IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 6269 of 2010(G) ------------------------- PETITIONER(S): ---------------------- 1. KERALA TRIBAL DEVELOPMENT SOCIETY (REGD.NO.1-9/2003) KUMILY, REPRESENTED BY ITS PRESIDENT, SELVARANI, RESIDING AT HOUSE NO.421, PALIYAKUDI TRIBAL SETTLEMENT, KUMILI P.O., PEERMEDU TALUK, IDUKKI DISTRICT. 2. CHANDRAN.R., S/O.RAGHAVAN, 8 MOOZHIYAR, SEETHA THODU P.O., PIN-689 662. BY ADV. SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA P.KURIAKOSE RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, SCHEDULE CASTE AND SCHEDULE TRIBES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF CONSERVATOR OF FOREST, SOUTH REGION, FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM. 4. CONSERVATOR OF FOREST, NEAR GUEST HOUSE, CHINNAKADA, KOLLAM. 5. ASSISTANT CONSERVATOR OF FOREST, FOREST DIVISIONAL OFFICE, RANNI, PATHANAMTHITTA. GOVERNMENT PLEADER SMT.LALY VINCENT FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.6269/10 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE REPRESENTATION FILED BY THE FIRST PETITIONER BEFORE THE HON'BLE MINISTER FOR FOREST, GOVERNMENET OF KERALA DATED 21.6.2007. EXT.P2: TRUE COPY OF THE ORDER NO.12647/31-07/FOREST ISSUED BY THE FIRST RESPONDENT. EXT.P3: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR FOREST DATED 19.8.2009. EXT.P4: LIST OF SCHEDULED TRIBES FAMILIES AND NAMES LIVING IN THE SETHATHODU PANCHAYAT GIVEN BY THE SCHEDULED TRIBES PROMOTER MOOZHIYAR DATED 11.8.2010. EXT.P5: LIST OF TRIBAL STUDENTS WHO ARE COMING FROM TRIBAL SETTLEMENT AND STUDYING IN THE GOVERNMENT U.P.SCHOOL, MOOZHIYAR ISSUED BY THE HEAD MASTER, GOVT. U.P.SCHOOL, MOOZHIYAR. EXT.P6: TRUE COPY OF THE CERTIFICATE ISSUED by the S.T.PROMOTER, MOOZHIYAR DATED 11.18.2010. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 6269 OF 2010 ===================== Dated this the 24th day of October, 2011 J U D G M E N T First petitioner is a Society established for the protection and welfare of the Scheduled Tribes and the second petitioner is its member. They are aggrieved by Ext.P2 to the extent that fishing rights of the Scheduled Tribes like them from Pamba, Kakki and Aanathodu lakes has been declined. This according to the petitioners is in clear violation of Section 3(d) of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. It is challenging this order and seeking a direction to the respondents to grant them permission for fishing in the aforesaid lakes, the writ petition is filed. 2. Respondents have filed a counter affidavit, where the very existence of the 1st petitioner Society and its bonafides have been disputed. In para 2 of the counter affidavit, it has been stated thus:- “2. It is respectfully submitted that the petitioner society located at Kumali is very far away from Ranni Division and the second petitioner's address is fictitious as there is no hillmen settlement at Moozhiyar as evidenced by the list of hillmen settlement in the Forest Working Plan of Ranni Forest Division. It is submitted that the first petitioner society does not have members WPC No. 6269/10 :2 : of tribes living within the areas of Ranni Division. None of the members of the society has any personal or community right over the forest areas in Ranni Division. It is submitted that the tribal communities in Ranni Division seldom go for fishing and do not depend on fishing for their livelihood. They are mainly NWFP collectors and their rights in the forest area have not been restricted. It is submitted that the members of the petitioner society had traditional fishing rights in Periyar Lake and they have been permitted for fishing in Idukki Lake also where most of the species are introduced ones, the fish fauna in Pamba, Anathode and Kakki reservoirs are natural riverine Pisces species and many of them are scheduled ones. So allowing fishing in these reservoirs will result in capturing of scheduled fishes which will amount to committing wildlife offence. Now they are trying to gain fishing rights over reservoirs in Goodrical Range where they have no rights at all. It is submitted that no evidence for staking their claim in the reservoir has been put forth. The Grama Sabha of the local tribal community has not put forth any claim of community rights for fishing so far. Therefore, it can be seen that the claims put forth by the petitioners are without evidence and are baseless.” 3. Section 3 of the aforesaid Act provides for forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers and Section 3(1)(d) being relevant reads thus; “3(1)(d) - other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;” 4. It is the benefit of this section, which is sought for by the petitioners. Section 4 of the Act deals with the recognition of, WPC No. 6269/10 :3 : and vesting of, forest rights in forest dwelling Scheduled Tribes and other traditional forest dwellers and Section 6 provides the authorities to vest the forest rights as provided in Section 4. Section 6 provides that Grama Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights and that based on the recommendation, resolution shall be passed and that the same shall be forwarded to the Sub Divisional Level Committee. 5. Learned Government Pleader positively asserts that the Grama Sabha has been constituted as provided in the said section. Now that the Grama Sabha has been constituted and as Section 6(1) provides that the Grama Sabha shall be the authority to initiate process for determining the extent and nature of forest rights, it is for the petitioners to take up their claims before the Grama Sabha and it is for the Grama Sabha to determine the nature and extent of their forest rights. 6. Therefore, I direct that, it will be open to the petitioners to move the concerned Grama Sabha for determination of the rights in accordance with Section 6 of the WPC No. 6269/10 :4 : Act, in which event, the Grama Sabha will necessarily consider the same in the manner as laid down in the Act. Writ petition is disposed of with that liberty. ANTONY DOMINIC, JUDGE Rp