Alakan Valyalangaram and Rajesh Panickan v. State of Kerala & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942 ## WP(C). No. 24422 OF 2020(S) |PETITIONER<br>:|PETITIONER<br>:||| |---|---|---|---| |1|||ALAKAN VALYALANGARAM, AGED 63 YEARS,| ||||S/O. VALYALANGARAM, KUNCHIPARA TRIBAL COLONY,| ||||POOYAMKUTTY, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK,| ||||ERNAKULAM DISTRICT, PIN-686 681.| |2|||RAJESH PANICKAN, AGED 49 YEARS,| ||||S/O. PANICKAN, KUNCHIPARA TRIBAL COLONY,| ||||POOYAMKUTTY, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK,| ||||ERNAKULAM DISTRICT, PIN-686 681| ||||BY ADVS. SRI.A.C.DEVASIA| ||||SMT.ANCY MATHEW| ||||SRI.MATHEW DEVASSI| |RESPONDENTS<br>:|||| |1|||STATE OF KERALA,| ||||REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,| ||||THIRUVANANTHAPURAM, PIN-695 001.| |2|||KERALA STATE ELECTRICITY BOARD,| ||||REPRESENTED BY ITS SECRETARY, VIDHUTHI BHAVAN, PATTAM,| ||||THIRUVANANTHAPURAM, PIN-695 004.| |3|||MINISTRY OF TRIBAL AFFAIRS ,| ||||REPRESENTED BY ITS SECRETARY, SHASTRI BHAVAN,| ||||DR.RAJENDRA PRASAD ROAD, NEW DELHI-110 011.| |4|||SCHEDULE TRIBES AND DEVELOPMENT DEPARTMENT,| ||||REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT,| ||||THIRUVANANTHAPURAM, PIN-695 001.| |5|||UNION OF INDIA,| ||||REPRESENTED BY SECRETARY TO MINISTRY OF FOREST,| ||||ENVIRONMENT AND CLIMATE CHANGE, REGIONAL OFFICE,| ||||SOUTHERN ZONE, KENDRIAYA SADAN, 4TH FLOOR,| ||||E & F WINGS, MAIN ROAD, 3RD BLOCK, KORAMANGALA,| ||||BANGALORE, KARNATAKA STATE, PIN-560 034.| W.P.(C):24422/2020 2 - 6 PRINCIPAL CHIEF CONSERVATOR OF FOREST, OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, (WP & R), FOREST HEAD QUARTERS, VAZHUTHAKADU, THIRUVANANTHAPURAM,PIN-695 014. - 7 DIVISIONAL FOREST OFFICER, MALAYATOOR, DIVISIONAL FOREST OFFICE, FOREST OFFICE AT KODANADU, PIN-683 544. - 8 ASST. EXECUTIVE ENGINEER, ELECTRICITY OFFICE, KEERAMPARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 681. - 9 KERALA STATE LEGAL SERVICE AUTHORITY, REPRESENTED BY ITS MEMBER SECRETARY, LEGAL SERVICE AUTHORITY OFFICE, HIGH COURT OF KERALA, KOCHI, PIN-682 031. R1, R4 BY ADV. M.K.ROBIN RAJ, SPECIAL G.P R2, R8 BY ADV. SUDHEER GANESH KUMAR.R. R3, R5 BY ADV. MR.K.ARJUN VENUGOPAL, CGC R3, R5 BY ADV. SHRI P.VIJAYAKUMAR, ASG OF INDIA R6-R7 BY SRI. SANDESH RAJA K., SPL. G.P. (FOREST) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C):24422/2020 3 ## **“C.R.”** ## **JUDGMENT** Dated this the 3[rd] day of February, 2021 ## **S. Manikumar, CJ** Instant Public Interest Litigation is filed for the following reliefs: - (a) Issue a writ of mandamus or any other appropriate writ, order, directing respondent Nos.1 to 4, to take immediate steps to draw electric line underneath the ground (underground cable system) through forest from Mlawana at Pooyamkutty to Settlement areas in Kallelumedu, Thalavechupara, Thera, Kunchipara, Meenkulam, Mappilapara, and Warriam, in Ward No.6 of Kuttampuzha Panchayat. - (b) Issue a writ of mandamus or any other appropriate writ, order, directing respondent Nos.3 and 4, to take immediate steps for implementing the electrification in the settlement areas in Ward No.6 of Kuttampuzha Grama Panchayat. - (c) Issue a writ of mandamus or any other appropriate writ, order, directing the 2[nd] respondent to consider Exhibit-P4 representation dated 08.10.2020. - (d) Issue a writ of mandamus or any other appropriate writ, order, direction, directing the respondent Nos.5 to 7 to permit respondent Nos.2 and 8, to draw underground transmission lines through forest from Mlawana to settlement colonies in Kallelumedu, Thalavechupara, Thera, Kunchipara, Meenkulam, W.P.(C):24422/2020 4 Mappilapara, and Warriam, in Ward No.6 of Kuttampuzha Panchayat. 2. Facts leading to the filing of this writ petition are that petitioners are traditional forest dwellers, Scheduled Tribes. There are six settlement colonies in Pooyamkutty Forest, coming under the jurisdiction of the Divisional Forest Officer, Malayatoor, respondent No.7. The settlement colonies are named as Kallelumedu, Thalavechupara, Thera, Kunchipara, Meenkulam, Mappilapara, and Warriam respectively. They are recognised by respondents 3 and 4, Ministry of Tribal Affairs, represented by its Secretary, New Delhi; and Scheduled Tribes and Development Department, represented by its Secretary, Thiruvananthapuram, under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The petitioners are residing at Kunchipara Tribal Colony, which is about 10 kms away from Mlavana near Pooyamkutty. They have filed this writ petition for protecting the interest of forest dwellers. 3. Petitioners have further stated that there are a number of Government schemes under the tribal departments. However, the said schemes are not implemented properly. At present, there are no schools or any Government institutions such as hospitals and other amenities. Most of the tribals are illiterate and some children aged below 15, are studying in different places with the help of other charitable institutions. The settlers W.P.