IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 25883 of 2007(F) -------------------------- PETITIONER(S): --------------- 1. DASI AWWA, W/O. BOMMAYYA GOUDER, H.NO.TP V/326, THIRULUKUNNU, THIRUNELLI, MANANTHAVADY, WAYANAD. 2. T.B.NARAYANAN, S/O. BOMMAYYA GOUDER, H.NO.TP V/325, THIRULUKUNNU, THIRUNELLI, MANANTHAVADY, WAYANAD. 3. T.B.RAMANNAN, S/O. BOMMAYYA GOUDER, H.NO.TP V/323, THIRULUKUNNU, THIRUNELLI, MANANTHAVADY, WAYANAD. BY ADV. SRI.M.C.JOHN RESPONDENT(S): --------------- 1. THE WILD LIFE WARDEN, WAYANAD WILD LIFE DIVISION, SULTHAN BATHERI, WAYANAD. 2. THE ASSISTANT WILD LIFE WARDEN, THOLPETTY RANGE, MANANTHAVADY, WAYANAD DISTRICT. 3. THE CONSERVATOR OF FORESTS (VIGILANCE), NORTHERN REGION, KOZHIKODE. 4. THE DISTRICT COLLECTOR, WAYANAD. SPECIAL GOVERNMENT PLEADER (FOREST) SHRI..M.H.HANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 25883/2007 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE RELEVANT PAGE OF THE RATION CARD. P2. COPY OF THE OWNERSHIP CERTIFICATE DTD.16.7.2007. P3. COPY OF THE BUILDING TAX RECEIPT DTD.27.6.07. P4. COPY OF THE ELECTORAL IDENTITY CARDS. P5. COPY OF THE DETAH CERTIFICATE DTD.27.4.06 OF BOMMAYYA GOUNDER. P6. COPY OF THE FIR REGISTERED BY THIRUNELLI POLICE ON 24.4.2000. P7. COPY OF THE RECEIPT DTD.18.11.1999 BY THE TELE-COMMUNICATION DEPARTMENT IN THE NAME OF BOMMAYYA GOUNDER. P8. COPY OF THE REPRESENTATION DTD.10.7.07 TO THE DIST. COLLECTOR. NO EXT.P9. P10. COPY OF THE NOTIFICATION DTD.8.5.1939. P11. COPY OF THE OWNERSHIP CERTIFICATE DTD.25.3.2008. P12. COPY OF THE PHOTOGRAPH OF PADDY KEPT IN THE BUILDING. P13. COPY OF THE CERTIFICATE OF REGISTRATION OF THE TRACTOR. P14. COPY OF THE GOOD CARRIAGE PERMIT. P15. COPY OF THE PROCEEDINGS DTD.23.5.2008 OF JFCM-II, MANANTHAVADY. P16. COPY OF THE CERTIFICATE ISSUED FROM THE GRAMA PANCHAYAT. P17. COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF PADASEKHARA SAMITHY OF THIRUNELLI GRAMA PANCHAYAT. P18. COPY OF THE RELEVANT PAGES OF FOREST MANAGEMENT PLAN. P19. COPY OF THE APPLICATION DTD.18.2.2008. P20. COPY OF THE SALE DEED NO.1573 DTD.1.7.2006 P21. COPY OF THE LEVY NOTICE DTD.18.11.69. P22. COPY OF THE BILL DATED 20.1.70. P23. COPY OF THE POSTAL ENVELOPS. P24. COPY OF THE RELEVANT PAGES OF RC BOOK FOR KL 12 A 3122. P25. COPY OF THE RELEVANT PAGES OF RC BOOK KL 12/4847. RESPONDENT(S)'EXHIBITS R2A. COPY OF THE NOTIFICATION DTD.29.7.1940. “B. COPY OF THE WRIT PETITION NO.659/2008 WITHOUT EXHIBITS. “C. COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DTD.31.7.2008 TO THE ASST. WILDLIFE WARDEN, THOLPETTY. “D. COPY OF THE STATEMENT FILED BY P3 BEFORE THE WILDLIFE WARDEN, THOLPETTY. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.25883 of 2007 ================== Dated this the 6th day of August, 2009 J U D G M E N T The petitioners claim to be the inhabitants of a forest settlement having an extent of 1½ acres in Thirunelly village. According to the petitioners, their predecessors-in-interest were settled in the settlement during 1940s under the 'Crop More Food' scheme of the Government. They would submit that they are engaged in paddy cultivation. According to them, the only access for them from the settlement to the main road is a 100 metre road terminating at Thettu road junction. The road has been used by four families of the petitioners exclusively for taking their carts, tractors and motor bikes for transporting agricultural produces and also for their children to go to school. The settlement is protected by Forest Department by digging elephant proof trench all around and also with solar electrical fencing to prevent attack from wild animals. The 1st petitioner's husband and the father of petitioners 2 and 3 was killed by a wild elephant in April 2000. The petitioners would allege that there are other settlements on the other side of the road, which are inhabited, the inhabitants of which also are using similar forest road for access to the main road. The petitioners allege that by the middle of June, 2007, the road was closed by the respondents by putting up a chain gate to prevent the 2 petitioners from using the road by taking their vehicles to the settlement and out of the settlement. The petitioners submit that as a result, they are unable to take out