IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 26846 of 2005(U) ---------------------------------------- PETITIONER: -------------------- SMT. MOLY SUNNY, W/O. E.M. SUNNY, EDATTUKARAN HOUSE, VARANDARAPPILLY P.O., TRICHUR DISTRICT. BY ADV. SRI.T.M.CHANDRAN RESPONDENTS: -------------------------- 1. GOVT. OF KERALA, REPRESENTED BY SECRETARY, REVENUE (P) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, CHALAKUDY DIVISION, CHALAKUDY. 3. THE TAHSILDAR (LAND ASSIGNMENT) UNIT II, TOWN HALL ROAD, TRICHUR. * ( 4. THE VILLAGE OFFICER, VELLIKULANGARA VILLAGE OFFICE, TRICHUR DISTRICT.) * THE VILLAGE OFFICER, VARANDARAPPILLY VILLAGE OFFICE, TRICHUR. CORRECTED AS PER ORDER IN I.A.17950/05 DTD. 7/12/05. 5. THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT, THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER (FOREST) SRI.RENJITH THAMPAN - R2 BY SRI.P.M.SATHEESH(ADV.COMMISSIONER) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26846/2005 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ASSIGNMENT DEED NO.1097/2005 DTD. 30/03/05 OF KODALI SUB REGISTRY. EXT.P2: COPY OF THE ORDER G.O.(MS) NO.399/09/RD DTD. 25/10/99 PASSED BY THE GOVT. EXT.P3: COPY OF THE ORDAER G.O.(MS) NO.461/99/RD DTD. 19/11/99 PASSED BY THE GOVT. EXT.P4: COPY OF THE DETAILS OF OCCUPANTS IN FOREST LAND IN TRICHUR DISTRICT PRIOR TO 1/1/77. EXT.P5: COPY OF THE PLAN PREPARED BY THE VILLAGE OFFICER. EXT.P6: COPY OF THE RELEVANT PORTION OF THE REGISTER ISSUED BY THE TAHSILDAR, MUKUNDAPURAM. EXT.P7: COPY OF PATTA DTD. 20/05/2000 IN FAVOUR OF OKKAVAYIL JANARDHANAN NO.B1.284/99. EXT.P8: COPY OF THE JUDGMENT DTD. 15/11/04 IN WP(C) NO.17730/04 PASSED BY THIS HON'BLE COURT. EXT.P9: COPY OF THE POSSESSION CERTIFICATE DTD. 16/07/05 ISSUED BY THE VILLAGE OFFICER, VARANDARAPPILLY. EXT.P10: COPY OF THE ORDER NO.172/05-06/4833/M3/05 DTD.25/06/05 PASSED BY THE RESPONDENT NO.5. EXT.P11: COPY OF THE LETTER NO.B2-9234/2005 DTD. 21/07/2005 ISSUED BY THE REVENUE DIVISIONAL OFFICER, TRICHUR. EXT.P12: COPY OF THE LETTER NO.753/C2/TDO/05 DTD. 20/06/05 ISSUED FROM THE MINING AND GEOLOGY DEPARTMENT, TRICHUR TO JANARDHANAN. EXT.P13: COPY OF THE CERTIFICATE NO.3822/05 ISSUED FROM THE VILLAGE OFFICE, VARANDARAPPILLY. EXT.P14: COPY OF THE NO OBJECTION CERTIFICATE NO.A2-4017/2005 DTD. 01/08/05 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, TRICHUR. Kss ..2/- ..2.... WPC.NO.26846/2005 U EXT.P15: COPY OF THE UNDERTAKING DTD. 01/06/2005 SUBMITTED BEFORE THE MINING DEPARTMENT. EXT.P16: COPY OF THE LETTER DTD. 23/03/93 SENT BY THE GOVT.OF INDIA TO GOVT. OF KERALA. EXT.P17: COPY OF THE LETTER DTD. 31/01/95 ISSUED BY THE CENTRAL GOVT. EXT.P18: COPY OF THE LETTER DTD. 19/11/99 ISSUED BY THE GOVT. OF KERALA. EXT.P19: COPY OF THE REPORT OF THE COMMITTEE AS PER G.O.(MS) NO.399/99/RD DTD. 25/10/99. EXT.P20: COPY OF THE COMPENSATORY AFFORESTATION PROGRAMME STATUS PAPER. EXT.P21: COPY OF THE PLAN ISSUED BY THE VILLAGE OFFICER, VARANDARAPPILLY. EXT.P22: COPY OF THE LICENCE ISSUED FROM THE KERALA FOREST DEPARTMENT TO SRI. ALAVIKUTTY. EXT.P23: COPY OF THE LETTER DTD. 27/04/04 ISSUED BY THE R.D.O., TRICHUR TO D.F.O., CHALAKUDY. EXT.P24: COPY OF THE LETTER DTD. 21/05/05 FROM THE FOREST CONSERVATOR TO PETITIONER'S HUSBAND. EXT.P25: COPY OF THE LETTER DTD. 18/10/03 SENT BY SRI.JANARDHANAN TO R.D.O. WITH COPIES TO D.F.O., CHALAKUDY. EXT.P26: COPY OF THE LETTER DTD. 20/09/05 SENT BY THE PETITIONER TO R.D.O., TRICHUR WITH COPIES TO D.F.O., CHALAKUDY. EXT.P27: COPY OF THE LETTER DTD. 13/11/2005 ISSUED BY THE FOREST RANGE OFFICER, VELLIKULANGARA FOREST RANGE TO THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT, THIRUVANANTHAPURAM. Kss ..3/- ...3..... WPC.NO.26846/2005 U RESPONDENT'S EXHIBITS & ANNEXURES: EXT.R2(A): COPY OF RESERVE NOTIFICATION PUBLISHED IN COCHIN GOVERNMENT GAZETTE PAAGE 84 TO 90. EXT.R2(B): COPY OF CERTIFICATE GIVEN BY THE VILLAGE OFFICER, VARANTHARAPALLY. ANNEXURE-1: COPY OF ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY. ANNEXURE R2(A): COPY OF CERTIFICATE ISSUED BY THE VILLAGE OFFICER, VARANTHARAPPILLY. /TRUE COPY/ P.A.TO JUDGE Kss S.SIRI JAGAN, J. ================== W.P.