(C):24422/2020 5 are living mainly from the agricultural income, paddy, seasonal crops, plantation etc., and they are collecting forest goods like honey etc. Due to the heavy attack from the wild animals, it is not possible to continue agricultural operations in the properties. 4. Petitioners have further stated that the main hindrance for the development of the settlement colonies is that there is no electricity connection. The funds of the Central and the State Governments are not utilised in a proper manner. If electricity connection is drawn in the settlement area, Government can implement the schemes like water supply, schools, library, hospital, mobile tower, and other facilities. 5. Petitioners have further stated that in the year 2019, the Central Government have decided to give consolidated electrification under Grama Jyothi Yojana Scheme. Though representations have been filed by the settlers before the concerned authorities, no action has been taken. Hence, the petitioners preferred Exhibit-P1 representation before the Hon'ble Prime Minister and it was responded to by Exhibit-P2 reply dated 06.03.2019. 6. Their grievance is that since there is a scheme by the Ministry of Tribal Affairs, represented by its Secretary, New Delhi, 3[rd] respondent, for electrification of the settlement areas, due to the negligence of the Chief Secretary, State of Kerala, Thiruvananthapuram; and the Secretary, Kerala W.P.(C):24422/2020 6 State Electricity Board, Thiruvananthapuram, respondent Nos. 1 and 2 respectively, no action has been taken. The life of settlers is in danger, due to the non-electrification, and that the schemes of the Central Government are not implemented in time. As per the provisions of the Forest Conservation Act, 1980, the rules framed thereunder, guidelines and clarifications issued by the Ministry of Environment, Forest and Climate Change, Government of India, in the year 2019, in particular Chapter 3 Serial No.3.5 of the guidelines, there is a clear exemption for payment of Net Present Value (NPV). Therefore, Union of India, represented by Secretary to Ministry of Forest, Environment and Climate Change, Regional Office, Karnataka State; the Principal Chief Conservator of Forest, Forest Headquarters, Thiruvananthapuram; and the Divisional Forest Officer, Malayatoor, respondents 5 to 7 respectively, ought to have given permission, as per the request of the 8[th] respondent, to draw underground transmission lines through the forest. Hence, the writ petition is filed, for the reliefs stated above. 7. On the above pleadings, petitioners have contended that respondents ought to have found that there is a scheme formulated by the Central Government for a complete electrification of rural and settlement areas and that, respondents 1 and 2 are duty bound to implement the W.P.(C):24422/2020 7 same. That apart, it is contended that respondent Nos.5, 6 and 7 ought to have allowed the scheme submitted by the Assistant Executive Engineer, Electricity Office, Kothamangalam, Ernakulam district, 8[th] respondent, for drawing the electric line underneath the Pooyamkutty forest. Respondent Nos. 1 and 2 have declared Ernakulam district, as a complete electrified area, but even now, the settlement area is not electrified. 8. Controverting the averments in the writ petition, a statement has been filed on behalf of respondent Nos. 1 and 4, State of Kerala, represented by the Chief Secretary; and Scheduled Tribes and Development Department, Represented by its Secretary, Thiruvananthapuram, dated 11.12.2020, wherein it is contended as under: A. Out of the 7 settlements mentioned in the writ petition, Kallelimedu is not a Tribal settlement. All the other settlements are situated in the interior Forest area, 9 to 20 kilometers away from Mlavana. It is true that majority of the residents in the colonies are Muthuvan and Mannan tribals. At present, only 274 families are residing there. It is not true that these Forest Dwellers did not receive any right on these lands. Records of rights were issued to 245 families under the Forest Rights Act. B. Most of the tribal children aged above 5 years attend schools, either in the alternate schools in the tribal settlements, or schools outside the settlements, utilizing the facilities provided by the 4[th] respondent Scheduled Tribes W.P.