Kerala High Court
Subhadra Krishnankutty vs The Kerala Forest Department on 9 April, 2019
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
WP(C).No. 26306 of 2017
PETITIONERS:
1 SUBHADRA KRISHNANKUTTY
W/O.KRISHNANKUTTY, AGED 58 YEARS, RESIDING AT
CHOOLAKKAL HOUSE, YOOKALI CHELACHUVADU,
NADUVATTOM PO, MALAYATTOOR, PIN 683 574.
2 SHEEBA AJI
W/O.AJI, AGED 35 YEARS, RESIDING AT CHOOLAKKAL
HOUSE, YOOKALI CHELACHUVADU, NADUVATTOM PO,
MALAYATTOOR, PIN 683 574.
3 BIJU
S/O.THANKAPPAN, AGED 40 YEARS, RESIDING AT
AVOLIPILLY HOUSE, YOOKALI CHELACHUVADU,
NADUVATTOM PO.
4 MADHAVI WO.NARAYANAN AGED 60 YEARS
RESIDING AT KARYATAN HOUSE, YOOKALI
CHELACHUVADU, NADUVATTOM PO, MALAYATTOOR, PIN
683 574.
5 AJI
W/O.BIJU, AGED 35 YEARS, RESIDING AT AVOLIPILLY
HOUSE, YOOKALI CHELACHUVADU, NADUVATTOM PO,
MALAYATTOOR, PIN 683 574.
6 AJI
S/O.KRISHNANKUTTY, AGED 40 YEARS, RESIDING AT
CHOOLAKKAL HOUSE, YOOKALI CHELACHUVADU,
NADUVATTOM PO, MALAYATTOOR, PIN 683 574.
W.P.(C).No.26305/18& con.cases
2
7 T.T.REGHU
AGED 40 YEARS, RESIDING AT THOTTIPARAMBIL
HOUSE, YOOKALI CHELACHUVADU, NADUVATTOM PO,
MALAYATTOOR, PIN 683 574.
8 KARYATAN
S/O.NARAYANAN, RESIDING AT KARYATAN HOUSE,
YOOKALI CHELACHUVADU, NADUVATTOM PO,
MALAYATTOOR,
PIN 683 574.
9 SALJI
W/O.SURA KARYATAN, RESIDING AT KARYATAN HOUSE,
YOOKALI CHELACHUVADU, NADUVATTOM PO,
MALAYATTOOR, PIN 683 574.
BY ADVS.
SRI.K.RAJESH SUKUMARAN
SRI.P.K.SURESH KUMAR (SR.)
RESPONDENTS:
1 THE KERALA FOREST DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001,
REP. BY ITS SECRETARY
2 THE SECRETARY TO GOVERNMENT
THE IRRIGATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.
3 THE DIVISIONAL FOREST OFFICER
MALAYATTOOR DIVISION, KODANADU PO, PERUMBAVOOR
PO, ERNAKULAM DISTRICT, PIN 683 544.
4 STATE OF KERALA
REP. BY ITS CHIEF SECRETARY, GOVERNMENT OF
KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695
001.
W.P.(C).No.26305/18& con.cases
3
5 THE CHIEF ENGINEER
IRRIGATION DEPARTMENT, PROJECT -2, OFFICE OF
THE CHIEF ENGINEER, THIRUVANANTHAPURAM
6 THE SUPERINTENDING ENGINEER
IRRIGATION DEPARTMENT, OFFICE OF THE
SUPERINTENDING ENGINEER, PROJECT CIRCLE,
KOLLICKAL, PIRAVAM, ERNAKULAM DISTRICT
7 THE EXECUTIVE ENGINEER
EDAMALAYAR IRRIGATION PROJECT, DIVISION NO.1,
ANGAMALY, ERNAKULAM DISTRICT.
8 THE ASSISTANT EXECUTIVE ENGINEER
IIP BHOOTHATHANKETTU SUB DIVISION,
BHOOTHATHANKETTY, KOTHAMANGALAM, ERNAKULAM
DISTRICT.
9 SUBIN GEORGE
AGED 30 YEARS, S/O.GEORGE, EDATHALA HOUSE,
NEELESWARAM PO, KALADY, ERNAKULAM DISTRICT
BY ADVS.
SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2019, ALONG WITH WP(C).31390/2017, WP(C).32033/2017,
WP(C).39136/2017 & WPC NO.36926 OF 2018, THE COURT ON
9.4.2019 DELIVERED THE FOLLOWING:
W.P.(C).No.26305/18& con.cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
WP(C).No. 31390 of 2017
PETITIONER:
SARATHCHANDRAN P.C.
AGED 26 YEARS
PEEDIAMCHERRY HOUSE,NEELESHWARAM
P.O.,MALAYATTOOR, ERNAKULAM DISTRICT.
BY ADVS.
SRI.JUSTINE JACOB
SRI.K.S.ARUN KUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVT.,FOREST
DEPARTMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM 1.
