IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 33231 of 2006(F) -------------------------- PETITIONER: ------------ P.B.BABU, S/O.BALAN, AGED 40, PERUMBADAPPU VEEDU, VARANTHARAPPALLY P.O., THRISSUR. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT., (FOREST AND WILF LIFE DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF CONSERVATOR OF FOREST (PROTECTION), THIRUVANANTHAPURAM. 3. DIVISIONAL FOREST OFFICER, PALAKKAD. 4. MALABAR CEMENTS LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT WALAYAR, PALGHAT. BY ADV. SRI.B.S.KRISHNAN(SR.) FOR R4 SRI.K.ANAND (A.201) FOR R4 SMT.LATHA KRISHNAN FOR R4 SHRI.RENJITH THAMPAN, SPL. GOVERNMENT PLEADER (FOREST) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON 16/09/2008 DELIVERED THE FOLLOWING: WPC NO.33231/2006 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF TENDER NOTIFICATION NO.7809/05 DATED 13/12/2005 OF R3. P2 : COPY OF GOVERNMENT ORDER DATED 22/08/2006, NO.G.O.(M.S.) NO.29/06/F&WLD. P3 : COPY OF THE AGREEMENT NO.9/2006-07 BY THE PETITIONER ENTERED INTO WITH GOVERNMENT DATED 02/11/2006. P4 : COPY OF THE COMPLAINT DATED 28/09/06 SUBMITTED TO THE DIVISIONAL FOREST OFFICER, PALGHAT BY THE PETITIONER. P5 : COPY OF THE REPRESENTATION/COMPLAINT DATED 04/11/06 SUBMITTED BEFORE THE MINISTER FOR FOREST, KERALA STATE BY THE PETITIONER. P6 : COPY OF LETTER NO.D-7809/05 DATED 28/12/2006 ISSUED BY R3 TO PETITIONER. RESPONDENT'S EXHIBITS ANNEXURE R3(a) : COPY OF GOVERNMENT LETTER NO.12492/C2/06/F&WLD DATED 22/11/2006. //TRUE COPY// PA TO JUDGE. jg S. SIRI JAGAN, J. --------------------------------------- W.P.(C)No.33231 OF 2006 ---------------------------------------- Dated this the 16th day of September, 2008 JUDGMENT Pursuant to Ext.P1 tender notification issued by the 3rd respondent- Divisional Forest Officer, Palakkad, the petitioner quoted for removal of sand for nine months from the mining area of the Malabar Cements Ltd, the 4th respondent herein. Pursuant thereto, Ext.P2 order was passed by the Government, awarding the contract to the petitioner, for which Ext.P3 agreement was entered into. In Clause 4 of Ext.P3 agreement, it was stipulated that the petitioner can be permitted to use the forest road within the Malabar Cements Factory area with prior permission from the Forest Department for transportation of sand. It was also specified in Clause 5 thereof that the contractor shall be responsible for making new approach road, if any, needed for extraction of sand which may be done with the prior approval of the Forest Department. The Forest road mentioned in Clause No.4 of Ext.P3 was through the properties of the 4th respondent – Malabar Cements Ltd. They refused to give permission to the petitioner to use the said road for transportation. It is under the W.P.(c)No.33231/06 2 above circumstances, the petitioner has approached this Court seeking the following reliefs; “ (i) Issue a Writ of Mandamus or any other appropriate writ, order or direction, commanding the 4 th respondent to refrain from putting up obstructions in executing the contractual obligation of the petitioner as per Ext.P3 agreement, read with Ext.P1 tender notice and Ext.P2 order. (ii) Declare that, the obstruction put up by the 4 th respondent is illegal and arbitrary and the petitioner is entitled to execute the contractual obligation, without being obstructed to, by the 4 th respondent. Alternatviely; (iii) Issue a Writ of Mandamus or any other appropriate writ, order or direction, commanding respondents 1 to 3 allow the petitioner to use the forest road via Kava. (iv) Issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit, just and proper in the circumstances of the case; (v) Award costs of these proceedings”. 2. Although initially I directed respondents 1 and 3 to permit the petitioner to use the forest road through Kava, the said order was stayed by the Division Bench. Subsequently, since the period stipulated in my interim order namely, three months, had expired, the Division Bench closed the Writ Appeal reserving liberty to the petitioner to move the learned W.P.(c)No.33231/06 3 Single Judge for hearing of the writ petition out of turn. 3. The writ petition comes up for hearing now pursuant thereto. However, I am unable to consider the matter on merit since the period prescribed in Exts.P1 to P3 namely, nine months, is already over. Without a valid agreement for removal of sand the question of permission to use the forest road for the purpose does not arise. Therefore, without prejudice to the right of the petitioner to approach this Court again for the same reliefs, after obtaining extension of the period mentioned in Exts.P1 to P3 or getting fresh award of tender in his favour, this writ petition is closed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.33231/06 4