IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 26TH APRIL 2011 / 6TH VAISAKHA 1933 WP(C).No. 3460 of 2011(F) ------------------------- PETITIONER(S): --------------- 1. RAJAN PILLAI.P.R., S/O.LATE RAMAKRISHNAN NAIR, PLAKKATTU HOUSE, KUMBAZHA, PATHANAMTHITTA. 2. DILIP GOPAL, S/O.GOPALAKRISHNAN NAIR, KIZHAKKE VEEDU, KOTTAKKAKAM, MAVELIKKARA. 3. SREEDHARAN NAIR.P.R., S/O.LATE RAMAN NAIR, SREE BHAVAN, THAZHAM MURI, MALAYALAPPUZHA, PATHANAMTHITTA. 4. C.G.RAMACHANDRAN NAIR, S/O.LATE GOPALAN NAIR, CHARIVUKALAYIL, KUMPAAZHA MURI, PATHANAMTHITTA. BY ADV. SRI.V.K.SUNIL RESPONDENT(S): --------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS COMMISSIONER, THIRUVANANTHAPURAM-3. 2. THE EXECUTIVE OFFICER, SABARIMALA DEVASWAM, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-3. 3. THE DIVISIONAL FOREST OFFICER, PEERMADU, PIN-685 531. 4. THE FOREST RANGE OFFICER, PAMPAVALLEY FOREST STATION, PIN-689 662. GOVERNMENT PLEADER FOR R3 & 4 SRI.V.V.NANDAGOPAL NAMBIAR,SC,TDB FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.3460/2011 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE AUCTION SCHEDULE OF 1186 M.E. PUBLISHED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE CHALLAN FOR PAYMENT OF LICENCE FEES DATED 6.10.2010 (TWO NUMBERS) BY THE 1ST PETITIONER. EXT.P3: COPY OF THE PERMIT CERTIFICATE DATED 5.11.2010 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 1ST PETITIONER. EXT.P4: COPY OF THE LICENCE NO.A8/51/2010 DATED 24.11.2010 (D & O LICENCE) ISSUED BY THE SECRETARY, RANNI PERUNADU GRAMA PANCHAYATH IN FAVOUR OF THE 1ST PETITIONER. EXT.P5: COPY OF THE LICENCE NO.A8/47/2010 DATED 24.11.2010 ISSUED UNDER PREVENTION OF FOOD ADULTERATION ACT IN FAVOUR OF THE 1ST PETITIONER. EXT.P6: COPY OF THE CHALLAN FOR PAYMENT OF LICENCE FEES DATED 6.10.2010 BY THE 2ND PETITIONER. EXT.P7: COPY OF THE CERTIFICATE DATED 15.11.2010 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 2ND PETITIONER. EXT.P8: COPY OF THE LICENCE NO.A8/182/2010 DATED 30.11.2010 (D & O LICENCE) ISSUED BY THE SECRETARY, RANNIPERUNADU GRAMA PANCHAYATH IN FAVOUR OF THE 2ND PETITIONER. EXT.P9: COPY OF THE P.F.A.LICENCE NO.154/2010 DATED 30.11.2010 OF THE 2ND PETITIONER. EXT.P10: COPY OF THE CHALLAN FOR PAYMENT OF LICENCE FEES DATED 6.10.2010 BY THE 3RD PETITIONER. EXT.P11: COPY OF THE CERTIFICATE DATED 5.11.2010 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 3RD PETITIONER. EXT.P12: COPY OF THE LICENCE NO.A8/30/2010 DATED 18.11.2010 (D & O LICENCE) ISSUED BY THE SECRETARY, RANNIPERUNADU GRAMA PANCHAYATH IN FAVOUR OF THE 3RD PETITIONER. EXT.P13: COPY OF THE CHALAN DATED 6.10.2010 OF THE 4TH PETITIONER. EXT.P14: COPY OF THE CERTIFICATE DATED 12.11.2010 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 4TH PETITIONER. W.P.(C).NO.3460/2011 W.P.(C).NO.3460/2011 EXT.P15: COPY OF THE D & O LICENCE NO.A8/142/2010 DATED 30.11.2010 ISSUED IN FAVOUR OF THE 4TH PETITIONER. EXT.P16: COPY OF THE LICENCE NO.133/2010 DATED 30.11.2010 ISSUED UNDER PREVENTION OF FOOD ADULTERATION ACT IN FAVOUR OF THE 4TH PETITIONER. //TRUE COPY// P.A. TO JUDGE THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- W.P.(C).NO.3460 OF 2011 (F) ----------------------------------- Dated this the 26th day of April, 2011 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. This writ petition is filed seeking a direction to respondents 3 and 4 not to interfere with the petitioners' activity of trade in the respective stalls allotted to them on the side of the trekking path from Pamba to Sannidhanam in Sabarimala and not to remove their stalls from their demarcated and allotted area without giving them notice in writing and affording them opportunity of hearing. 2. The land which is available with the TDB is forest land given to it on lease basis for the purposes regulated by the lease. The restrictions regarding the user of the land by TDB will also stand governed by the forest laws. The Forest Department has to W.P.(C).NO.3460/2011 2 recognise rights of TDB to such user as is permissible under the law. An harmonious approach to the rights and liabilities of both the departments would necessarily show that any commercial interest of a person, who has got a vending licence from TDB, has to be restricted strictly to the terms of such licence and subject to the forest laws. 3. In the case in hand, the four shop spaces in relation to which this writ petition is filed, are governed by the clause at Sl.No.141 in Ext.P1. The said clause provides that the commercial activity in those shops(plots) can be had only during the Mandala-Makaravilakku seasons, Meda vishu, monthly poojas and on days when the sacro- sanctum would open. Though the petitioners say that it may not be commercially viable to remove the tin sheets and other materials used for the construction of the temporary structures, that is no answer as the claim is in excess of any specific term of the licence. Obviously, the space covered by the licence can be used as a shop only for the specific periods or days mentioned in Ext.P1. W.P.