2 THE DIVISIONAL FOREST OFFICER
MALAYATOOR, KODANADU P.O.,ERNAKULAM DISTRICT.
3 THE CHIEF ENGINEER
WATER RESOURCE DEPARTMENT,GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM -1
4 MALAYATOOR - NEELESWARAM GRAMA PANCHAYAT
NEELESWARAM P.O., KALADY,ERNAKULAM DISTRICT,
REPRESENTED BY ITS SECRETARY.
W.P.(C).No.26305/18& con.cases
5
5 SUBIN GEORGE
S/O.GEORGE, AGED 29 YEARS,EDATHALA HOUSE,
NEELESWARAN P.O.,KALADY, ERNAKULAM DISTRICT.
BY ADVS.
SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
SRI.ANOOP.V.NAIR
SRI.S.K.ADHITHYAN
DR.K.P.SATHEESAN (SR.)
SRI.K.SUDHINKUMAR
SRI.MUHAMMED IBRAHIM ABDUL SAMAD
SRI.P.MOHANDAS (ERNAKULAM)
SRI.SABU PULLAN
SRI.S.VIBHEESHANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2019, ALONG WITH WP(C).26306/2017, WP(C).32033/2017,
WP(C).39136/2017 & WPC NO.36926 OF 2018, THE COURT ON
9.4.2019 DELIVERED THE FOLLOWING:
W.P.(C).No.26305/18& con.cases
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
WP(C).No. 32033 of 2017
PETITIONER:
SUBIN GEORGE
AGED 30 YEARS, S/O. GEORGE, EDATHALA HOUSE,
NEELESWARAM P.O, KALADY,ERNAKULAM DISTRICT
BY ADVS.
SRI.ANOOP.V.NAIR
SMT.M.SRUTHI DAS
SRI.M.V.SURESH (KANNUR)
SRI.V.K.SREEJITH
SRI.V.MANOJKUMAR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENT,FOREST DEPARTMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM 695 001
2 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENT,IRRIGATION DEPARTMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM 695 001
W.P.(C).No.26305/18& con.cases
7
3 THE DIVISIONAL FOREST OFFICER
MALAYATTOOR DIVISION, KODANADU P.O,ERNAKULAM
DISTRICT, PIN 683544
4 THE CHEIF ENGINEER
IRRIGATION DEPARTMENT, PROJECT 2OFFICE OF THE
CHEIF ENGINEER, THIRUVANANTHAPURAM 695 001
5 THE FOREST RANGE OFFICER
FOREST RANGE OFFICENEEL;EESWARAM P.O, KALADY,
ERNAKULAM DISTRICT 685 542
6 THE SUPEERINTENDING ENGINEER
IRRIGATION DEPARTMENT,OFFICE OF THE
SUPERINTENDING ENGINEERPROJECT CIRCLE,
KOLLICKAL, PIRAVAM, ERNAKULAM DISTRICT 683540
7 THE CHIEF CONSERVATOR OF FOREST
OFFICE OF THE CHIEF CONSERVATOR OF FOREST
CENTRAL CIRCLE, THRISSUR 680 001
8 THE EXECUTIVE ENGINEER
EDAMALAYAR IRRIGATION PROJECTDIVISION
NO.1,ANGAMALY, ERNAKULAM DISTRICT 683541
9 THE ASSISTANT EXECUTIVE ENGINEER
IIP BHOOTHTHANKETTU SUB DIVISION,KOTHAMANGALAM,
ERNAKULAM DISTRICT 686 666
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2019, ALONG WITH WP(C).26306/2017, WP(C).31390/2017,
WP(C).39136/2017 & WPC NO.36926 OF 2018, THE COURT ON
9.4.2019 DELIVERED THE FOLLOWING:
W.P.(C).No.26305/18& con.cases
8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
WP(C).No. 39136 of 2017
PETITIONER:
SUBIN GEORGE
AGED 30 YEARS, S/O. GEORGE, EDATHALA
HOUSE,NEELEESWARAM P.O, KALADY, ERNAKULAM
DISTRICT.
BY ADVS.
SRI.ANOOP.V.NAIR
SMT.M.SRUTHI DAS
SRI.M.V.SURESH (KANNUR)
SRI.V.K.SREEJITH
SRI.V.MANOJKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
FOREST DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENT,IRRIGATION DEPARTMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
3 THE DIVISIONAL FOREST OFFICER
MALAYATTOOR DIVISION, KODANADU P.O, ERNAKULAM
DISTRICT, PIN - 683 544.
W.P.(C).No.26305/18& con.cases
9
4 THE CHIEF ENGINEER
IRRIGATION DEPARTMENT, PROJECT - 2,OFFICE OF
THE CHIEF ENGINEER,
THIRUVANANTHAPURAM - 695 001.
5 THE FOREST RANGE OFFICER
FOREST RANGE OFFICE NEELEESWARAM P.O,
KALADY,ERNAKULAM DISTRICT - 683 574.
