Kerala Sarpapakavu Samrakshana Samithi v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** **WP(C) NO. 27162 OF 2021** ## **PETITIONERS:** 1 KERALA SARPPAKAVU SAMRAKSHANA SAMITHI, TEMPLE ROAD, KODUNGOOR, KOTTAYAM 686 504, REPRESENTED BY ITS PRESIDENT DILEEP KODUNGOOR. 2 VISWAM KOOTHUPARA, SECRETARY, KERALA SARPPAKAVU SAMRAKSHANA SAMITHI, TEMPLE ROAD, KODUNGOOR, KOTTAYAM 686 504. BY ADVS. K.P.SANTHI NISHA G.THARAMAL SARIMOL KAREETHARA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. 2 PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILDE LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. 3 PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. 4 PRINCIPAL SECRETARY TO GOVERNMENT,, ARCHEOLOGICAL DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. 5 PRINCIPAL SECRETARY TO GOVERNMENT, SOCIAL AND CULTURAL DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. ADDL. R6 IMPLEADED W.P.(C). 27162/2021 2 ADDL.R6 KERALA STATE BIO DIVERSITY BOARD, KAILASAM, T.C.4/1679, (1), NO.43, BELHAVEN GARDENS KOWDIAR P.O, THIRUVANANTHAPURAM - 695 003. REPRESENTED BY THE CHAIRMAN [ADDL.R6 IS IMPLEADED AS PER ORDER DATED 02/03/2022 IN I.A.2/22 IN WP(C) 27162/21] ADDL.R7 IMPLEADED ADDL.R7 ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST, SOCIAL FORESTRY DEPARTMENT, GOVERNMENT OF KERALA, TRIVANDRUM – 695 001. (ADDL.R7 IS IMPLEADED AS PER ORDER IN I.A.4/2022 DATED 11.10.2022) ## **OTHER PRESENT:** SRI.APPU P.S(GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). 27162/2021 3 ## **JUDGMENT** Dated this the 11[th] day of October, 2022 The first petitioner is a registered trust formed with the objective of protecting serpent groves (sarpakavu) in Kerala. The second petitioner is the Secretary of the trust. The petitioners were prompted to approach this Court aggrieved by the rampant and indiscriminate destruction of 'sarpakavus' across the State. The petitioners contend that serpent groves play a vital role in preserving biodiversity and maintaining ecological balance, and are also repositories of various species of flora and fauna. The groves provide shelter to different species of snakes, small animals, birds and its thick vegetation contain many rare varieties of medicinal plants and herbs. The petitioners contend that, serpent groves being sacred places worshipped by the Hindus for the past many generations, a writ of mandamus ought to be issued, directing the State and the other respondents to include 'serpent W.P.(C). 27162/2021 4 groves' within the meaning of 'temple' and extend the benefits given to temples under the Hindu Religious and Charitable Endowments Act, 1951 to serpent groves. 2. The relief based on religious grounds being entirely within the domain of policy, a writ of mandamus directing to include serpent groves within the meaning of temples cannot be issued. At the same time, considering the importance of serpent groves in preserving ecological balance and biodiversity, as also the adverse impact caused by its indiscriminate destruction, the prospect of invoking writ jurisdiction has to be examined. 3. 'Sarpakavu', meaning 'abode of snakes', is a traditional sacred space preserved near to ancient homes in Kerala. 'Kavu' in Malayalam vernacular means 'the garden or a consortium of trees'. Serpent groves (kavukal) are seen throughout Kerala, having varied forms, cultural practices and belief systems. The traditional belief system prohibited any form of cutting or removal of trees or their parts in the grove, lest it would invite calamities in the family. The concept of sacred groves might have been conceived with the spread of W.P.(C). 27162/2021 5 agriculture. Serpent groves are classic examples of environmental protection, resulting as a bi-product of traditional beliefs, which help in preserving the area relatively undisturbed. As a consequence of the values placed on these patches of mini forest by the local community, they remained untouched for centuries. The overall societal taboo against harming or killing of snakes and fear of retribution also helped in maintaining the 'sarpakavus'. 