Bindu S. v. Tahsildar, Chittur Taluk; Geologist, Department of Mining & Geology; Forest Range Officer, Nelliampathy; Village Officer, Vallanghy; Kerala State Pollution Control Board; M.K. Surjith; District Collector; Principal Secretary to Government, Department of Revenue; Principal Secretary to Government, Department of Forest & Wildlife

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934** ## **WP(C).No. 16411 of 2012 (B)** ## **---------------------------** **PETITIONER(S): -----------------------** **BINDU. S, W/O.K. SANTHAKUMAR, AGED 40 YEARS, KACHERIPADAM KALAM, VITHANASSERY, NEMMARA P.O., PALAKKAD DISTRICT-678 508.** **BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE. ADVS. SRI.BABU JOSEPH KURUVATHAZHA, SRI.N.SHAMSUL HUDA.** **RESPONDENT(S):** **--------------------------** **1. THE TAHSILDAR,** - **CHITTUR TALUK, TALUK OFFICE, CHITTUR,** - **CHITTUR P.O., PALAKKAD DISTRICT-678 101.** **2. THE GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY,** **PALAKKAD- 678 001.** **3. THE FOREST RANGE OFFICER, NELLIAMPATHY FOREST RANGE OFFICE,** **NEMMARA, NEMMARA P.O., PALAKKAD DISTRICT-678 508.** **4. THE VILLAGE OFFICER,** - **VALLANGHY VILLAGE, NEMMARA P.O.,** - **PALAKKAD DISTRICT-678 508.** **5. KERALA STATE POLLUTION CONTROL BOARD,** - **REPRESENTED BY ITS ENVIRONMENTAL ENGINEER,** - **PALAKKAD- 678 001.** **6. M.K. SURJITH,** - **FOREST RANGE OFFICER,** - **NELLIAMPATHY FOREST RANGE OFFICE, NEMMARA, NEMMARA P.O., PALAKKAD DISTRICT-678 508.** ## *** ADDL. R7 IMPLEADED** **7. THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, PALAKKAD-678 001.** - **ADDL. R7 IS IMPLEADED AS PER ORDER DATED 03/12/2012 IN I.A.11635/2012.** **WP(C).No. 16411 of 2012 (B)** ## **** ADDL. R8 & R9 IMPLEADED** **8. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **9. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST & WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **** ADDL. R8 & R9 ARE IMPLEADED AS PER ORDER DATED 03/12/2012 IN I.A. NO.14402/2012.** **R1 TO R4, ADDL.R7 TO R9 BY SPL. GOVT. PLEADER (FOREST) SRI.M.P.MADHAVANKUTTY. R5 BY ADV. SRI. M.AJAY, SC, KSPCB. R6 BY ADVS. SRI.THOMAS ANTONY, SRI.M.P.PRAKASH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2012, THE COURT ON 03-12-2012 DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 16411 of 2012 (B)** **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 TRUE COPY OF THE DOCUMENT NO. 20/2003 DATED 03-01-2003 OF THE SUB REGISTRY NEMMARA. EXT.P2 TRUE COPY OF THE DOCUMENT NO. 3088/2007 DATED 30-11-2007 SUB REGISTRY NEMMARA.** **EXT.P3 TRUE COPY OF THE POSSESSION CERTIFICATE NO. 3062/2012 DATED 07-07-2012 ISSUED BY THE 4TH RESPONDENT. EXT.P4 TRUE COPY OF THE LICENSE NO. A3-200/12 DATED 18-04-2012 ISSUED BY THE SECRETARY, NEMMARA GRAMA PANCHAYAT. EXT.P5 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO. B2-20619/2007 DATED 10-01-2008 ISSUED BY THE 1ST RESPONDENT. EXT.P6 TRUE COPY OF THE RELEVANT PAGES OF THE WORKING PLAN OF NEMMARA FOREST DIVISION PREPARED BY SAJU VARGHESE ASSISTANT CONSERVATOR OF FOREST RESEARCH UNIT OLAVAKKODE DURING MARCH 2011. EXT.P7 TRUE COPY OF G.O(RT) NO. 842/79/AD DATED 21-03-1979 ISSUED BY THE GOVERNMENT. EXT.P8 TRUE COPY OF THE QUARRYING PERMIT NO. 110/GBS/DOP/ 3270/2011/A1/CRPS DATED 28-10-2011 ISSUED BY THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE CIRCULAR NO. 84339/P1/2005/R.D DATED 30-09-2005 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P10 TRUE COPY OF THE QUARRYING LEASE DATED 19-05-2008 ISSUED BY THE 2ND RESPONDENTS. EXT.P11 TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER MAINTAINED BY THE 4THR RESPONDENT. EXT.P12 TRUE COPY OF THE NOTICE NO. N2-373/2012 DATED 06-07-2012 ISSUED BY THE 3RD RESPONDENT. EXT.P13 COPY OF THE CHALAN EVIDENCING THE REMITTANCE OF Rs.1 LAKH IN THE HEAD OF ACCOUNT OF 0853-102. EXT.P14 COPY OF THE QUARRYING PERMIT NO.84/GBS/DOP/2396/2012/A1/CRCS DATED 30/07/2012 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P15 COPY OF THE UNDERTAKING DATED 05/01/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P16 COPY OF THE REPRESENTATION DATED 07/01/2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P17 COPY OF THE POSSESSION CERTIFICATE DATED 07/01/2008 ISSUED BY THE 1ST RESPONDENT.