6 THE SUPERINTENDING ENGINEER
IRRIGATION DEPARTMENT, OFFICE OF THE
SUPERINTENDING ENGINEER, PROJECT CIRCLE,
KOLLICKAL, PIRAVAM,
ERNAKULAM DISTRICT - 686 664.
7 THE CHIEF CONSERVATOR OF FOREST
OFFICE OF THE CHIEF CONSERVATOR OF FOREST,
CENTRAL CIRCLE, THRISSUR - 680 001.
8 THE EXECUTIVE ENGINEER
EDAMALAYAR IRRIGATION PROJECT, DIVISION
NO.1,ANGAMALY, ERNAKULAM DISTRICT - 683 572.
9 THE ASSISTANT EXECUTIVE ENGINEER
IIP SUB DIVISION - I, ANGAMALY,
ERNAKULAM DISTRICT - 683 572.
10 THE SECRETARY
MALAYATTOOR-NEELESWARAM GRAMA PANCHAYAT,
NEELEESWARAM P.O,KALADY,
ERNAKULAM DISTRICT - 683 574.
11 THE CHIEF SECRETARY
GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
BY ADVS.
SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
SRI.SANDESH RAJA.K. SPL. G.P. FOREST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2019, ALONG WITH WP(C).26306/2017, WP(C).32033/2017,
WP(C).31390/2017 & WPC NO.36926 OF 2018, THE COURT ON
9.4.2019 DELIVERED THE FOLLOWING:
W.P.(C).No.26305/18& con.cases
10
= = = = = = = = = = = = = = =
W.P.(C).Nos.26306,31390,32033,
39136 of 2017 and 36926 of 2018
= = = = = = = = = = = = = = = =
JUDGMENT
1. The issue raised in these writ petitions is with regard to the right of usage of the Idamalayar Irrigation Project (IIP) Main Canal Bund Road by the petitioners herein. The petitioners claim to be the residents of the locality. The petitioner in W.P. (C).No. 32033 of 2017 and W.P.(C).No.39136 of 2017 is operating a Drum Mixing Plant in the property lying on the side of the IIP Canal Bund Road. He challenges the communications preventing the use of the IIP Canal Bund Road for non-forest purposes on the ground that he has no other access to his property. The petitioner in W.P. (C).No.36926 of 2018 states that he owns property which is used for storing construction equipments and supplies, while W.P.(C).No.31390 of 2017 is filed by a resident of the locality seeking the implementation of Exhibit P2 communication of the Central Government directing that action may be taken against the operation of the tar mixing plant by the petitioner in W.P.(C).Nos.32033 and 39136 of 2017. The petitioners in W.P.(C).No.26305/18& con.cases 11 W.P.(C).Nos.26306 of 2017 nine in number, contend that they are residents of the area and have the right to access their residential properties, through the IIP Canal Bund Road.
2. Heard Sri.P.K.Suresh Kumar, learned Senior Counsel, Sri.N.Krishna Prasad, Sri. Justin Jacob, Sri.Anoop V. Nair, learned counsel for the petitioners and Sri.Sandesh Raja, the learned Special Government Pleader.
3. The land in question was initially forest land. The petitioners contend that it was handed over to the irrigation department for the purpose of construction of the Idamalayar Irrigation Project. At the outset, the learned counsel appearing for the petitioner in W.P.(C).No.36926 of 2018 and the learned senior counsel for the petitioner in W.P.(C).No. 26306 of 2017 would contend that there is no question of using the road for any commercial purpose and that the road is sought to be used only to reach the residential or commercial properties owned by the petitioners. It is stated that no commercial activities are being undertaken on the road in question and that in the facts and circumstances and the permissions granted by the Irrigation Department, there can be W.P.(C).No.26305/18& con.cases 12 no interdiction against the petitioners for using the road for access to their properties as has been done previously. Relying on the provisions of Section 24 of the Kerala Forest Act, the learned Senior Counsel would contend that where the road was being used by the petitioners for access to their properties, such continued use is liable to be permitted. It is stated that the breaking up or clearing of forest lands, as provided in Section 2 of the Act would arise only at the time of clearing of the forest land and when the pathway is initially formed. It is contended that the user of the pathway by residents of the area for access to their properties would not amount to user for non-forest purpose, as provided in Section 2. It is stated that the commercial activities of the petitioners, if any, are carried out with all due permissions from the authorities and there can be no interdiction against the use of the road by the petitioners for access to their properties on the ground that the petitioners are carrying on commercial activities.
4. The learned Counsel places reliance on the decision of the Apex Court in State of Himachal Pradesh and another v. Umed Ram Sharma and others [AIR 1986 SC 847] to contend that the W.P.(C).No.26305/18& con.cases 13 right of access to the properties and existence of roads in hilly areas in reasonable conditions is an element of the right of the inhabitants of such areas to life as guaranteed under Article 21.
