamool route. The acquisition of the private forest area by the Forest Department is permitted as per the Act and further in Malappara Village of Peerumadu Taluk, the private forest lands were acquired for formation of Periyar Valley Tiger Project and compensation was paid which was approved by the Kerala High Court in O.P.No.31502 of 2000 dated 27.04.2004 and the Apex Court in the case of K.A.A.Raja vs. State of Kerala reported in 1994 SCC (5) 1387. The petitioner is ready and willing for such offer and the forest officials are well within their right to acquire the petitioner's private forest land and pay adequate compensation or in the alternative they can also give equal valued property in the buffer zone, so that the entire area can be maintained as Reserve Forest Sanctuary. The Page No.8 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 right of way to the petitioner's Estate is a recognized one which is available from time immemorial. The learned counsel further refuted the submission of the learned Additional Advocate General relying on the Advocate Commissioner's report which was referred in W.A.(MD).No.671 of 2019. The report confirms that there is an access upto Mamra Odai along alternate path. Thus, the petitioner's case is that an alternative motorable access way to his Estate is available. The entire Western Ghats of Tirunelveli Forest Division was declared as “Nellai Wildlife Sanctuary” under Section 18 of Wildlife Protection Act, 1972 in the year 2015 vide G.O.Ms.No.12 E&F dated 12.01.2015.
7.In the present case, the notification is dated 12.01.2015, hence the State Government is bound to consider the petitioner's request for acquiring the land and till such time, the petitioner may be permitted to use vehicular transport to gain access to his private patta land. It is further submitted that even in the counter filed by the 4th respondent it is admitted that the petitioner has the right of way starting from the western boundary of S.F.No. 265 of Village No.1, Thirumalapuram Village which runs through the Ullar beat and as per the Government Notification No.21 dated 08.01.1980, only Page No.9 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 1.5 meters or 5 feet width as right of way available in which no vehicular movement is possible except walking by foot is not proper. Though it is stated that using of four wheel drive vehicle is a risky proposition, since the right of way permitted is too small and sloppy to permit the same. The 5 feet width path way is sufficient for movement of vehicles, that being the case, the petitioner can very well be permitted to use the vehicle, of course with some restriction and time limit.
8.The petitioner recently sent a representation on 13.07.2022 seeking permission only on three occasions a month to climb up and come down by suitable vehicle transport to carry servants, saplings, organic manure, harvested produce as well as drinking water, rations and medicine, during the day time from 8.00 a.m. to 5.00 p.m. on 1st, 10th and 20th of every month throughout the year and also in the case of emergency and during harvest season, of course with the permission of the forest officials.
9.The learned Additional Government Pleader appearing for the respondents 2 to 8 filed his counter and submitted that Ullar Beat of Sivagiri Range passes through three estates, namely, Kallakadai Melthottam, Page No.10 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 Naduthottam and Keelthottam. The petitioner owns an Estate in Keezhothoppu or Keezhthottam of Kallakadai in S.Nos.934/1, 927 and 929 in Sivagiri Part II Villae, Sivagiri Taluk, Tirunelveli District. During the recent perambulation of forest officials and Anti-poaching team, the evidences of cultivating Cardamom and other spices in that survey number for the past 25 years was found and there was no trace of any Coupe or Mud road now. There exists a road to Reserve Forests of Thalayanai Beat, Vasudevanallur Section of Sankarankoil Range. The Thalayani River bisects the jurisdiction of Sankarankoil and Sivagiri Range. The mud road is available only to a distance of 2 kms and there is no possibility of goods vehicle to reach the Keezhthottam estate as claimed by the petitioner. The present route to the North of Naiparai Saragam of Thalayani River and thereafter it is only a foot path, used for forest patrolling purposes. There is no right of way presently in the Sankarakoil @ Puliyanguid Range as claimed by the petitioner from Vasudevanallur Reserve Forest Boundary Gate. In the year 1991, part of Sankarakoil Range was bifurcated and formed as Sivagiri Range. Even before bifurcation, there is no right of way for Kallakadai Estate. It is further submitted that none of the vehicle except the Forest Department Patrolling vehicle is allowed or has right to enter Page No.11 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 through the Vasudevanallur Reserve Forest Boundary gate, since the petitioner has no right of way through this route, he cannot commute with his own vehicle through this path. Hence, it is not proper to ask the forest official stationed at Thalayanai for a gate key for which the petitioner has no right.