** **WP(C).No. 16411 of 2012 (B)** **EXT.P18 COPY OF THE PHOTOGRAPHS OF THE AREA SUITABLY CONVERTED BY THE PETITIONER FOR RUBBER PLANTATION, INVOLVED IN EXT.P1 AND P2 TITLE DEEDS. EXT.P19 COPY OF THE FIRST WORKING PLAN FOR NEMMARA FOREST DIVISION FROM 1969-70 TO 1983-84. EXT.P20 COPY OF THE IMPORTANCE OF WORKING PLAN DETAILED AT CLAUSE 10.2 OF THE KERALA FOREST CODE, VOL.I. EXT.P21 COPY OF THE LOCATION SKETCH INVOLVING THE PROPERTY BY EXTS.P1, P2 AND P5 NOC. EXT.P22 COPY OF THE PROCEEDINGS OF THE RESPONDENTS 1, 2 & 4 INCLUDING THE RECOMMENDATION OF THE LEARNED GOVERNMENT PLEADER OF THIS HONOURABLE COURT FOREST ISSUING NOC, RECEIVED BY THE PETITIONER, UNDER THE RIGHT TO INFORMATION ACT. EXT.P23 COPY OF THE REPRESENTATION DATED 16/07/2012 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL 7TH RESPONDENT. EXT.P24 COPY OF THE NOTICE DATED 01/08/2012 ISSUED BY THE ADDITIONAL 7TH RESPONDENT. EXT.P25 COPY OF THE LETTER DATED 08/08/2012 ISSUED BY THE ADDITIONAL 7TH RESPONDENT. EXT.P26 COPY OF THE LETTER NO.SZ/BLR/2002 DATED 28/09/2011 ISSUED BY THE MINISTRY OF LABOUR & EMPLOYMENT, DIRECTORATE GENERAL OF MINES SAFETY, SOUTHERN ZONE, BENGALURU. EXT.P27 COPY OF THE ABSTRACT OF FIRST WORKING PLAN FOR NEMMARA DIVISION FOR THE PERIOD 1969-70 TO 1983-84. EXT.P28 COPY OF THE CURRENT WORKING PLAN FOR NEMMARA FOREST DIVISION FOR THE PERIOD 2003-04 TO 2012-13. EXT.P29 COPY OF THE FORM OF ORDER OF ASSIGNMENT OF LAND ON REGISTRY FOR RUBBER CULTIVATION INVOLVED IN EXT.P1. EXT.P30 COPY OF THE FORM OF ORDER OF ASSIGNMENT OF LAND ON REGISTRY FOR RUBBER CULTIVATION INVOLVED IN EXT.P2. EXT.P31 COPY OF THE PROCEEDINGS NO.LRG 10-2012/64656/9 DATED 08/08/2012 OF THE ADDITIONAL 7TH RESPONDENT. EXT.P32 COPY OF THE PROCEEDINGS NO.LRG 10-2012/64656/9 DATED 19/09/2012 OF THE ADDITIONAL 7TH RESPONDENT. EXT.P33 COPY OF THE REPORT DATED 29/09/2012 SUBMITTED BY THE 1ST AND 3RD RESPONDENTS TO THE ADDITIONAL 7TH RESPONDENT. EXT.P34 COPY OF THE REPRESENTATION DATED 08/10/2012 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL 8TH RESPONDENT.** **WP(C).No. 16411 of 2012 (B)** ## **RESPONDENT'S EXHIBITS & ANNEXURE:-** **ANNEXURE R1A COPY OF THE REPORT OF LOCAL INSPECTION AND OTHER DETAILS PREPARED AT THE TIME OF ISSUANCE OF NOC TO THE PETITIONER.** **EXT.R3A COPY OF THE NOTIFICATION PUBLISHED IN VOLUME XLIII DATED 08/05/1909. EXT.R3B COPY OF THE DISAFFORESTATION SKETCHES. EXT.R3C COPY OF THE DISAFFORESTATION SKETCHES. EXT.R3D COPY OF THE DISAFFORESTATION SKETCHES. EXT.R3E COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER. EXT.R3F COPY OF THE JUDGMENT DATED 13/08/2009 IN W.P.(C)NO. 9605/2008. EXT.R3G COPY OF THE LETTER NO.N2-373/2012 DATED 20/07/2012 SUBMITTED BY THE 3RD RESPONDENT TO THE DIVISIONAL FOREST OFFICER, NEMMARA. EXT.R3H COPY OF THE LETTER NO.N2-373/2012 DATED 19/07/2012. EXT.R3I COPY OF THE PHOTOGRAPHS SHOWING RUBBER TREES IN ADJACENT PLOTS, GROWTH OF TREES IN NEARBY AREAS, REMOVAL OF DEEP TOP SOIL AND QUARRY. EXT.R3J COPY OF THE NOTICE NO.LRG.10-2012/64656/9 DATED 01/08/2012. EXT.R3K COPY OF THE LETTER NO.LRG.10-2012/64656/9 DATED 08/08/2012. EXT.R3L COPY OF THE LETTER DATED 19/11/2007. EXT.R3M COPY OF THE LETTER NO.F.NO.6-10/2011 WL DATED 15/03/2011. EXT.R3N COPY OF THE NOTIFICATION NO.2353 DATED 17/12/2009. EXT.R3O COPY OF THE LETTER NO.01-5860/12 DATED 03/09/2012 FROM DIVISIONAL FOREST OFFICER, NEMMARA TO WORKING PLAN OFFICER, NEMMARA. EXT.R3P COPY OF THE MAP OF PALAKKAD DISTRICT SHOWING VESTED AND RESERVE FORESTS PREPARED BY THE ASSISTANT DIRECTOR, SURVEY AND LAND RECORDS (FORESTS), PERINTHALMANNA IN THE YEAR 1976. EXT.R3Q COPY OF THE LETTER NO.F.NO.1-12/2008-NTCA DATED 26/05/2009.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.16411 of 2012 ---------------------------------------- Dated this the 3[rd] day of December 2012 ## **J U D G M E N T** Petitioner challenges Ext.P12 order issued by the Forest Range Officer, Nelliampathy Forest Range directing the petitioner to stop the functioning of 'Seethu Granites', a quarry operated by the petitioner on the ground that, on verification of the records, it is seen that the property is part of the Reserve Forest as per Cochin Government notification of the year 1909 and until a decision is taken by the authorities after a joint inspection by the forest and revenue department, quarry operation should not be done. 2. Petitioner contends that she is in possession of an extent of 2.8328 hectares of land in survey number 89 (old survey No.13), 1.3220 hectares of land in survey No.103/1 (old survey No.1100) and 1.442 hectares in survey No.103/2 (old survey number 1099) and is operating a quarry after getting all necessary licence from the competent authorities and the licence and permissions are still in force. According to the petitioner, W.P.C.No.16411/2012 2 out of the aforesaid extent of land, 2.8328 hectares of land in survey No.89 is Government land given on lease and she is permitted to carry on quarrying operations. The other two items are properties covered by assignment deeds which she had purchased as per Ext.P1 and P2 sale deeds. The properties are situated in Vallanghy village of Chittur Taluk. According to the petitioner, the Forest Range Officer has no authority to issue a notice in the form of Ext.P12 and the said Range officer is impleaded in the personal capacity as 6[th] respondent in the writ petition. 3. Ext.P12 is impugned contending that it is issued in gross violation of principles of natural justice as before issuing the said prohibitory order, no notice had been given to the petitioner. Another contention urged is that even the 6[th] respondent is not sure as to whether it is a Forest land or not. Even according to the 6[th] respondent, he has only expressed a doubt and unless it is verified with the help of revenue officials, he will not be in a position to ascertain as to whether it is Forest area or not. Still further, it is contended that without coming to a conclusion as to whether it is a forest area or not, whether the W.P.C.No.16411/2012 3 6[th] respondent can exercise his jurisdiction to stop operating quarry which is functioning with all necessary licences. It is also contended that even assuming for the sake of argument that certain portion of the land is forest, the 3[rd] respondent has no jurisdiction to stop quarrying activities in the land owned by the petitioner which she had purchased as per Ext.P1 and P2 sale deeds as it is admittedly not a reserve forest. In the said circumstances, the petitioner inter alia seeks the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P12; ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3[rd] respondent not to interfere with the quarrying operations done by the petitioner by virtue of all the statutorily required licenses/permits issued by the respondents 1, 2, 4 and 5;” 4. A counter affidavit is filed by the 3[rd] Respondent/Forest Range Officer in which it is inter alia contended that 2.8328 hectares of land in re-survey No.89 (old W.P.C.No.16411/2012 4 survey No.13) of Vallanghy village of Chittur Taluk was part of Athanad hills and notified as Reserve Forest by the Cochin Government as per notification dated 08/05/1909. During 196162, some part of the Reserve Forest was handed over to the Revenue Department under the Rubber Plantation scheme. It is however stated that 95.12 acres in survey No.13 was retained as Reserve Forest. Respondent also relies upon the judgment of the Supreme Court in **State of Karnataka and others v. I.S.Nirvane Gowda and others [(2007)15 SCC 744]** to indicate that so long as the property is not excluded by proper notification, it still remains as a Reserve Forest and quarrying inside Reserve Forest is prohibited. Hence an offence has been booked as OR 5/2012 and a report is submitted to the Judicial First Class Magistrate Court, Alathur. It is further submitted that out of the entire extent of land in old Survey No.13, only 17.98 acres have been excluded. In the affidavit it is stated that the excluded property comes under Survey No.13/A and 13/B. Therefore, it is to be verified whether property now in possession of the petitioner comes within the excluded area or not. W.P.C.No.16411/2012 5 5. While controverting the allegations made in the writ petition, the learned Government Pleader also contended that unless the fact as to whether this property comes within the Reserve Forest or not is verified, quarrying operations are to be prohibited and therefore there is justification on the part of the 3[rd] respondent to have issued such an order. 