their agricultural produces for sale to the market and their children are made to walk through the whole distance for going to school. It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “a) issue a writ of mandamus directing the respondents to remove the chain gate put up at the 100 metre road leading from the petitioners' settlement to the Thettu Road junction at Mananthavady-Thirunelli Road and to restore the free passage through the road to the petitioners and the members of their families. b) to restrain the respondents and their subordinates from interfering with the free ingress and egress through the 100 metre forest road leading from Thettu road junction to the Settlement of the petitioners. c) direct the respondents to make necessary arrangements for the uninterrupted use of the road by the petitioners and other inhabitants of the settlement. d) issue such other writ, order or direction including interim orders as that are necessary in the circumstance of the case and to allow this Writ Petition with costs.” 2. A statement has been filed by the 1st respondent and a rejoinder affidavit has been filed by the 2nd respondent refuting the contentions of the petitioners. According to them, the petitioners have sold their holdings to the owner of a resort and they have filed this writ petition for the benefit of the resort owner and not for the petitioners themselves. 3. I have considered the rival contentions in detail. 3 4. I am spared of considering the contentions on merit in view of the counter affidavit filed in I.A.No.8124/2008 in I.A.No.16002/ 2000. In paragraph 5 of the same, the 2nd respondent has specifically stated thus: “5..... Further whenever requested, the Forest Department has allowed 2nd petitioner to transport the harvested paddy and the hay to market, to take the triller to the paddy field etc. through the Koottiyoor- Panavally trek path, another route to the settlement from the same Mananthavady-Thirunelly Road. So the statement given by 2nd petitioner in this regard is false. The petitioner was given permission to transport the agricultural produce and other materials from and to the market through Koottiyoor-Panavally trek path which was used by them previously. Department has never obstructed the movement through this trekpath. As requested by the 2nd petitioner, the 2nd respondent had given permission to use the Koottiyoor-Panavally trek path for taking power Triller for agriculturae (sic) purpose even in July 2008, as per letter no.75/2006 dated 31.07.2008........” From the same, it is abundantly clear that there is an alternate road access to the petitioners' settlement through the Koottiyoor-Panavally trek path and that the respondents have no objection in the petitioners' using that trek path for vehicular access to and from their properties. Both sides do not dispute the existence of the said trek path. The petitioners now submit that they would be satisfied if they are permitted road access through that Koottiyoor-Panavally trek path. Since in the affidavit, the 2nd respondent has categorically stated that the respondents have no objection in the petitioners using that trek path, I am of opinion that this writ petition can be disposed of by directing the respondents to permit the petitioners to use that trek path for road access to and from their settlement. Accordingly, this 4 writ petition is disposed of with the following directions: The petitioners have today filed an affidavit giving the names of the members of their families, who seek to use the said trek path. The petitioners have already produced the RC book of the vehicles used by them. The respondents may issue identity passes to each of the members of the families of the petitioners mentioned in the affidavit and permit those persons and the vehicles mentioned in the affidavit for using the trek path for transport between the settlement and the main road. It would be open to the respondents to conduct periodical checks to ensure that only the persons and the vehicles mentioned in the affidavit use the trek path. It would be open to the respondents also to prevent others from using the trek path without their permission. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge