Binu V v. Divisional Forest Officer, Malayattoor Forest Division, Kodanad & Forest Range Officer, Kodanad

W.P(c).No.6349/2020-P 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942 WP(C).No.6349 OF 2020(P)** ## **PETITIONER:** **BINU.V AGED 50 YEARS S/O.VISWAMBARAN, VATTAKAITHAYIL HOUSE, SIVANKOVIL ROAD, PUNALUR, KOLLAM DISTRICT, PIN-691 105.** **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS:** **1 DIVISIONAL FOREST OFFICER MALAYATOOR FOREST DIVISION, KODANAD, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 544. 2 FOREST RANGE OFFICER KODANAD FOREST RANGE, KODANAD, ERNAKULAM, PIN-683 544.** ## **SPL.G.P (FOREST) SRI.SANDESH RAJA.K.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).No.6349/2020-P 2 ## **JUDGMENT** The petitioner has filed this Writ Petition complaining that Forest officials are obstructing him while taking his motor vehicle to his property where a magazine store is also there with licence issued in his name. 2. Petitioner states that he purchased 47.50 Ares of land in Re.Sy.No.88/3-1 and 15.32 Ares of land in Re.Sy.Nos.87/21 and 61/1-196 of the Kombanad village as per Exts.P1 and P1(a) sale deeds dated 14.08.2018 and 23.03.2019 respectively, from one Thomas Abraham. Sri. Thomas Abraham had a magazine in the said property to store explosives for which Ext.P2 NOC was given to him by the Deputy Chief Controller of Explosives. On purchase of the property, the Deputy Chief Controller ordered transfer of the licence in the name of the petitioner and Ext.P4 licence was issued to him on 18.09.2018. It is W.P(c).No.6349/2020-P 3 stated that his land is surrounded by acacia plantation maintained by the Hindustan Newsprint Limited, in the 8000 hectares of land leased out by Government. It is stated that there are roads, as shown in Ext.P5 in this acacia plantation through which the Hindustan Newsprint has been taking heavy vehicles for transportation of timber. The petitioner states that he as well as his predecessor in interest and the residents of about 10 families residing in the enclosures in the reserve forest had been using Ext.P5 road to their properties/buildings. But the Forest officials are not permitting him to take vehicles through the roads in the acacia plantation stating that it is a reserve forest and therefore he is unable to store explosives in the magazine. It is stated that the roads were being used by the residents/by occupiers of the enclosures for the last more than 50 years. It is also his case that the respondents started raising such objections only after he purchased the property. W.P(c).No.6349/2020-P 4 3. The 1[st] respondent has filed a statement, according to which, petitioner's magazine is located in Perumala Kandom enclosure which is surrounded by Kottappara reserve forest which was notified as per Ext.R1(b) notification in the year 1925. It is also stated that the acacia plantation of the Hindustan News Print Ltd. is being raised by it in the land leased out to it and that the Forest Department has taken steps to take back the acacia forest from it and to convert the same to natural forest. It is further stated that on coming to know about the magazine store functioning in Perumala Kandom enclosure the District Collector had issued Ext.R1(a) order cancelling NOC granted to the petitioner's predecessor. It is stated that the magazine store in the enclosure is located adjoining the wildlife in the abundant forest and that there was every chance of damage being done to the godown by wild elephants and that is likely to result in explosion. The respondents have stated that there W.P(c).No.6349/2020-P 5 are six enclosures inside the Kottappara reserve to which a footpath of 7 feet width alone is permitted and none of the residents are allowed to use the road for commercial purposes. According to the respondents, the acacia plantation is also raised for other forestry purposes and no commercial purpose which amounts to non forestry activity, can be permitted in this area. 4. 4. The petitioner has filed a reply affidavit stating that Ext.R1(a) order cancelling the NOC was issued to the petitioner's predecessor after the licence was transferred to his name. It is stated that the said order is already set aside by this Court in the judgment in W.P(c).No.35724 of 2018 filed by the petitioner. It is stated that though the District Collector was directed to pass fresh orders after hearing the petitioner, so far no further action is taken. The petitioner has got a case that the approach of the respondents towards the petitioner is discriminatory because he alone is being obstructed from taking his goods W.P(c).No.6349/2020-P 6 vehicle while all others residing in the enclosures are permitted to use the road. It is also stated that the Hindustan News Prints used to bring lorries and large trucks through the road for the purpose of transporting acacia timber. According to the petitioner, the action of the respondents is also in violation of his constitutional right under Article 300A. 5. Relying on the judgments of this Court in _**State of Kerala & Ors. v. Ravi C.A & Ors.**_ [2015 (5) KHC 397] and in _**Nature Lovers Movement v.**_ _**State of Kerala & Ors.**_ [1996 KHC 255], the learned Counsel for the petitioner argued that the right of the petitioner to use the road Ext.P5 and to take vehicle to his property through that road cannot be curtailed even if it is through a reserve forest. 6. I have considered the arguments advanced by Sri. V.M.Krishnakumar, the learned Counsel for the petitioner, and Sri. Sandesh Raja, the learned Special Government Pleader for Forests. W.P(c).No.6349/2020-P 7 7. It is seen admitted that the enclosure in which the petitioner's magazine is situated, is surrounded by reserve forest. Petitioner has also stated that enclosures including the pathway to the enclosures are not vested in forest or Government. According to the respondents, the said pathway permitted to the enclosures is having the width of only 7 feet and therefore no vehicles can be permitted to be used for commercial or nonforestry purposes. 