(C):24422/2020 8 Development Department in Pre-matric Hostels and Model Residential Schools. Since the colonies have only one single teacher, school students prefer institutions outside the tribal settlement for higher studies. The present road connecting these areas with Mlavana is not a pucca road and the 4 wheel drive vehicles are the only means of transportation. C. The connectivity to these tribal settlements is a major problem faced by the implementing departments. The Junkar Service at Pooyamkutty review cannot be operated during the rainy season. Concrete roads, culverts etc. have been provided inside the colony by the 4[th] respondent Scheduled Tribes Development Department and Local Self Government Department. As many as 67 families who were residing earlier in the Warriam tribal colony were rehabilitated at Panthapra in Kuttampuzha Panchayat, after surrendering their lands received under Forest Rights Act, due to threat of wild animals. However, a full fledged rehabilitation package consisting of housing, drinking water. electricity, internal roads and common area for cultivation are being implemented by the 4[th] respondent Scheduled Tribes department at present. D. At present, electricity is not available in the above tribal settlement colonies. Drawing electric lines for nearly 20 kilometers through dense forest requires clearance from the fifth respondent, Ministry of Forest, Environment and Climate Change, Government of India. Potable drinking water is available to all the tribal families from natural sources, open wells and ponds dug by the Scheduled Tribes Development Department. Two Mobile Medical Units are being operated, one W.P.(C):24422/2020 9 each by the Health Department and Scheduled Tribes development Department, who regularly visit these colonies and provide medical assistance and medicine. As and when necessary, these units help to bring tribal patients to Kothamangalam Primary Health Centre, where inpatient facilities are available. E. It is further contended that food grains are provided through the Public Distribution System of the Government at their door steps in Thera, Warriam, Mappilappara, and Ernakulam tribal settlements, where ration shops are functioning. There are 3 Anganwadies functioning in Thalavechupara, Warriam, and Kunchippara colonies, and children from all these colonies attend either of these Anganwadies. Apart from that, services of 4 Scheduled Tribes promoters and Asha workers are also made available. Though mobile connectivity is not available in these tribal colonies, the Scheduled Tribes Development Department along with the help of Local bodies, General Education Department and voluntary organizations has provided all the facilities for online classes by using solar power systems. That apart, the 2[nd] respondent KSEB Ltd., has proposed to build a High Tension underground cable for a length of 6.6 Kilometers for electrification of Thalavechupara and Kunjipara settlements. F. It is further contended that as mentioned earlier, for drawing electric line for nearly 20 kilometers through dense forest requires clearance from fifth respondent, Union of India, Ministry of Forest Environment and Climate Change, online application has been submitted by the 2[nd] respondent KSEB to W.P.(C):24422/2020 10 the 5[th] respondent vide letter No. FP/KL/other/40859/2019 dated 26.06.2019, on which action is pending. Hence, it is submitted that absence of electricity has not deprived the tribals of any of the basic amenities and it has been ensured by the 4[th] respondent, Schedule Tribes Department, in coordination with other Government Departments. G. It is further contended that the above mentioned colonies have been identified and listed for Kerala. The program has been initiated by the Kerala State Electricity Board and for that purpose, the Scheduled Tribe Department has released an amount of Rs.12.32 crores to provide electric connection to all the Scheduled Tribe households in the State. Out of 17798 Scheduled Tribes houses targeted, the KSEB could provide electric connection to 17146 houses so far and this effort is still continuing. I. It is finally contended that the 4[th] respondent, Scheduled Tribe Development Department, has taken all the possible steps to provide basic amenities related to education, health care, and livelihood to the tribal people living in the colonies, despite the fact that there is no electricity. Besides these efforts, the Scheduled Tribe Development Department has been very keen in providing electricity connection to each and every tribal household in the State and has initiated a massive scheme through the 2[nd] respondent KSEB by sanctioning more than Rs. 12 Crores. This initiative has resulted in electrification of 17146 tribal households so far and is still in progress. For the foregoing reasons, the respondents have prayed for dismissal of the writ petition. W.P.(C):24422/2020 11 9. Before adverting to the grievance of the petitioner, we would like to extract a few passages from the judgments of the High Courts on the necessity for supply of electricity. - (I) A Hon'ble Division Bench of the Orissa High Court, in **S. Padma v.** - **Central Electricity Supply Utility (CESU) and Ors.** [2013 (1) ILR-CUT 511], observed thus: “14. Needless to say that right to shelter is a fundamental right under Art. 19(1) of the Constitution of India [See **Chameli Singh others v. State of U.P. and another** , AIR 1996 SC 1051] and shelter without electricity makes the life miserable. Electricity is the basic necessity for survival of a person in modern days. Abrupt disconnection of power supply or non-supply of power seriously affects a person's right to have his food, water and decent environment, medical care and education. Disconnection of power supply from the premises of a consumer or nonsupply of power to an applicant has a drastic impact on the day-to-day life of the citizens. It affects study of children, enhances the misery of old and sick persons, endangers the safety of the houses more particularly it is unbearable in the present days of global warming.” (II) One of us (Mr. Justice S. Manikumar), in a case before the Madras High Court, wherein a socially and economically weaker section of the society, prayed for supply of electricity, in W.P. No.17608 of 2013, [ **T.M.Prakash and** ## **Others v. The District Collector and Another** ], by judgment dated ## 27.09.2013, observed thus:- “66. Lack of electricity supply is one of the determinative factors, affecting education, health, cause for economic disparity and consequently, inequality in the society, leading to poverty. Electricity supply is an aid to get information and W.P.(C):24422/2020 12 knowledge. Children without electricity supply cannot even imagine to compete with others, who have the supply. Women have to struggle with firewood, kerosene, in the midst of smoke. Air pollution causes lung diseases and respiratory problems. Electricity supply to the poor, supports education and if it is coupled with suitable employment, disparity is reduced to certain extent. Lack of education and poverty result in child labour. 67. When right to education upto the age of 14 years is a fundamental right, when right to health is also recognised as a right to life, under Article 21 of the Constitution of India, access to electricity supply should also be considered as a right to life, in terms of Article 21 of the Constitution of India. The respondents ought to have addressed all the issues, instead of banking on the Committee's decision, which in the humble opinion of this Court, is not in aid of human right, but inapposite to the need for, providing the basic amenity, electricity. The authorities ought to have considered, whether it would be effective enforcement of Article 21 or Article 21A of the Constitution of India, while denying the petitioners, access to electricity supply. 68. The respondents ought to have visualised the difficulties of the women, children and aged persons, living in the huts for several years, without electricity. Electricity supply is an essential and important factor for achieving socio-economic rights, to achieve the constitutional goals with sustainable development and reduction of poverty, which encompasses lower standards of living, affects education, health, sanitation and many aspects of life. Food, shelter and clothing alone may be sufficient to have a living. But it should be a meaningful purpose. Lack of electricity denies a person to have equal opportunities in the matter of education and consequently, suitable employment, health, sanitation and other socio-economic rights. Without providing the same, the constitutional goals, like Justice, Liberty, Equality and Fraternity cannot be achieved. 69. Right to electricity to a person in occupation of Government poromboke lands is recognised in the Distribution Code and it is integral to the achievement of socio-economic rights. It is extricably related to amolerate W.P.(C):24422/2020 13 poverty. Electricity is an implicit component and facet of human right. In the light of the above discussion, the respondents ought to have come forward to provide electricity supply to the petitioners, instead of opposing the relief sought for. 70. Access to electricity should be construed as a human right, of course, to the requirements to be satisfied under the electricity laws. Denial of the same, upon even satisfying the requirements, would amount to violation of human rights. The action of the respondents is regressive. Electricity supply under the Electricity Act, the Distribution and Supply Code, is a legal right. At this juncture, this Court deems it fit to consider the meaning of the word, 'right' and few decisions, as to when a Mandamus, can be sought for. 71. The word "right, or in its plural form "rights," is a common term, of broad signification. It is a generic, abstract, and comprehensive term, having a wide scope of meaning in its various legal applications, and it has no satisfactory definition or explanation, except in connection with some concrete conception of thing out of which it grows. It may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised "rights." It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property. 72. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law. 73. In K.J. Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law. xx xxx xxx W.P.(C):24422/2020 14 77. In **Mr. 'X' Vs. Hospital 'Z'** reported in **(1998) 8 SCC 296** , while considering the right of privacy and the violations of personal rights, the conflict between fundamental right of the parties, at paragraph No. 15, the Apex Court explained the word "right" as follows: "RIGHT" is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a "LEGAL RIGHT" are that the "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right. ## xx xxx xxxx 87. It is the fundamental duty of the respondents to show compassion to those who are living in huts and tenements for long number of years, taking into consideration their socio-economic disabilities, without electricity supply for many years. Preamble to the Constitution of India guarantees right of every person to justice, social, economic and political. When socio and economic justice is the mandate of the Constitution of India, it is a travesty of justice to deny electricity to the petitioners. Income is one of the sources for achieving an egalitarian society and it is the fundamental right to decent living. Providing electricity to the poor, subject to the satisfying conditions, as per the electricity laws, would reduce the economic imbalance and help the under privileged. The authorities should be pragmatic and realistic to the constitutional goals. The weaker sections and under privileged do not crave, in their heart, for power in hierarchical positions, they only want W.P.(C):24422/2020 15 electric power to have "lighting" in their house. Hut dwellers cannot expect and afford luxury. But for them, it is only a basic amenity. Electricity supply should, not only be extended to pattadars or the owners of lands, but it should also be extended to the poor and the needy, who live in government poromboke lands, when they substantiate occupation, for a considerable period.” ## (III) In **Kanubhai Jethabhai Rohit and others v. State of Gujarat** , [Special Civil Application No.18969 of 2016, dated 31-08-2017], the Gujarat High Court considered the validity of Regulation 4 of the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2015, with reference to Article 21 of the Constitutions of India, and held as under: “It is not only unfortunate but shameful that in a country with democracy, where the people have got a fundamental right, have to claim and fight a litigation for supply of domestic electricity though it would also form a right to life under Article 21. It does not require any elaborate submission that right to life under Article 21 will have a different facet and in modern days it may not be possible to survive without the supply of electricity in as much as the children may be studying, senior citizens may be sick. On the one hand when right to education is sought to be made compulsory and on the other hand such a hostile attitude by Respondent Nos. 2 and 3 as a licensee asking for proof of ownership has no excuse to deny the supply of electricity.” 10. Heard the learned counsel for the parties and perused the material available on record. 11. In the light of the specific averments made by the Under Secretary, SC/ST Development Department in the statement dated 11.12.2020 that, for drawing electric line through the dense forest, W.P.(C):24422/2020 16 clearance from the Union of India, represented by Secretary to Ministry of Forest, Environment and Climate Change, Regional Office, Karnataka State, 5[th] respondent, is required, and for that purpose, online application has been submitted by the Kerala State Electricity Board, 2[nd] respondent, to the 5[th] respondent dated 26.06.2019, we dispose of the writ petition directing the 5[th] respondent, to consider the observations recorded by the Courts in India and pass orders on the request made by the 2[nd] respondent, in the letter dated 26.06.2019, for getting clearance from the 5[th] respondent, within a period of two months from the date of receipt of a certified copy of this judgment. Respondents 1 to 4 are also directed to send a copy of the letter dated 26.06.2019, to the 5[th] respondent, once again. Learned counsel for the petitioners shall send a copy of this judgment to the learned counsel for the 2[nd] respondent, for appropriate action. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** krj W.P.(C):24422/2020 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** EXHIBIT P1 COPY OF THE REPRESENTATION UNDATED BY THE PEOPLE TO KALLELUMEDU TO PRIME MINISTER. EXHIBIT P2 COPY OF THE REPLY FROM THE PRIME MINISTER'S OFFICE DATED 5.3.2019 TO THE 1ST RESPONDENT. EXHIBIT P3 COPY OF THE REPRESENTATION AND ITS ENGLISH TRANSLATION DATED 10.10.2020 SENT TO THE 9TH RESPONDENT. EXHIBIT P3A ENGLISH TRANSLATION OF EXT.P3. EXHIBIT P4 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 8.10.2020. EXHIBIT P4A ENGLISH TRANSLATION OF EXT.P4. ## **RESPONDENTS' EXHIBITS:-NIL** //TRUE COPY// P.A. TO C.J.