5. Sri.Anoop V.Nair, learned counsel for the petitioners in W.P. (C).Nos.32033 of 2017 and 39136 of 2017 would contend that his client has no other means of access to property other than the IIP Canal Bund Road. The learned counsel relied on a decision of the Apex Court in State of Uttarakhand and others v. Kumaon Stone Crusher [2017 KHC 6691] to contend that merely because both sides of a road are declared as protected forest, the road itself could not become a protected forest. The learned counsel also relies on the decisions of the High Court of Madras in WP(MD) No.20705 of 2016 and Writ Appeal No.1375 of 2012 and connected cases to contend that use of pre-xisting pathways, even for vehicular traffic, cannot be interdicted without providing alternate means of access. The decision of the Apex Court in State of Bihar v. Banshi Ram Modi and others [AIR 1985 SC 814] to contend that pre-existing rights, which were in force as on W.P.(C).No.26305/18& con.cases 14 date of coming into force of Forest Conservation Act of 1980 are saved. In the said decision the Apex Court construing the language of Section 2 in detail held that once the forest land is broken up or cleared with permission as provided in Section 2 or before such provision came into force, no fresh permission for user is required.
6. Detailed counter affidavits have been placed on record by the Forest Department of the Government of Kerala. It is contended by the learned Special Government Pleader that the property is undeniably forest land. On application preferred by the Irrigation Department, permission had been granted for usage of the properties for the specific purpose provided therein by the Central Government. The orders of permission dated 10.7.1997 are produced along with the counter affidavit. It is stated that the orders specifically provided that the nature of the land would undergo no change and that the property would remain forest land. It is stated that the respondents have objected only to the use of a short portion of the road through the forest land and that all the petitioners have W.P.(C).No.26305/18& con.cases 15 alternate means of access to their properties through the Manappattuchira PWD road. It is contended by the learned Government Pleader that the Commission taken out in these writ petitions would clearly show that the petitioners are not depending exclusively on the IIP Bund Road for access to their properties. It is, therefore, contended that the provisions of Section 24 of the Kerala Forest Act would have no application, since the IIP Bund Road was never the sole means of access of the petitioner to their properties.
7. The learned Special Government Pleader would contend that the orders under challenge in these writ petitions are those interdicting the use of a road built exclusively through forest land for any other purposes. It is submitted that it is not in dispute that the entire property was forest land. It is stated that the permission to use the forest land had been granted on specific conditions by the Union Government. The primary of such conditions was that the user would not change the nature of the land. It is stated that agreements entered into by the irrigation department and judgments obtained without the W.P.(C).No.26305/18& con.cases 16 forest department on the party array cannot have the effect of obliterating the character of the land in question as forest land. It is contended that the land is not surrendered to the irrigation department and is regularly under the monitoring process of the Government of India and compliance reports have to be submitted by the State Forest Department to the Union Government with regard to the compliance of the conditions stipulated in the orders of the Union Government under Section 2 of the Forest (Conservation) Act. It is contended that the irrigation department had been permitted to use the forest land for the specified purpose as stated in the order of the Central Government alone and that the land can be used for no other purpose. It is stated that most of the petitioners have clear access to their properties through the Manappattuchira PWD road. It is stated that a bridge has already been constructed across the IIP Canal at Yookali junction from where the Manappattuchira PWD road begins and that all the petitioners have proper means of access to their properties through the Manappattuchira PWD road. It is contended that even in the case of the petitioner in W.P. W.P.(C).No.26305/18& con.cases 17 (C).Nos.32033 of 2017 and 39136 of 2017, there is no other access to the property, since what is being operated in the property is a tar mixing plant and the user of the IIP Canal Bund Road is for a commercial activity, there has to be specified prior permission obtained for the said purpose from the Union of India before the road is put to use by the petitioner, it is contended.
8. The learned Special Government Pleader would place reliance of decisions of this Court in W.P.(C).No.33526 of 2017 to contend that where commercial activities are carried out and transportation of boulders from a quarry is made through a forest land, this amounts to commercial activity in forest land and is liable to be interdicted by the Government. Decisions of the Apex Court in Ambica Quarry Works v. State of Gujarat and others [1987 KHC 836] and One Earth One Life v. Ministry of Environment and Forest and others [2018 (4) KLT 827] State of Kerala v. New World Investment (P) Ltd and others [2015 KHC 7103] and of the High Court of Karnataka in Subramanya H.K and others v. M.Shekar W.P.(C).No.26305/18& con.cases 18 Shetty and others [2015 KHC 2022] are relied on to contend that prior approval of the Central Government is mandatory by virtue of Section 2 of the Forest (Conservation) Act, 1980 for any use of forest land for non-forest purpose. It is contended that even where prior approval exists, the non-forest use can be only be the use specified in the prior approval and none other. It is contended that even in the case of the petitioner in in W.P.(C).Nos.32033 of 2017 and 39136 of 2017, there is no other access to the property, since what is being operated in the property is a tar mixing plant and the user of the IIP Canal Bund Road is for a commercial activity, there has to be specified prior permission obtained for the said purpose from the Union of India before the road is put to use by the petitioner, it is contended.