10.The Anti-poaching shed was constructed under Tamil Nadu Biodiversity Conservation and Greening Project during the year 2015-2016 near Theethapari Saragam of Sankarankoil Range for the purpose of enhanced forest protection by the forest officials during the regular combing and anti-poaching operations. The metalled road leading from Vasudevanallur Reserve Forest Boundary gate to the Anti-poaching shed is for forest staff patrolling purpose use only and not to be used by the Keezhthottam estate owners/labours. The gate can be opened and closed only for the patrolling team with vehicles for a certain distance and foot patrolling thereafter inside the forest and no private person has right to ask the key or to open the gate. The Forest Range Officer, Sivagiri informed the estate people/owners to get a formal sanction to use the way of 5 feet width starting from western boundary of S.F.No.265 of village No.1, Page No.12 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 Thirumalapuram village which runs through Ullar Beat. The petitioner possess only 1.5 m or 5 feet width as right of way in which no vehicular movement is possible except walking by foot. Using of four wheel drive is a risky proposition since the right of way permitted is too small and sloppy to permit the same. Even though if the path exist before the enactment of Forest Conservation Act, 1980, it is necessary to obtain permission to maintain or repair of the existing pathway which traverses through Reserve Forest of this Wildlife sanctuary from the competent authority in the Forest Department. Presently, the road is in a damaged condition with lot of bushes grown around, rocks fallen on the pathway making it unfit for vehicle movement.
11.Further, there was increase in movement of wild animals in the recent years. Recent census was taken wherein good number of Tiger, Leopard, Wild Dog, Sloth Bear, Elephants were recorded during the phase IV monitoring of synchronized Tiger Census. The natural habitat and Eco- system of Nellai Wildlife Sanctuary and adjoining with Periyar Tiger Reserve would get disturbed by usage of vehicular movement. Hence, he prayed for dismissal of this petition since there is no right of way in Sivagiri Page No.13 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 Range and only 5 feet right of way is available which is not suitable for vehicular movement.
12.Considering the submissions made and on perusal of the materials placed before this Court, it is seen that as per G.O.Ms.No.21 dated 08.01.1980, there mentioned a pathway to approach the petitioner's Estate. Admittedly, the petitioner is owning a private forest area which is now declared as Sanctuary. The petitioner purchased the property in the year 1990, prior to his purchase, the cultivation of Cardamom and other spices are not disputed. These spices are seasonal. The usage of pathway is not denied. The only objection raised by the Forest officials appears to be usage of vehicles which would disturb the serene forest atmosphere which would greatly affect the wildlife both flora and fauna. The petitioner seeking permission to use the motorable road used by the forest officials cannot be sought as a matter of right. The right of way to the petitioner's Estate is only a pathway and not a motorable road. The width of the pathway is only 1.5 meters approximately 5 feet and the mud path is now covered with bushes and fallen rocks, make it impossible for movement of vehicles in that path. Further, it is also seen that it is a mud, risky and Page No.14 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 sloppy path not accessible by motorable vehicles. The forest officials can permit the petitioner if proper approval is obtained ensuring that there is no damage to flora and fauna. Further, the adjacent estate owner were given permission to use the motorable vehicle in W.P.(MD)No.23167 of 2018. On parity, the petitioner can also avail the same benefit. Though a writ appeal was filed against the order passed in W.P.(MD).No.23167 of 2018 in W.A. (MD).No.671 of 2017, there is no interim or restriction order. Hence, this Court is of the view that the petitioner can use the pathway and use his motorable vehicle, of course after getting permission from the concerned forest officials. It is open to the forest officials to take steps to acquire the petitioner's private forest area, if they so desire, as in the case of Periyar Valley Tiger Project.
13.With the above observations, the writ petition stands disposed of. No costs. Consequently, the connected Miscellaneous Petition is closed. No costs.
29.09.2022 Speaking Order / Non-Speaking Order Internet : Yes / No Index : Yes / No Page No.15 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 cse Page No.16 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 To
1.Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhavan, Jorbagh Road, New Delhi – 110 003 by its Secretary.
2.The Principal Chief Conservator of Forests, Department of Forests, Government of Tamil Nadu, No.1, Panagal Building, Jenis Road, Saidapet, Chennai – 600 015.
3.The Chief Conservator of Forests, Tirunelveli Division, NGO Colony, North Main Road, Tirunelveli – 627 009.
4.The District Forest Officer, Tirunelveli Division, NGO Colony, North Main Road, Tirunelveli – 627 009.
5.The Ranger, Sivagiri Range, Sivagiri, Tirunelveli District.
6.The Forester, Sivagiri Range, Sivagiri, Tirunelveli District.
7.The Ranger, Puliyangudi Range, Puliyangudi, Tirunelveli District.
8.The Forest Watcher, Puliyangudi Range, Puliyangudi, Tirunelveli District.
Page No.17 of 18 https://www.mhc.tn.gov.in/judis W.P(MD)No.24569 of 2018 M.NIRMAL KUMAR, J.
cse Pre-delivery order made in W.P(MD)No.24569 of 2018 29.09.2022 Page No.18 of 18 https://www.mhc.tn.gov.in/judis