4. Over a period of time, there occurred changes in the belief system. The increase in human population, uncontrolled flow of visitors, soil excavation works and other developmental pressures led to the deterioration and destruction of many sacred groves. Disappearance of the groves threatened the very existence of certain species of animals, especially the snakes, which were once useful to men in the biological control of pests and rodents. According to the National Environment Policy of India, ancient sacred groves are considered to be possessing incomparable values. 5. On its part, the State Government has filed a counter affidavit indicating the steps taken for preserving the serpent W.P.(C). 27162/2021 6 groves. Learned Special Government Pleader submitted that, as envisaged in the Biological Diversity Act, 2002 (the Act) and the Kerala Biological Diversity Rules, 2008 (the Rules), the Kerala State Biodiversity Board has taken several steps to conserve the rich diversity of the serpent groves. As per Ext.R6(a) Government Order dated 13.05.2013, the Biodiversity Management Committees (BMCs) constituted in terms of Section 41 of the Act and Rule 20 of the Rules have been authorised to deal with environmental issues at the Grama Panchayth level and to function as environmental hatch groups. In the 13[th] Five Year Plan, the Government made provision for grant of subsidy/financial assistance to Local Self Government Institutions for conserving and maintaining sacred groves under the management of BMCs. The Forest Range Officers are authorised to enforce the regulatory provisions of the Act as per Ext.R6(d) Government Order dated 16.01.2019. 6. No doubt, the Government's action do indicateits intention to protect the groves from destruction. The question is how far the Government has succeeded in implementing its orders and preventing destruction of the W.P.(C). 27162/2021 7 serpent groves. Here, the harsh reality is that, despite the measures taken, rampant destruction of the groves is continuing unabated. In my considered opinion, if the Government and the agencies under the Act are serious and sincere in their efforts, it is still possible to protect and conserve the remaining serpent groves. For this, it is essential to understand the the scheme of the Act. 7. The United Nations Conference on Environment and Development (UNCED) was convened in Rio de Jeneiro in the year 1992 for the purpose of conservation of biological diversity, sustainable use of its components, fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge. India being a participant and signatory to the convention, enacted the Biological Diversity Act, 2002 in accordance with the resolutions adopted in the Convention. The preamble of the Act reads as follows; “An Act to provide for conservation of Biological Diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.” W.P.(C). 27162/2021 8 Section 22 of the Act provides for establishment of State Biodiversity Boards. As per Section 23, the State Biodiversity Boards are bound to advise the State Governments on matters relating to conservation of biodiversity, sustainable use of its components and equitable sharing of the benefits arising out of the utilization of biological resources. Section 37 empowers the State Governments to notify areas of biodiversity importance as 'Biodiversity Heritage Sites'. This has to be done in consultation with the local bodies. As per Section 37(3), the State Government has to frame schemes for compensating and rehabilitating any person or section of people economically affected by such notification. For this purpose, every local body has to constitute a Biodiversity Management Committee (BMC) within its area, as mandated by Section 41. The BMCs are formed for the purpose of promotion, conservation, sustainable use and documentation of biological diversity, including preservation of habitats, conservation of land races, folk varieties and cultivars. As per Section 47, every local body constituting a BMC under subsection (1) of Section 41 shall cause an annual report to be W.P.(C). 27162/2021 9 submitted to the District Magistrate having jurisdiction over the area of the local body. Section 63 empowers the State Government to make Rules for carrying out the purposes of the Act. 8. The State Government has formulated the Biological Diversity Rules, 2008 in accordance with Section 63 of the Act. Rule 12 deals with the functions of the State Biodiversity Board ('Board' for short), which include collection, compilation and publication of technical and statistical data, manuals, codes and guides relating to conservation of biological diversity. The Board is bound to compile a complete data base on the biodiversity resources in the State and develop State wide strategy for implementing biodiversity programmes. The Board has to identify the natural habitat of useful biological community by enlisting the services of the locally available experts. It has to organize comprehensive programmes for giving effect to the purposes of the Act and should give timely directions to the BMCs for effective implementation of the Act and for facilitating meaningful participation in all measures relating to conservation, sustainable use and equitable benefit W.P.(C). 27162/2021 10 sharing. Rule 20 elaborately deals with the constitution of BMCs. As per Rule 20(7), the BMCs have to ensure conservation, utilization and equitable sharing of the benefits of biodiversity in the local area. The BMCs should also facilitate the preparation of People's Biodiversity Registers at Grama Panchayat/Municipality/Municipal Corporation levels. The Register shall contain comprehensive information on availability and knowledge of local biological resources, their medicinal or other use or any other traditional knowledge associated with them. Rule 20(9) require the Grama Panchayath level BMCs to strive for mainstreaming biodiversity concerns in the developmental planning progress at the local level. 9. In this context, Annexure R6(b) guidelines of the Central Government, pertaining to the selection and management of Biodiversity Heritage Sites (BHS) assumes relevance. It is pertinent to note that the guidelines envisage declaration of areas like existing sacred groves in general and those existing in the western ghats in particular as Biodiversity Heritage Sites. Clause 3 of the guidelines defines 'Biodiversity W.P.(C). 27162/2021 11 ## Heritage Sites' as under; "Biodiversity Heritage Sites" (BHS) are well defined areas that are unique, ecologically fragile ecosystems - terrestrial, coastal and inland waters and, marine having rich biodiversity comprising of any one or more of the following components: richness of wild as well as domesticated species or intra-specific categories, high endemism, presence of rare and threatened species, keystone species, species of evolutionary significance, wild ancestors of domestic/cultivated species or their varieties, past pre-eminence of biological components represented by fossil beds and having significant cultural, ethical or aesthetic values and are important for the maintenance of cultural diversity, with or without a long history of human association with them.” The guidelines envisages the Biodiversity Heritage Sites to be a matter of pride and honour to the community. The criteria for identification of BHS is laid down in Clause 4 of the guidelines. Clause 6 elaborately deals with the management of BHS. As per Clause 6, the primary responsibility of managing BHS is vested with the BMCs. The activities of the BMCs are to be monitored by a State Level Board. 10. A conjoint reading of the statutory provisions and the guidelines, unequivocally show that, if concerted action is taken by all concerned, the threat posed to the serpent groves W.P.(C). 27162/2021 12 (BHS) can be averted to a large extent. Even without any specific legislation, the public trust doctrine cast a duty on the State to take immediate measures for protecting the serpent groves and thus conserving the environment. To quote an American proverb “We do not inherit the earth from our ancestors, we borrow it from our children”. We need to care for the environment because it is the only one we have and all of us being under an obligation to conserve it for our future generations. Hence, I find enough reason for this Court to intervene and issue directions in exercise of the power under Article 226 of the Constitution of India. Accordingly, the following directions are issued; i. Every local body shall constitute Biodiversity Management Committees within its area, as mandated under Section 41 of the Act and Rule 20 of the Rules, within two months. ii. The Biodiversity Management Committees thus constituted shall, forthwith, prepare the Peoples' Biodiversity Register at Grama Panchayat/ Municipality/Municipal Corporation levels. W.P.