9. The contention of the petitioners is that the petitioner had been accessing their properties through the Chelachuvadu road which starts from the PWD road and proceeds towards Malayattooor and Sebiyoor. It is contended that during the course of construction of IIP Main Canal, a part of W.P.(C).No.26305/18& con.cases 19 Chelachuvadu Road had been obliterated by the Irrigation Department and the access of the petitioners was lost. Though the Irrigation Department had initially proposed to construct a bridge to connect the Chelachuvadu road with the PWD road, the proposal was dropped and the IIP Main Canal Bund Road was opened as an access to the residents and property owners of the locality as a public road. It is contended that the forest department has no right or title over the property, since the property had been handed over to the irrigation department and the petitioners are using the bund road with the permission of the Irrigation Department.
10.I have considered the contentions advanced as well as the pleadings placed on record and the precedents cited. Section 2 of the Forest (Conservation) Act, 1980 reads as follows:-
" Restriction on the de-reservation of forests or use of forest land for non- forest purpose.--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 W.P.(C).No.26305/18& con.cases 20 thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose; 1[(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 of using it for reafforestation.
Explanation-- 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, spices, 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."
11.Pursuant to an application preferred by the State Government, an order under Section 2 has been passed by the Central Government which is produced as Exhibit R3(a) along with the counter affidavit filed by the 3rd respondent in W.P. (C).No.26306 of 2017. The relevant portion of Exhibit R3(a) W.P.(C).No.26305/18& con.cases 21 reads as follows:-
"After careful consideration of the proposal of the State Government and on the basis of the recommendation of the above mentioned Advisory Committee, the Central Govt. hereby conveys its approval under Section 2 of the Forest (Conservation) Act, 1980 for diversion 115.047 Ha of forest land in Ernakulam and Idukki districts for construction of Main Canal of Idamalyar Irrigation Project subject to the following conditions:-
i) Total status of forest land shall remain unchanged.
xxx xxx
viii) The forest land shall not be used for any other purposes than specified in the proposal.
ix) Any other condition which the state Government may stipulate from time to time in the interest of afforestation and protection of forests."
Pursuant thereto, the Government of Kerala in its Forest and Wild Life Department had issued Government Order dated 11.8.1997. The said order communicated the permission granted for diversion of forest land in the Idamalayar Irrigation Project on the same conditions as specified in the order of the Government of India.
12.Section 24 of the Kerala Forest Act reads as follows:-
W.P.(C).No.26305/18& con.cases 22 "Power to stop ways and watercourse in Reserved Forest:-The Chief Conservator may, from time to time, with the previous sanction of the Government, stop any public or private way or water-course in a Reserved Forest, provided that a reasonable convenient substitute for the way or watercourse so stopped already exists or has been provided or constructed in lieu thereof."
13.Section 24 of the Kerala Forest Act is applicable in a case where there is a pre-existing right of way which was available to the petitioners before the land is declared as a reserve forest. In the instant case, it is not in dispute that the property in question through which the forest road passes is a reserve forest. There is no pleading as to a pre-existing right of way to the petitioners through the said road which was in existence before the date of the Government Order sanctioning the transfer to the Irrigation Department for the project. Even if that be so, the right under Section 24 would be applicable only in case the petitioners have no right of way other than through the forest land or the forest road in question.
W.P.(C).No.26305/18& con.cases 23
14.From a consideration of the Advocate's Commissioner's report, it appears that all the petitioners, except the petitioner in in W.P.(C).Nos.32033 of 2017 and 39136 of 2017 have other means to reach their properties. The Advocate Commissioner has reported as follows:-
"As regards to access to enter into respective properties of the petitioners are concerned, I find that they can reach their residences either through IP Canal Road or the Manappattuchira PWD Road, as I have mentioned earlier. "
The grievance of the petitioners in W.P.(C).No. 26306 of 2017, as noted by the Commissioner, is only that they will have to travel longer distances to reach places like Sebiyoor and Kottuva through the Manappattuchira PWD road.
15.The learned counsel for the petitioners would contend that they were using the forest road for access to their properties and that a separate bridge was not built over the canal for their access on the specific understanding that they can use the Bund Road for access to their properties. W.P.(C).No.26305/18& con.cases 24
16.The learned Special Government Pleader would on the other hand contend that the Commissioner's Report would make it abundantly clear that the petitioners in W.P.(C).No.26306 of 2017 have clear access to their property and that they cannot raise a contention that they are entitled to use a forest road for such access, since the said road is not their only means of access. It is stated that a minor inconvenience or a slightly longer distance to travel cannot be a ground to contend that a forest road is to be opened to use, as a matter of right.