6. The petitioner filed I.A.No.10718/2012 to receive additional documents Exts.P13 and P14. Ext.P14 is the quarry permit issued by the concerned Geologist in respect of his private holdings which is valid upto 30/07/2013. Along with I.A.No.11200/2012, the petitioner had produced additional documents as Exts.P15 to P21 and specific reference is made by the learned counsel for the petitioner to Ext.P19 to indicate that in respect of Nelliampathy Range in Athanad reserve forest the entire area of 223.551 hectares is given for rubber plantation. 7. An additional affidavit is filed by the 1[st] respondent on 10/08/2012 inter alia indicating that on the basis of an interim order passed by this Court, a local inspection was conducted and Annexure R1(a) is the report of the said inspection. It is reported that an extent of 2.8328 hectares is part of 38.9750 W.P.C.No.16411/2012 6 hectares in re-survey No.89. It is also reported that quarrying operations are being carried out in the property situated in resurvey No.103/1 to 103/2 with valid explosive licence. It is further reported that there are no trees or improvements in the said property. 8. Additional 6[th] respondent has filed a counter affidavit since he is personally made a party to the proceedings. According to him, he had to take action by issuing Ext.P12 stop memo to protect Government lands as well as forests and wild life and he has no malafides in issuing the same. He denies the alleged malafides as well. 9. I.A.No.11404/2012 is filed by the petitioner to receive additional document Ext.P22 which is an affidavit filed by the 1[st] respondent along with the reports and other documents. I.A.No.11636/2012 is filed to receive additional documents Exts.P23 to P25 which are the copies of the representations submitted by the petitioner to the competent authorities with all necessary particulars to re-consider the matter in the light of the stop memo issued by the Forest Department. W.P.C.No.16411/2012 7 10. Additional counter affidavit is filed by the 3[rd] respondent further indicating that the land has been given to the petitioner for cultivation of rubber and there is no provision for removing rocks. If the genuine purpose was for cultivation of rubber in the land, there is no need for the petitioner to conduct quarrying operation. It is also indicated that the land is being used by the petitioner for operating a quarry contrary to the terms of grant. The petitioner had scraped out the fertile top soil until layer of granite is reached and has removed soil upto a depth of 10 meters to reach the granite level. It is also contended that the petitioner has violated the Rules in relation to Assignment of Government Land for Rubber Cultivation, 1960. 11. Third respondent also brings to the notice of this Court that the Ministry of Environment and Forests (Wild Life Division), Government of India has issued guidelines pertaining to non-forestry activity in wild life habitats and therefore since this property is within the eco-sensitive zone or 10 Kms from the boundary of Tiger Reserve, prior clearance from the Standing Committee of National Board of Wildlife is needed before seeking Environmental Clearance. According to him, quarry is W.P.C.No.16411/2012 8 well within the eco-sensitive zone of Parambikulam Tiger Reserve and also the land in Exts.P1 and P2 deeds is adjoining with Reserve Forests. Ext.R3(i) series are the photographs which shows the quarrying operation that are being conducted in the said property. 