(C).No. 26846 of 2005 ================== Dated this the 27th day of August, 2008 J U D G M E N T The petitioner is aggrieved by the refusal on the part of the Forest Department of the Government of Kerala to permit him to use a forest road by the side of which the petitioner's property lies. The property was originally a forest land. Several persons encroached into the forest land and had been cultivating the land. One Okkavayil (Vakavayalil) Janardhanan was one such encroacher. In recognition of their long occupation of the land, although unauthorisedly, the Government decided to assign these lands to the encroachers invoking the provisions of the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 1.1.1977) Special Rules, 1993, to encroachers. Ext.P4 is the list of occupants of such forest lands prepared by the Special Tahsildar, Land Assignment, Trichur, for that purpose. Item No. 15 of that list is Okkavayil Janardhanan who was in occupation of 3.04 acres of land from 1964 onwards. The said land was assigned to the said Janardhanan. He mortgaged the property as security for loan taken by him from a co-operative bank. He w.p.c.26846/05 2 defaulted repayment of the loan. The bank enforced the security and ultimately the property was brought to sale through Court auction. The petitioner purchased the property in the Court auction and she became the absolute owner of the property. The petitioner and her husband are partners of a firm by name, “Victory Granite Metal”. The said firm applied for a quarrying lease for quarrying granite from the abovesaid property of the petitioner. By Exts.P10 and P11, the Government granted a quarrying lease to the said firm. The subject property lies by the side of a forest road branching out from the Mupliyam Vellarampadam road. The only access to the petitioner's property and other properties nearby assigned to other persons, is through this forest road. The petitioner wanted to use this road for the purpose of bringing in vehicles and taking out granite to be quarried from the property in those vehicles. For this purpose the petitioner sought passes from the Forest Department, which was denied to her. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “(a) to call for the records relating to Ext.P1 to P14. (b) to issue a writ of Mandamus or any other appropriate writ or w.p.c.26846/05 3 order directing the Respondent No.2 and his officers not to cause any obstruction to the vehicle to be used by the Petitioner and others along the road mentioned in P5 plan for removing granite, soil, etc. from the property extending to 3.04 acres in Sy. No.419/P of Mupliyam Village, Mukundapuram Taluk. (c) to issue a writ of Mandamus or any other appropriate writ or order directing the Respondent No.2 and his officers not to interfere with the peaceful possession and enjoyment of the property extending to 3.04 Acres in Sy.No.419/P of Mupliyam Village, Mukundapuram Taluk. (d) to issue a writ of Mandamus or any other appropriate writ declaring that the Forest Department has absolutely no right over the property extending to 3.04 Acres in Sy.No.419/P of Mupliyam Village, Mukundapuram Taluk. (e) to issue a writ of Mandamus or any other appropriate writ or order directing the Respondent No.2 and his officers to give compensation to the Petitioner and the lessees for the loss caused at the instance of Respondent No.2 and others.” 2. The contention of the petitioner is as follows: The Forest Department and, Mining and Geology Department are departments of Government of Kerala. The Mining and Geology Department issued a quarrying lease to the petitioner for quarrying granite from the property in question. They also collected money from the petitioner for the said lease. After granting the lease taking money from the petitioner, the Government, through the Forest Department, cannot indirectly prevent the operation of the quarry for which the Government itself granted a lease by refusing use of the forest road for w.p.c.26846/05 4 vehicular access to the quarry. The petitioner would further submit that there are several quarries by the side of the very same road and those quarry owners are issuing the very same road for bringing in and taking out vehicles to and from their quarries, without any objection whatsoever from the Forest Department. The petitioner further points out that by the side of the very same road, there are several houses, the owners of which are also using that road. The petitioner points out that at the instance of the petitioner, this Court had appointed an Advocate Commissioner to ascertain the above facts and the Commissioner had filed a report before this Court which would prove beyond doubt all the contentions of the petitioner in this regard. The petitioner, therefore, submits that the respondents are liable to be commanded by a writ of mandamus to permit the petitioner for bringing in and taking out vehicles through the forest road for the purpose of the quarrying operations in the land in question. 3. With the help of two counter affidavits filed in this case, the Special Government Pleader (Forest) would vehemently oppose the prayers in the writ petition. According to him, w.p.c.26846/05 5 notwithstanding the assignment of the land to the petitioner and others, the land continues to be forest land to which the Forest Conservation Act continues to be applicable. Section 2 of the Forest Conservation Act specifically prohibits all kinds of non- forest activities in forest land. He would point out that quarrying operations are clearly non-forest activities. In view of the specific prohibition in Section 2 of the Forest Conservation Act, no quarrying operations whatsoever can be permitted in the land in question without prior permission from the Central Government. Therefore, according to the Special Government Pleader, the petitioner cannot be granted permission to use the Forest road in question which belongs exclusively to the Forest Department, for vehicular traffic for the purpose of quarrying operations in the land in question. He would submit that the Forest Department has already requested the Mining and Geology Department to cancel all leases and permits for quarrying and mining in the area in question. The Special Government Pleader (Forest) therefore, would argue that the petitioner is not entitled to any reliefs prayed for in this writ petition. 4. I have considered the rival contentions in detail. w.p.c.26846/05 6 5. Before dealing with the rival contentions , I must refer to a disturbing aspect of this case. It is no secret that the forest wealth of this State is dwindling day-by-day. Everybody is mourning over the same. But unfortunately the Government is not taking appropriate steps, wherever they can, for the purpose of preserving whatever little forest wealth we are now left with. From the pleadings, particularly the sketch produced by the 2nd respondent along with the additional affidavit dated 19.7.2007 filed in this case it is clear that very near to the property in question by the side of the very same forest road, there are very valuable teak plantation of the year 1945 and bamboo plantation of 1992. If unrestricted vehicular traffic is permitted through this forest road, there is very imminent danger of these plantations also being left to the mercy of the forest mafia who are, as is evident from the recent happenings in the State, which have also been taken note of by this Court, very active in the State. In fact there are even wide spread allegations of forest officials siding with the forest mafia in plundering the forest wealth. Therefore, it is only in public interest that all non-forest activities be prohibited in the area in question. Quarrying certainly being a w.p.c.26846/05 7 non-forest activity, I am of opinion that such quarrying should be prohibited not only in this area but in all forest areas. But unfortunately the Government who is starved of funds and unable to find other means to raise money for the exchequer is selling the natural wealth of the State for the paltry sum realised from such quarrying leases. One Department cannot take the stand that protection of forests is not their business and they will issue leases and permits as long as the same are permissible under the legislation governing the same. It is high time each department realises the need to