IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 O.P.No.1513 of 2000(S) ----------------------------------------------- PETITIONER:- -------------------- 'NIYAMAVEDI', REP. BY ITS MEMBER, ADV.DENIZEN KOMATH, S/O.SHAJIDA DOWSON KOMATH, AGED 28 YEARS, KOMATH HOUSE, MURIKKUMPADOM, AZHEEKAL P.O., KOCHI - 682 510. BY ADV. SRI.A.X.VARGHESE RESPONDENTS:- ------------------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS, NEW DELHI. 2. STATE OF KERALA, REP. BY ITS SECRETARY, MINISTRY OF FORESTS, SECRETARIAT, TRIVANDRUM. 3. CHIEF CONSERVATOR OF FORESTS (WILD LIFE), TRIVANDRUM. 4. WILD LIFE WARDEN, IDUKKI WILD LIFE DIVISION, VELLAPPARA, PAINAVU P.O., IDUKKI - 685 603. 5. ASSISTANT WILFE LIFE WARDEN, THATTEKAD BIRD SANCTUARY, AYAPPILLY P.O., (VIA) KOTHAMANGALAM. R1 BY ASST.SOLICITOR GENERAL OF INDIA SRI.P.PARAMESWARAN NAIR. R2 TO R5 BY SPECIAL GOVERNMENT PLEADER SRI.M.P.PRAKASH. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- O.P.NO.1513 OF 2000-S APPENDIX PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 - TRUE PHOTOCOPY OF THE SKETCH REGARDING THE SANCTUARY. EXT.P2 - TRUE PHOTO COPY OF THE PAMPHLET PUBLISHED BY THE RESPONDENTS. EXT.P3 - TRUE ORIGINAL PHOTOGRAPHS TAKEN REGARDING RECENTLY CONDUCTED FELLING OPERATION. RESPONDENT'S EXHIBITS:- ---------------------------------------- NIL. ( True copy) H.L.Dattu, C.J. & T.R.Ramachandran Nair, J. -------------------------------------------------------------- O.P.No.1513 of 2000 -S -------------------------------------------------------------- Dated, this the 26th day of May, 2008 JUDGMENT H.L.Dattu, C.J. The petitioner is an organisation, consisting mainly of lawyers, constituted with the intention to attain the Constitutional goal guaranteed under Article 51A, mainly for improving environment and also to ensure the attainment of fundamental duties enshrined in the Constitution. In this writ petition filed under Article 226 of the Constitution, the petitioner has brought to the notice of this Court the so-called high handed attempts made by the respondents to construct a road through the Thattekad Bird Sanctuary in violation of the relevant laws and also in violation of the provisions of the Forest (Conservation) Act, etc. The prayer in the writ petition is to prohibit respondents 2 to 5 from constructing the proposed new road through the core area of Thattekad Bird Sanctuary, having a distance of 8 Kms, commencing from Ovumgal to Orulamthanni. 2. The 5th respondent has filed a detailed counter affidavit. In that, at paragraph 5 and paragraph 8, it is stated as under: “5. This respondent hereby denies the allegation that daily labourers have been engaged to construct a new road through the core area of the Sanctuary having a distance of 8 Kms. It is submitted that no new road has been constructed in Thattekad Bird Sanctuary and no tree fellings have been carried out. The existing trekpaths are maintained annually for patrolling and inspection for effective protection and this year also some maintenance work were done. For effective patrolling and inspection the obstacles along the road including fallen branches of trees were removed. This trekpaths are essential O.P.No.1513 of 2000-S 2 for perambulation and this will act as fire belts and help in preventing forest fires. It is submitted that from Ovumkal, the length of the existing trekpath is 1 Km and from Urulanthanni the length of the pathway is 3.80 KM. Between these two roads there is yet another trekpath. Maintenance of these tekpaths are very essential since adjoining areas are very vulnerable to fire. Neither trees nor undergrowth have been felled for maintaining these roads and trekpaths. No disturbance to the eco-system or wildlife has been done by maintaining the roads or trekpaths. xx xx xx 8. It is respectfully submitted that by maintaining an existing trekpath, no disturbance to the eco-system or wild life will be caused. The fallen tree branches have been removed from the trekpath and the same are kept on the side where the fallen branches were seen. Ext.P3 series photographs are evidently the photographs of fallen branches which were removed from the trekpath. Even now all the deceased, wind fallen and dead trees as well as branches can be seen inside the sanctuary. The allegations in the original petition are misconceived. It is respectfully submitted that the petitioner organisation by filing this type of original petitions are misusing the concept of public interest litigation. Had they been appraised of the real facts they should not have approached this Honourable Court”. 3. The petitioners have not filed any reply to the counter affidavit filed by the 5th respondent. 4. The 5th respondent, in his counter affidavit, has stated that the respondents are not constructing any road through the core area of the Sanctuary having a distance of 8 Kms. They have further stated that in order to clear the trekpaths, they have removed certain branches of the trees, only to facilitate the easy movement of the patrolling party and also the vehicle. 5. Since the respondents are not constructing any road as such as alleged by the petitioner in the writ petition, the prayer sought for by the petitioner cannot be granted by this Court. Accordingly, while disposing of this writ petition, we reserve liberty to the petitioner organisation to approach this O.P.No.1513 of 2000-S 3 Court if, for any reason, the respondents attempt to construct a new road through the core area of Thattekad Bird Sanctuary or destruct the said Sanctuary. 6. In view of the orders passed in the writ petition, C.M.P.No.2398 of 2000 is dismissed. Ordered accordingly. H.L.Dattu Chief Justice T.R.Ramachandran Nair Judge vku/-