12. The petitioner has produced Ext.P26 along with the reply affidavit filed. Ext.P26 is the letter issued by the Director of Mines Safety, Ministry of Labour & Employment, Government of India to the petitioner granting permission under Regulation 106(2)(b) of the Metalliferous Mines Regulations, 1961 to deploy the heavy earth moving machinery and to conduct deep hole blasting from the said premises. 13. An additional counter affidavit is filed by the 3[rd] respondent producing Ext.R3(n) to R3(p). In the additional counter affidavit, it is stated that the property has been notified as Buffer Zone of Parambikkulam as per notification dated 17/12/2009 which is just 2.3 Kms away from the quarry site. It is reiterated that Athanad reserve forest has not been handed over to the revenue department and in all the handing over sketches prepared during 1962, 1964 and 1976, the area is marked as W.P.C.No.16411/2012 9 reserve forest and therefore the provisions of the Forest Conservation Act, 1980 applies to the area and non forestry activities are not permissible. Judgment of the Supreme Court in ## **T.N.Godavarman Thirumulpad v. Union of India and others** **[(1997) 2 SCC 267]** is also referred to, in order to indicate that non forestry activities are not permissible under the Forest Conservation Act so long as the property is described as forest in the Government record irrespective of ownership. Reference is also made to the judgment of the Supreme Court in **Deepak Kumar and other v. State of Haryana and others. [(2012) 4** **SCC 629]** to indicate that before starting quarry activities or extraction of minerals, clearance of Ministry of Environment and Forest has to be obtained after getting an Environment Impact Assessment. 14. A further reply had been filed by the petitioner producing Exts.P27 to P30. 15. Second additional counter affidavit is filed by the 3[rd] respondent indicating that there is an error in the working plans which is noticed only now and steps are being taken to rectify the mistake. It is reiterated that the site covered by Exts.P1 and W.P.C.No.16411/2012 10 P2 deeds and Ext.P5 is at a distance of 2.3 Kms from the Nelliampathy Reserve Forest. They have also produced Ext.R3 (b) in order to show that in the dis-afforestation sketch, the entire survey No.13 is marked as Athanad reserve forest. Therefore, it is evident that in 1975 also, the area has a status of reserve forest. It is further contended that the petitioner cannot operate a quarry in the said property as the terms of the lease does not permit such a quarry operation as the land is given only for rubber cultivation. 16. The petitioner has filed another application as I.A.No.14402 of 2012 for impleading additional respondents 8 and 9 and for producing Exts.P31 to P34 which is also allowed. Ext.34 is a representation filed by the petitioner for a joint consideration of the matter by additional respondents 8 and 9. 17. Heard Sri.Jose Kurian Kannanthanam, learned senior counsel and Sri.M.P.Madhavankutty, Special Government Pleader. 18. The main question to be considered in the writ petition is the validity of Ext.P12. Though substantial contentions had been raised and urged by the learned Special W.P.C.No.16411/2012 11 Government Pleader regarding the validity or right of the petitioner to operate a quarry in the Government owned land in violation of lease conditions, all those questions are left open to be decided in appropriate proceedings. It is open for the Government to take appropriate action for violation of lease/grant conditions if for any reason it is found that the petitioner has violated any such conditions. 19. In the present writ petition, the only point to be determined is the validity or otherwise of Ext.P12 and whether the 3[rd] respondent has the authority to issue a prohibitory order in this fashion. 20. Primary contention of the learned senior counsel for petitioner is that there is violation of natural justice. Apparently, before issuing Ext.P12, no notice had been issued to the petitioner. The question is whether any such notice is required before issuing a prohibitory order. Forest Range Officer had issued such an order proceeding on the assumption that quarrying operations are being carried out in a reserve forest. If the property in which the quarrying operations are being carried out is part of a reserve forest definitely it is open for the Forest W.P.C.No.16411/2012 12 Range Officer to issue such prohibitory orders, since under the Forest Conservation Act, no person is entitled to carry out any non forestry activities without the permission of the Central Government. Therefore, violation of natural justice cannot be a reason for the petitioner to challenge Ext.P12 if the property is considered to be a reserve forest. 21. The next question is whether any part of the property in which the quarrying operation is conducted is a reserve forest or not. There is no dispute about the fact that the property covered by survey No.13 (Re survey 89) having an extent of 223.09 hectares was notified as a reserve forest on 08/05/1909 excluding 17.98 acres. But, there is no contention that the private holdings of the petitioner covered by Exts.P1 and P2 is part of any reserve forest. Such being the position, the Forest Range Officer cannot exercise jurisdiction to stop non forestry activities in a property which is admittedly not a “reserve forest”. Ext.P12 to that extent is bad in law. As I have already indicated, there might be other reasons for stopping quarrying operations in the property covered by Ext.P1 or P2 which has to be considered by the appropriate authority and not by the Forest W.P.C.No.16411/2012 13 Range Officer who does not exercise any statutory powers to that extent. 22. Further question that may arise in this writ petition is whether the entire survey No.13 (resurvey No.89) having an extent of 223.098 hectors have been dis-reserved or not. Learned Senior Counsel placed much reliance on the first working plan for Nenmara Forest Division during the period 1969-70 to 1983-84 Part II produced as Ext.P27 to indicate that Athanad reserve forest is having an extent of 223.551 hectares and that the “entire area” is given for rubber plantation. Still further, Ext.P28, the working plan of Nenmara Forest Division of 2003-2004 to 2012-2013 of Government of Kerala, Forest and Wild Life department, is relied upon to contend that in Appendix III, it is clearly indicated with reference to Athanad reserve forest area, that the entire area is dis-reserved, cleared and handed over to revenue department for rubber plantation scheme 1961-62. But, it is the contention of the Forest Range Officer by filing an affidavit stating that it is only a mistake in the working plan which they are proceeding to correct. It is not known whether the Forest Range Officer can disown a working W.P.C.No.16411/2012 14 plan prepared and published by the Government of Kerala. Unless steps are taken by the Government of Kerala to rectify such mistakes, if at all it is a mistake, as matters stand now, we have to proceed on the basis of the working plan prepared by the Conservator of Forest for the Government of Kerala (Forest and Wild Life) Department shows the correct picture. 23. It is stated in the 2[nd] additional counter affidavit that after detecting the error, the Forest Range Officer and the District Forest Officer had initiated action to rectify the mistake. This statement, I do not think, is the correct approach to be taken especially when the working plans are prepared and accepted by the Chief Conservator of Forest who should definitely address this issue and not by any lower level officers. 