(C).NO.3460/2011 3 Therefore, the petitioners cannot claim any right to insist that the structures they would put up after having been granted the licence should be permitted to remain round the year so that they do not suffer any loss on that count. Being part of forests and, that too, a wildlife reserve, the petitioners cannot insist that they should be permitted to retain the structures throughout the year. Admittedly, they cannot have commercial activity throughout the year. Barring Mandala-Makaravilakku seasons and Meda vishu, the monthly poojas come only once in a month and the number of days during which the sacro-sanctum would be open every month does not provide any ground for the petitioners, in terms of Ext.P1, to insist that they should be permitted to retain the structures throughout the year. The writ petitioners are, therefore, not entitled to any relief as sought for. 4. During the course of hearing of this writ petition, we found that the materials tend to disclose that Pamba manappuram and the trekking route from Pamba to W.P.(C).NO.3460/2011 4 Sannidhanam have, with the passage of time, been exposed to excessive and unnecessary commercial exploitation much against the interest of constitutional status of that area, which is inside the Periyar Tiger Reserve. Such commercial activities are unconnected with and irrelevant to matters attendant to faith and religious practices in connection with Sabarimala. 5. Obviously, the predominant requirement is to sustain the ecological system, the environment and the right to life in terms of Article 21 of the Constitution of India and motivated by the principles emanating out of the Directive Principles of State Policy. This is the underlying principle, as to the need to preserve the environment. We also need to bear in mind the continuous gaze of the Fundamental Duties of the citizens. In terms of the Directive Principles of State Policy, the judiciary is essentially an institution of national life and it would therefore, stand guided by the directive principles also, to ensure that the constitutional principles, doctrines and W.P.(C).NO.3460/2011 5 values are honoured and upheld in the larger interest of the society and also generations to come. 6. In the aforesaid situation, we had, by our earlier order dated 17.02.2011, required the Board to specifically state the need for commercial activities in Pamba manappuram and Sannidhanan and the trekking route and whether the Board would be prepared to have such activities trimmed down. 7. Following the aforesaid order, the Board has placed a statement dated 16.03.2011, through its Secretary, with Annexures A and B. 8. Board states that it has decided that hereafter no shops en route to Sannidhanam and Pampa shall be permitted, other than two or three shops for sale of drinking water and snacks. No shops vending toys, plastic utensils etc. will be permitted, it is stated. The Board has also decided to demolish a few shops in Pampa and to W.P.(C).NO.3460/2011 6 widen the Nadapandal there. The Board is of the view that unnecessary shops have to be demolished since it will only provide more place for movement of pilgrims in the already crowded Pampa area where there is need for further space. 9. In so far as Sannidhanam is concerned, the Board states that it has decided to demolish five of the Viri pandals, five cottages, one Annadhana Mandapam, certain donor houses etc. It has placed Annexure A as the proposed structure to be demolished. 10. We also notice that in Pampa area, three hotels and three shops are to be demolished. Annexure B is the plan of the shops to be demolished in Pampa area. 11. In paragraph 10 of its statement the Board says that the Forest department claims to have right of occupation over certain old dilapidated shops in Sannidhanam and that those structures are dangerous to W.P.(C).NO.3460/2011 7 human occupation and also stand obstructing free passage of pilgrims. The Board says that it has requested the Forest department to co-operate with TDB so as to provide open space in that area. Obviously, the Board thereby desires that the Forest department co-operates in removing those structures. We, therefore, order that the Forest department will do the needful and have all dilapidated shops removed and provide further open space in the area where the shops now stand. 12. Subject to any individual right which any person could claim over any donor building, which obviously could be only in terms of the agreement, there is no reason why the Board has not immediately proceeded with the demolition of the shops and to give effect to its decision to de-commercialize the areas. 