17.In the case of the petitioner in W.P.(C).Nos.32033 of 2017 and 39136 of 2017, it is submitted that what is demanded is a commercial use of the property. This Court in W.P. (C).No.33526/2017 has held that transportation of boulders from a quarry undoubtedly amounts to commercial use of the forest road and as such the use is not permissible in terms of law. In appeal, by judgment dated 21.5.2018 (W.A.No.971 of 2018), a Division Bench of this Court held that any pre- existing right of user of a road through a forest property is liable to be established before a claim under Section 24 can be W.P.(C).No.26305/18& con.cases 25 raised. In the instant case, the respondents are not blocking the road for all users. It is only the commercial user of the road that is being prevented by the respondents through a road which is admittedly built through forest land on the strength of a restricted permission granted by the Central Government.
18.In the above view of the matter, the communications issued preventing the use of the IIP Canal Bund road for access to the petitioner's tar mixing plant cannot be said to be illegal or unsustainable. The decisions relied on by the petitioner, including those of the High Court of Madras, are not applicable in the petitioner's case, since the property is admittedly forest land and no pre-existing right of way has been established by the petitioner. The petitioner would have to establish his rights in proper proceedings and the impugned orders in W.P. (C).Nos.32033 of 2017 and 39136 of 2017 therefore cannot be said to be illegal or unsustainable. It is clear from the pleadings and the documents placed on record that the property was forest land and the permission granted to the State Government to use the land for the purpose of construction of the irrigation canal W.P.(C).No.26305/18& con.cases 26 would not change the nature of the property. The property remains as a forest land. In such a case, the use of the IIP Canal Bund Road through the forest land for access to the property of the petitioners could clearly be only on the basis of the permission granted by the Forest Department. The petitioners have not succeeded in establishing any pre-existing right of way in the property in question.
19.Once it is found that the user of the property is permissive, the respondents cannot contend that they have to be permitted to use it regardless of there being other means of access. The permission granted to residential users, being a voluntary act of the Forest Department, I am of the opinion that the pleas raised in the writ petitions that the petitioners are entitled to use the road as a matter of right, regardless of the purpose for which their properties are being put to use, cannot be accepted. Since the petitioners have alternate means of access to their properties or are seeking to enforce the right of access for commercial purpose, I am of the opinion that the prayers raised in these writ petitions cannot be granted. W.P.(C).Nos.26306, 32033, 39136 of 2017 and 36926 of 2018 fail and are accordingly dismissed. W.P.(C).No.26305/18& con.cases 27 W.P.(C).No.31390 of 2017 is disposed of directing the 4 th respondent to take up, consider and pass appropriate orders on Exhibit P7 representation preferred by the petitioner, within a period of one month from the date of receipt of a copy of this judgment, with notice to the petitioner as well as the 5 th respondent.
sd/-
Anu Sivaraman, Judge sj W.P.(C).No.26305/18& con.cases 28 APPENDIX OF WP(C) 26306/2017 PETITIONER'S EXHIBITS:
ANNEXURE C1 TRUE COPY OF THE NOTICE DATED 26/04/2018.
ANNEXURE TRUE COPY OF THE WORK MEMO DATED 30/04/2018.
EXHIBIT P1 TRUE COPY OF THE SKETCH SHOWING THE LIE AND NATURE OF THE IIP MAIN CANAL BUND ROAD EXHIBIT P2 THE TRUE COPY OF THE MASS PETITION DATED 1.3.2013 FILED BY THE LOCAL RESIDENTS BEFORE THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE REPLY LETTER BEARING NO. A5-419/2016 DATED 13.7.2016 ISSUED BY THE 7TH RESPONDENT UNDER RELEVANT PROVISIONS OF THE RTI ACT EXHIBIT P4 THE TRUE COPY OF THE AGREEMENT BEARING NO. 1/IIP/2016-17 DATED 14.2.2017 EXECUTED BETWEEN THE RESPONDENT 7 AND 9 EXHIBIT P5 TRUE COPY OF THE LETTER BEARING NO.C2- 2265/17(II) DATED 13.7.2017 ISSUED BY 3RD RESPONDENT TO THE 5TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE LETTER BEARING NO.K.R.1-12/2017 DATED 29/04/2017 ISSUED BY THE RANGE FOREST OFFICER TO THE 3RD RESPONDENT.
EXHIBIT P7 THE TRUE COPY OF THE CORRESPONDENCE NO.D/204-2013 DATED 07/07/2017 FORWARDED BY THE 7TH RESPONDENT TO THE 3RD RESPONDENT.
W.P.(C).No.26305/18& con.cases 29 APPENDIX OF WP(C) 31390/2017 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 18/4/2017 SUBMITTED BEFORE THE HON'BLE UNION MINISTER EXHIBIT P2 TRUE COPY OF THE LETTER DATED 9/5/2017 MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE, GOVERNMENT OF INDIA EXHIBIT P3 TRUE COPY OF THE REPORT DATED 3/7/2017 OF THE FOREST RANGE OFFICER, KALADY EXHIBIT P4 TRUE COPY OF THE LETTER DATED 13/7/2017 OF THE DFO EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.11071 OF 2017, DATED 6/4/2017 OF THIS HON'BLE COURT EXHIBIT P6 TRUE COPY OF LICENSE U/S. 236(3) OF KERALA PANCHAYATH RAJ ACT EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 13/7/2017 OF PETITIONER SUBMITTED BEFORE THE 4TH RESPONDENT PANCHAYATH.
RESPONDENT'S EXHIBITS:
EXHIBIT R2 A TRUE COPY OF THE ORDER NO.8-324/88-FC DATED 10/07/1997 OF GOVERNMENT OF INDIA.
ANNEXURE R2 B TRUE COPY OF THE ORDER GO(RT) NO.426/97/F&WLD DATED 11.08.1997 OF GOVERNMENT OF KERALA.
EXHIBIT R1(A). TRUE COPY OF THE ORDER NO.8-324/88-FC DATED 10.07.1997 OF GOVERNMENT OF INDIA.
EXHIBIT R1(B). TRUE COPY OF THE ORDER GO(RT) NO.426/97/F&WLD DATED 11.08.1997 OF GOVERNMENT OF KERALA.
W.P.(C).No.26305/18& con.cases 30 EXHIBIT R1(C). TRUE COPY OF THE ORDER NO.a4-704/204 dated 1.12.2017.
EXHIBIT R5 A TRUE COPY OF NOC DATED 23/01/2017 ISSUED BY THE DIVISIONAL FOREST OFFICER, MALAYATTOOR DIVISION.
EXHIBIT R5 B TRUE COPY OF REPORT DATED 29/04/2017. EXHIBIT R5 C TRUE COPY OF REPORT DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, MALAYATTOOR.
W.P.(C).No.26305/18& con.cases 31 APPENDIX OF WP(C) 32033/2017 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PERMISSIONS GRANTED BY VARIOUS AUTHORITIES INCLUDING THE FOREST DEPARTMENT EXHIBIT P2 TRUE COPY OF REPLY LETTER NO. A5- 419/2016 DATED 13-07-2016 ISSUED UNDER THE RELEVANT PROVISIONS OF THE RTI ACT EXHIBIT P3 TRUE COPY OF JUDGMENT IN W.P(C) NO 34411/2016 DATED 14-11-2016 EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14-02-2017 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER EXHIBIT P6 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND 8TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE QUESTIONAIRE AND ANSWEER RECEIVED UNDER RTI FROM FOREST DEPARTMENT DATED 14-08-2017 EXHIBIT P8 TRUE COPY OF THE REPORT ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 29-04-2017 EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY DFO MALAYATTOOR DATED 13-07-2017 EXHIBIT P10 TRUE COPY OF THE ADVOCATE COMMISSION REPORT IN OS NO.208/2017 EXHIBIT P10 A TRUE COPY OF THE PLAINT IN OS NO.308/2017
W.P.(C).No.26305/18& con.cases 32 EXHIBIT P11 TRUE COPY OF REPORT OF THE 5TH RESPONDENT SUBMITTED TO THE 3RD RESPONDENT BEFORE GRANTING EXHIBIT p1(C) EXHIBIT P12 TRUE COPY OF APPLICATION SUBMITTED UNDER RTI ACT BY THE PETITIONER AND THE REPLY RECEIVED FROM THE 3RD RESPONDENT'S EXHIBIT P13 TRUE COPY OF REPORT SUBMITTED BY THE 8TH RESPONDENT TO THE 3RD RESPONDENT DATED 7/7/2017 EXHIBIT P14 TRUE COPY OF PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE ROAD TARRED BY THE PETITIONER AS PER THE DIRECTION OF THE IRRIGATION DEPARTMENT EXHIBIT P14 A TRUE COPY OF PHOTOGRAPH SHOWING THE LIE AND NATURE OF THE REMAINING PORTION OF THE IIP MAIN CANAL BUND ROAD EXHIBIT P14 B TRUE COPY OF PHOTOGRAPH SHOWING THE DRUM MIX PLANT OF THE PETITIONER EXHIBIT P15 TRUE COPY OF LICENCE ISSUED BY THE SUPERINTENDING ENGINEER, ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA AND THE DETAILS OF THE WORKS DONE BY THE PETITIONER AT PRESENT.
W.P.(C).No.26305/18& con.cases 33 APPENDIX OF WP(C) 39136/2017 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PERMISSIONS GRANTED BY VARIOUS AUTHORITIES INCLUDING THE FOREST DEPARTMENT.
EXHIBIT P2 TRUE COPY OF REPLY LETTER NO.A5- 419/2016 DATED 13.07.2016 ISSUED UNDER THE RELEVANT PROVISIONS OF THE RTI ACT.
EXHIBIT P3 TRUE COPY OF JUDGMENT IN W.P(C) NO.34411/2016 DATED 14.11.2016.
EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14.02.2017 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND 8TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THJE QUESTIONNAIRE AND ANSWER RECEIVED UNDER RTI FROM FOREST DEPARTMENT DATED 10.08.2017.