8. In the judgment in W.A.No.971/2018, which affirmed the judgment in W.P(c).No.33526/2017, relied on by the learned Special Government Pleader, this Court held that the petitioners therein did not have any authority to insist user of road passing through teak plantation under the respondents, even if it was being used for running the crusher unit. The contention of the petitioners therein was that the road in question was used for transportation of materials to the crusher unit which was being there for the last W.P(c).No.6349/2020-P 8 several years. The contention of the Forest Department was that it is a notified reserved forest and the Forest Department had not granted permission to anybody to use the road for transportation of materials. Even though the appellants therein argued that the said crusher unit had been functioning there for several years, this Court did not permit them to continue the use of the road through the reserve forest. In the judgment in W.P.(C).No.33526 of 2017 also this Court did not allow a similar claim raised for using the road to the crusher unit of the petitioner therein, though it was claimed that the unit had started functioning in 1997. It was held that forest area cannot be permitted to be used for any commercial activity in accordance with the Forest Conservation Act as well as Kerala Forest Act, 1961. 9. Even though the learned counsel for the petitioner relied on the judgment _**State of Kerala & Ors. v. Ravi C.A & Ors.**_ ( _supra_ ), it is seen that W.P(c).No.6349/2020-P 9 there the question was relating to drawing of electric line through a forest road. As pointed out by the learned Special Government Pleader, in that case this Court was considering the case of a tribal to get electric line drawn to his dwelling, which is governed by Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Section 3 of the said Act provides for the rights of the traditional forest dwellers to live in the forest land. Section 3(2) provides for diversion of forest land notwithstanding the provisions contained in the Forest Conservation Act, for certain facilities managed by Government mentioned therein on certain conditions. Electric and communication lines is one among such facilities. Therefore, it was directed that the Forest Department cannot deny sanction for drawing electric line saying that permission from the Central Government is necessary again to implement a scheme propounded by the Central Government itself. Therefore, that W.P(c).No.6349/2020-P 10 judgment will not apply to the facts of this case. 10. The judgment in _**Nature Lovers Movement v. State of Kerala & Ors.**_ ( _supra_ ) was one where the nature lovers movement approached this Court challenging the construction of a road by the Hindustan Newsprint alleging that prior approval from Central Government was not obtained for the same in accordance with the Forest (Conservation) Act, 1980. The contention of the respondents was that the construction of road to reach the plantations is for conservation, development and management of forest. This Court found that the road was not laid for any private purpose but to honour the commitment entered into between the State Government and the Hindustan Paper Corporation Ltd. which is a Government of India undertaking and the Government had agreed to supply raw materials like eucalyptus, reeds and other pulpwood for the newsprint factory. It was also found that the plantation was yielding pulpwood, wattlewood etc. and the Hindustan W.P(c).No.6349/2020-P 11 Newsprint project is a forest based industry. It was in that context that this Court had occasion to hold that construction of road in such circumstances was not for non-forestry purpose and declined interference. It is relevant to note that by the very same judgment this Court cautioned the Government that it should be guided by the mandates under Article 48A of the Constitution of India to protect and improve the environment and to safeguard the wildlife. This Court also observed that it is the fundamental duty of citizens under Article 51A(g) to protect and safeguard the forest. This Court did not interfere with the steps taken by the Government and the Hindustan Newsprint, taking note, also, of the fact that the road was already laid. There is nothing in that judgment which would help the petitioner. 11. In the present case the petitioner himself admits that the road through which he wants to take vehicle is in a reserve forest. 12 W.P(c).No.6349/2020-P He wants the vehicular traffic for transportation of explosives, which is for commercial activity, which is impermissible under the Forest Conservation Act as well as Kerala Forest Act. The petitioner cannot have any fundamental right to take vehicles through a reserve forest contrary to the provisions in those statutes. 12. Therefore, I am of the view that the claim of the petitioner that he should be permitted to use the forest road to take his vehicles through it, is unsustainable. Accordingly, the Writ Petition is dismissed with liberty to the petitioner to resort to other remedies available, if any. **P.V.ASHA JUDGE** ww/rtr W.P(c).No.6349/2020-P 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED SALE DEED NO.1459/2018 DATED 14.8.2018.** **EXHIBIT P1(A) TRUE COPY OF THE REGISTERED SALE DEED NO.653/2019 DATED 23.3.2019.** **EXHIBIT P2 TRUE COPY OF THE NOC ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE ERNAKULAM TO THOMAS FOR GETTING EXPLOSIVE LICENSE IN BLOCK NO.III RE.SY.NO.88/1-2-3 OF KOMBANAD VILLAGE ALONG WITH TYPED COPY.** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES DATED 19.9.2018.** - **EXHIBIT P4 TRUE COPY OF THE LICENSE IN FORM NO.LE3 ISSUED TO THE PETITIONER DATED 18.9.2018.** - **EXHIBIT P5 PHOTOGRAPHS SHOWING ROADS WITHIN THE ACACIA PLANTATION OF HINDUSTAN NEWSPRINT LIMITED FOR TAKING TRUCKS FOR TRANSPORTING ACACIA TIMBER.** - **EXHIBIT P6 TRUE COPY OF THE LICENSE IN FORM NO.L3 ISSUED TO THE PETITIONER DATED 30.01.2020.** **RESPONDENTS' EXHIBITS** - **ANNEXURE R1(a) TRUE COPY OF THE ORDER NO.DCEKM/1904/2018M4 DATED 11.10.2018.** **ANNEXURE R1(b) TRUE COPY OF THE RESERVE NOTIFICATION OF KOTTAPPARA RESERVE.**