13. We are sure that the aforesaid exercise will provide larger space for pilgrims. We need to note that availability of space is a prime criteria which has to be W.P.(C).NO.3460/2011 8 ensured. We, however, order that the Board will ensure that adequate basic facilities including drinking water, snacks etc. are provided at the appropriate place. Having regard to the location of the cardiac center, it should also be possible to find out whether a better movement track could be ear-marked without any other improvement of the ground, for immediate movement of any devotee who may fall sick en route to or from Sannidhanam. 14. We would add that the Board has to immediately take a decision regarding the various commercial activities in Sannidhanam and Pampa, apart from the trekking route. We are clear in our mind that there is unnecessary commercialization in Sannidhanam and also in Pampa. It is not a matter that requires to be brought on record by any form of affidavit that different materials are sold as if Sannidhanam and Pampa are shopping centers rather than pilgrimage points. We do not want to specify the different materials about which submissions have already been made whenever these matters are taken up. Daggers to W.P.(C).NO.3460/2011 9 toys; plastics to clothes; bangles, perfumes etc. form place for sale apart from various other materials, totally unconnected with pilgrimage, religious practices and even the tenets. 15. We also see that vending points for tender coconuts and other natural food sources are provided. This in turn generates huge heaps of waste materials. This is an environmental hazard by itself. There are materials like husks, the degeneration of which would result in depletion of the soil value. The Forest authorities and the TDB authorities cannot wait for the wild animals to eat these remains after the seasons. They have necessarily to ensure that these materials are removed either through the contractors in terms of the contract or by the involvement of the Eco Development Committee, provided, they have such responsibility. Otherwise, a day will come when even the use of such materials would be hazardous in connection with Sabarimala pilgrims. W.P.(C).NO.3460/2011 10 16. Another serious challenge to the environment is the ecological imbalance created by the huge heaps of non-biodegradables, particularly, pet bottles and other plastic materials. This is a matter which is already covered by the earlier orders issued in this writ petition as also in other cases. The TDB authorities and the forest officials will bring in very stringent measures for use of plastics in the area. Yet, the result, going by some of photographs, which we are shown, would indicate that if pet bottles were to be counted to ascertain the total number of devotees in a season, the statistics of all departments would necessarily fail. The TDB has some suggestions regarding the liability of the seller of pet bottles to collect the used bottles. It also appears to have certain suggestions regarding the bottling of water and a contract which would take care of such issues. It would also be a viable thing to consider as to whether a project could be evolved whereby people are authorized to take the pet bottles to a collection agent, from where the W.P.(C).NO.3460/2011 11 vendors/contractors, under compulsion of the terms of the contract for supply, take back those bottles at a price, say Re.1 or so as fixed by the TDB. 17. Though the aforesaid may take care for the over- commercialization, we find that under the new guidelines being involved at the level of the Government for streamlining different matters in relation to Sannidhanam and elsewhere, the Board has to ensure that there will be adequate supply of basic facilities like drinking water and other facilities as are required for the devotees to utilize en route, in connection with the pilgrimage. 18. The police authorities under the control of the Director General of Police are hereby directed to ensure that there is no unauthorized hawking or begging in Pamba, Sannidhanam, trekking route or otherwise in connection with Sabarimala including Nilakkal and Erumeli either during the seasons or during the Nadathurakkal every month. This means that police shall W.P.(C).NO.3460/2011 12 maintain strict vigilance against unauthorized hawking and also begging through out the year in so far as the aforesaid areas are concerned. 19. We hasten to add that if the Board proposes any construction activities as included in the statement, that shall be only in strict conformity with the Master Plan and decisions taken by the competent authorities in that regard with the approval of the learned Ombudsman or this Court, as the case may be, with the clearance of the High Power Committee. This Writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp W.P.(C).NO.3460/2011 13