EXHIBIT P8 TRUE COPY OF THE REPORT ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 29.04.2017.
EXHIBIT P8(A) TRUE COPY OF THE PERMISSION GRANTED BY THE FOREST DEPARTMENT IE BY THE 3RD RESPONDENT TO THE PETITIONER DATED 23.01.2017.
EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY DFO, MALAYATTOOR DATED 13.07.2017 EXHIBIT P10 TRUE COPY OF THE ADVOCATE COMMISSION REPORT IN O.S NO. 208/2017.
W.P.(C).No.26305/18& con.cases 34 EXHIBIT P10(A) TRUE COPY OF THE PLAINT IN O.S NO.308/2017 EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN WP(C) NO.32033/2017.
EXHIBIT P11(A) TRUE COPY OF THE INTERIM STAY EXTENTION ORDER DATED 09.11.2017.
EXHIBIT P12 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT AS WELL AS THE 8TH RESPONDENT CANCELLING THE AGREEMENT ENTERED UPON BETWEEN THE PETITIONER AND THE 8TH RESPONDENT DATED 01.12.2017.
EXHIBIT P13 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STRETCH OF THE ROAD USED BY THE PETITIONER AND THE RESIDENTS MAINLY AND THE STRETCH USED BY THE PUBLIC AT LARGE ON THE OTHER AREAS OF THE IIP MAIN CANAL BUND ROAD.
EXHIBIT P13(A) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STRETCH OF THE ROAD USED BY THE PETITIONER AND THE RESIDENTS MAINLY AND THE STRETCH USED BY THE PUBLIC AT LARGE ON THE OTHER AREAS OF THE IIP MAIN CANAL BUND ROAD.
EXHIBIT P13(B) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STRETCH OF THE ROAD USED BY THE PETITIONER AND THE RESIDENTS MAINLY AND THE STRETCH USED BY THE PUBLIC AT LARGE ON THE OTHER AREAS OF THE IIP MAIN CANAL BUND ROAD.
EXHIBIT P14 TRUE COPY OF THE RECEIPT SUBMITTED BY THE 8TH RESPONDENT TO THE 3RD RESPONDENT SHOWING THE ABOVE FACTS, DATED 07.07.2017.
W.P.(C).No.26305/18& con.cases 35 EXHIBIT P15 TRUE COPY OF THE REPORT ALONG WITH THE LOCATION SKETCH WHICH SHOWS THE CANAL BUND ROAD ALSO SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE QUESTIONNAIRE AND ANSWER RECEIVED BY ONE NIJO JOSE FROM THE 3RD RESPONDENT'S OFFICE DATED 10.08.2017.
EXHIBIT P17 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR GRANT OF PERMISSION /NOC EXHIBIT P18 TRUE COPY OF QUESTIONNAIRE SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT BY APPLICATION DATED 12/10/2017 AND ANSWER RECEIVED FROM THE 3RD RESPONDENT'S OFFICE.
EXHIBIT P19 TRUE COPY OF ANSWER RECEIVED UNDER RTI ACT EXHIBIT P20 TRUE COPY OF SKETCH ISSUED BY THE IRRIGATION DEPARTMENT SHOWING THE LIE AND NATURE OF THE PROPERTY OF THE PETITIONER EXHIBIT P21 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P22 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P23 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P24 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS W.P.(C).No.26305/18& con.cases 36 EXHIBIT P25 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P26 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P27 TRUE COPY OF BILLS AS WELL AS THE LOAN STATEMENTS ISSUED BY THE VARIOUS COMPANIES AND BANKS EXHIBIT P28 TRUE COPY OF QUESTIONNAIRE AND ANSWER OBTAINED BY THE PETITIONER FROM THE ASSISTANT ENGINEER, IIP SECTION NO.3/III, BHOTHATHANKETTU DATED 31/12/2018 EXHIBIT P29 TRUE COPY OF REPORT OF THE VILLAGE OFFICER DATED 27/4/2017 ISSUED TO THE RANGE FOREST OFFICER, KALADY.
EXHIBIT P30 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 1966 EXHIBIT P31 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 1999 EXHIBIT P32 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 2010 EXHIBIT P33 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 2013 EXHIBIT P34 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 2017 EXHIBIT P35 TRUE COPY OF SETTLEMENT DEED OF THE YEAR 2017 RESPONDENTS' EXHIBITS:
ANNEXURE R3(A) TRUE COPY OF THE ORDER NO.8-324/88-FC DATED 10/07/1997 OF GOVERNMENT OF INDIA. W.P.(C).No.26305/18& con.cases 37 ANNEXURE R3(B) TRUE COPY OF THE GO(RT) NO.426/97/F&WLD DATED 11/08/1997 OF GOVERNMENT OF KERALA.
ANNEXURE R3(C) TRUE COPY OF THE LETTER NO.F(C)A-
11.3/13/KER 240 DATED 13/06/2017.
True copy PS to Judge