24. It is argued by learned Special Government Pleader relying upon Ext.R3(a) which is the notification on 08/05/1909 with reference to Athanad in which it is indicated that: “demarcated, surveyed and mapped boundaries of S.Nos.13,166 and 173 of V.No.24, Pothundy with the following exclusions: Survey No.13. S.Nos. A and B to the south of S.No.7 of V.No.24 Pothundy and to the east of S.No.585 of V.No.23, W.P.C.No.16411/2012 15 Nenmara measuring 17 acres 98 cents respectively.” that only 17 acres and 98 cents were excluded from Athanad reserve forest. Going by the aforesaid entries in Ext.P3(a), it is correct on the part of the learned Special Government Pleader to indicate that with reference to Survey No.13 Sub division numbers A and B which lies to the south of sub division No.7 of Village No.24, Pothundy and east of Survey No.585 of Village No.23 of Nenmara measuring 17 acres and 98 cents respectively is seen excluded. It seems that sub division numbers have been given to Survey No.13 as A and B. Sub Division A was having an extent of 17 acres and sub Division B was having an extent of 98 cents which are seen excluded from the reserve. But the plan produced as Ext.R3(b) does not show the excluded portion from the reserve. 25. Therefore a reasonable doubt arises in the light of the working plan prepared by the Chief Conservator of Forest especially Ext.P28 which gives an indication of dis-reservation of the entire extent of reserve forest. If the working plan is accepted, one has to proceed on the basis that the entire area in Survey No.89 (old survey No.13) of Athanad forest is dis- W.P.C.No.16411/2012 16 reserved or excluded from forest area. Even going by Ext.R3(a), 17.98 acres is admittedly excluded. Whether the property in possession of the petitioner is part of the excluded area is also a matter to be reckoned. 26. Order of assignment of land on registry is produced as Exts.P29 and P30. The petitioner appears to have purchased the aforesaid land from the assignees. Learned Government Pleader relies upon Clause 10 of the Assignment orders, that is Exts.P29 and P30 to indicate that there is a restriction on the part of the assignee that the land shall not be used for any other purpose other than the purpose for which it is assigned, that is for rubber cultivation. In that view of the matter, it is argued that quarrying granite is not a permissible activity even as per the terms of the assignment and therefore, even if the prohibitory order is found to be without jurisdiction, in so far as the petitioner has no legal right to carry on the quarry operation in the said land, the impugned order does not suffer from any deficiency. 27. A close reading of Ext.P12 indicates that the impugned order has been issued expressing a doubt as to whether this property is still a reserve forest or not. Ext.P33 W.P.C.No.16411/2012 17 further confirms this fact. It is not in dispute that going by Ext.P27 working plan, the entire area had been given for rubber cultivation. In fact, prior to the Forest Conservation Act of 1980, the Government did not require a permission from the Central Government for assignment of forest land for cultivation purpose. It is only by virtue of Forest Conservation Act of 1980 that even the State Government ceased to have any right to assign forest lands for any non forestry purposes without permission of the Central Government. Therefore, so far as these assignments have been made much prior to the Forest Conservation Act, 1980 coming into force and especially in the light of Exts.P27 and P28 working plans it has to be prima facie inferred that the property in survey No.89 (old survey No.13) had been dis-reserved or excluded. In that view of the matter, I do not think that the doubt expressed by the Forest Range Officer is having any basis. 28. The contention that the working plan does not indicate the correct particulars and that it was a mistake is a matter which has to be thoroughly gone into by additional Respondents 8 and 9 and if the said authority comes to such a conclusion and takes appropriate measures to rectify such defects, and if it is W.P.C.No.16411/2012 18 further found that the property in possession of the petitioner is part of a reserve forest, definitely the petitioner cannot have any right to conduct any operations in the said forest area. 29. The learned senior counsel of the petitioner refers to Ext.P33 to indicate that though an enquiry was conducted without clear understanding of the relevant aspects involved in the matter, a reference to various sketches is made and it is found in the report stating that this area is a reserve forest and further enquiry is required to be done with the assistance of revenue officials to rule out as to whether this is not a reserve forest. 30. This approach of the forest department does not appear to be justifiable. If they are unable to locate a reserve forest area and demarcate it, it is very difficult to concede such a position. Merely because a person is carrying on quarrying operation, it does not mean that it is a reserve forest area nor does it become a reserve forest merely for the reason that it is near a reserve forest. That being the situation, demarcation of reserve forest area is something which ought to have been done much earlier and it is not open for a Forest Range Officer to stop W.P.C.No.16411/2012 19 an industrial unit on a mere apprehension that it is functioning in a reserve forest area. 31. Learned Special Government Pleader, however, placed reliance on the Supreme Court judgment in **Deepak Kumar and other v. State of Haryana and others. [(2012) 4 SCC 629]** to contend that as per the guidelines issued by the Supreme Court, no quarrying operation is permissible unless the total extent of area in possession is more than 5 hectares. This, according to him, are guidelines issued by the Supreme Court for enabling the Governments to frame statute in that regard. That apart, I am not considering the right of the Government to stop the functioning of the quarry on the basis of the Supreme Court judgment. In this case, I am only concerned with the validity or otherwise of Ext.P12 order. Having regard to the contention of the learned Special Government Pleader that this property is about 2.5 Kms near the Buffer Zone of a Tiger Reserve area and other forest reserve, I am of the view that such nearness shall not give a right to a Forest Range Officer to stop an industrial activity unless the statute gives him any power to do so. No specific provision of law has been brought to my notice to W.P.C.No.16411/2012 20 indicate that the Forest Range Officer has powers to issue prohibitory orders if the property is not a reserve forest. At any rate, in this case, he had issued Ext.P12 assuming that it is a reserve forest and until now according to him and as per the report now available, it is yet to be known as to whether it is a reserve forest. Further it is settled law that reasons stated in the impugned order cannot be amplified by other reasons. Ext.P12 has to stand on its own legs. 32. Additional respondents 8 and 9 are impleaded, taking into consideration the directions I intend to issue in the case. 33. Under these circumstances, I am of the view that the writ petition can be disposed of as follows: i) Ext.P12 is set aside. ii) In respect of property in possession of the petitioner and coming under re-survey No.89 (old survey No.13), the quarry operation shall be kept in abeyance for a period of two months and respondents 8 and 9 shall pass appropriate orders on Ext.P34 representation, within the said period. iii) If it is found that the property in possession of the petitioner in re survey No.89 (old survey No.13) is dis-reserved, W.P.C.No.16411/2012 21 it shall be open for the petitioner to proceed with the quarrying operations in the said area also however subject to having obtained all necessary licences/permissions, as envisaged under law. iv) If, for any reason it is found that only a portion of the property is dis-reserved as stated in Ext.R1(a), the said area has to be demarcated and made known to the petitioner. (v) If no orders are passed by respondents 8 and 9 within the said period it shall be open for the petitioner to proceed with the quarrying operations. (vi) It is made clear that this order shall not preclude the statutory authorities in controlling the quarrying operations in accordance with law. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.16411/2012 22 W.P.C.No.16411/2012 23