work together to protect the wealth of the nation particularly the forest wealth taking it as a joint responsibility instead of taking a non-co-operative attitude in such matters. When the Forest Department appraises the Mining and Geology Department of the necessity to prohibit quarrying in forest areas, the latter has a duty to take appropriate action thereon expeditiously in the better interests of the Sate. The Government has a duty to co-ordinate all its Departments to achieve this goal for which action has to be taken with utmost expedition instead of waiting until it is too late. 6. All the same, I am certainly bound to consider the w.p.c.26846/05 8 contention of the petitioner in this case, since it is another department of the very same Government, of which Forest Department is also a part, namely the Mining and Geology Department, who issued the quarrying lease to the petitioner. The report of the Commissioner shows that most of the allegations raised by the petitioner in respect of the subject matter are correct. The presence of the forest road is confirmed. It is also confirmed that there are 8 buildings by the side of the said road and that there are live quarries by the side of the very same road. The Commissioner found that there is no other access to the petitioner's property except through the forest road. Although the Commissioner could not detect vehicular traffic at the time of inspection through the said road, he learned from the workers working in the nearby quarries that the quarrying activities were stopped only for three days. Granite and other items from the quarries are being removed by lorries and other vehicles through the very same forest road is the information gathered by the Advocate Commissioner. The presence of a quarry in the petitioner's land is also confirmed. From the Commissioner's report, it is clear that the very same Forest w.p.c.26846/05 9 Department is not prohibiting (if not permitting) other quarry owners from using the very same Forest road although, the learned Special Government Pleader (Forests) vehemently disclaim any such inaction. In any event, after having issued a quarrying lease for consideration, to the petitioner by one Department of the very same Government, of which the Forest Department is also a part, I do not think that there is justice in preventing the petitioner from conducting the quarrying operations in the land in question by refusing permission to use the forest road leading to the quarry for vehicular traffic for quarrying operations. Therefore, I am of opinion that as long as the quarrying lease of the petitioner is current, there is no justice in denying the petitioner the use of the Forest road for the purpose of quarrying operations in the petitioner's land, especially since the petitioner has sufficiently proved that other quarry owners by the side of the very same road are using the same for the purposes of their quarries. . Accordingly, I direct the respondents to see that the petitioner is permitted to use the road for taking in and out vehicles for carrying out quarrying operations in the petitioner's land, if necessary by, issuing w.p.c.26846/05 10 passes. In any event, the respondents shall not prevent the petitioner from using the Forest road as long as the quarrying lease subsists. 7. However, I direct the respondents to see that all quarrying operations in the particular area, which is admittedly Forest Land, be stopped as expeditiously as possible. For this, instead of taking different stands, the Forest Department, Mining and Geology Department, the Revenue Department and other Departments should join hands to prevent the invasion into our precious forest wealth instead of taking non-co-operative attitudes. The Government of Kerala shall bestow their immediate attention to the same and take appropriate action as expeditiously as possible, at any rate, within 3 months from the date of receipt of a certified copy of this judgment. However, individual cancellation of permits and leases shall be after complying with principles of natural justice. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.26846/05 11