(C). 27162/2021 13 iii. The State Government shall, in consultation with the local bodies, notify the serpent groves identified as Biodiversity Heritage Sites by the Biodiversity Management Committees within three months. iv. Simultaneously, the State Government shall frame schemes for compensating or rehabilitating any person or section of people, who may be economically affected by such notification. v. Till the above directions are implemented, the State, and the Kerala State Biodiversity Board shall ensure that the serpent groves, identified as Biodiversity Heritage Sites, are preserved as such. Sd/- ## **V.G.ARUN** ## **JUDGE** ## sb The directions in the concluding paragraph of the judgment dated 11/10/2022 in WP(C) 27162/2021 are corrected and substituted as under; as per order dated 28/02/2023 in WP(C) 27162/2021. W.P.(C). 27162/2021 14 “i. Every local body shall constitute Biodiversity Management Committees within its area, as mandated under Section 41 of the Act and Rule 20 of the Rules, within two months from the date of receipt of a copy of this judgment. ii. Immediately on receipt of a copy of this judgment, the Biodiversity Management Committees shall prepare the Peoples’ Biodiversity Register at Grama Panchayat/Municipality/Municipal Corporation levels. iii. The State Government shall, in consultation with the local bodies, notify the serpent groves identified as Biodiversity Heritage Sites by the Biodiversity Management Committees within three months from the date of receipt of a copy of this judgment. iv. Simultaneously, the State Government shall frame schemes for compensating or rehabilitating any person or section of people, who may be economically affected by such notification. v. Till the above directions are implemented, the State and the Kerala State Biodiversity Board shall ensure that the serpent groves, identified as Biodiversity Heritage Sites, are preserved as such.” Sd/- DEPUTY REGISTRAR W.P.(C). 27162/2021 15 ## **APPENDIX OF WP(C) 27162/2021** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TRUST DEED NO. 421/2008 OF S.R.O. KOTTAYAM. Exhibit P2 TRUE COPY OF REPRESENTATION DATED 20.11.2021 SUBMITTED TO THE PRINCIPAL SECRETARY TO GOVERNMENT Exhibit P3 TRUE COPY OF REPRESENTATION DATED 20.11.2021 SUBMITTED TO THE PRINCIPAL SECRETARY TO ARCHAEOLOGY DEPARTMENT. Exhibit P4 TRUE COPY OF REPRESENTATION DATED 19.11.2021 SUBMITTED TO THE ADDL. PRINCIPAL CHIEF CONSERVATOR OF FORESTS (SOCIAL FORESTRY). Exhibit P5 TRUE COPY OF REPRESENTATION DATED 20.11.2021 SUBMITTED TO THE ADDL., SECRETARY REVENUE DEPARTMENT. EXT. P6 TRUE COPIES OF THE LIST SHOWING THE NAMES OF SNAKE GROVES WHICH ARE PROVIDED FINANCIAL AID BY THE FOREST DEPARTMENT YEAR 2017-2018 AND 20182019. TRUE COPIES OF THE LIST SHOWING THE NAMES OF EXT. P6(a) SNAKE GROVES WHICH ARE PROVIDED FINANCIAL AID BY THE FOREST DEPARTMENT YEAR 2010-2011 TO 20202021 IN MALAPPURAM DISTRICT. EXT. P(b) TRUE COPIES OF THE LIST SHOWING THE NAMES OF SNAKE GROVES WHICH ARE PROVIDED FINANCIAL AID BY THE FOREST DEPARTMENT YEAR 2010-2011 TO 20202021. TRUE COPIES OF THE LIST SHOWING THE NAMES OF EXT. P6(c) SNAKE GROVES WHICH ARE PROVIDED FINANCIAL AID BY THE FOREST DEPARTMENT YEAR 2011-2012 TO 20202021 IN THRISSUR DIST. TRUE COPIES OF THE LIST SHOWING THE NAMES OF ## W.P.(C). 27162/2021 |W.P.(C). 27162/2021|| |---|---| ||16| |EXT. P6(d)|SNAKE GROVES WHICH ARE PROVIDED FINANCIAL AID BY| ||THE FOREST DEPARTMENT YEAR 2009-2010 TO 2020-| ||2021.| |EXT. P7|TRUE COPY OF G.O.(RT) NO. 485/2016/F & WLD| ||DATED 24.12.2016| ||TRUE COPY OF G.O.(RT) NO. 19/2019/F &WLD DATED| |EXT. P8|16.1.2019.| |EXT. P9|TRUE COPY OF LETTER DATED 24.8.2019 REGARDING| ||THE DESTRUCTION OF AYILYAM KAVU AT VAZHAKALA.| |RESPONDENT ANNEXURES|| |Annexure R6(a)|True copy of the G.O(P)No: 04/13/Envt dated| ||13.05.2013| |Annexure R6(b)|True copy of the guideline for selection and| ||management of the BHS issued by the National| ||Biodiversity Authority.| |Annexure R6(c)|True copy of the guidelines formulated for| ||allocation of fund from the plan fund of the| ||respective Local Self Government.| |Annexure R6(d)|True copy of the government order vide ref. no.| ||GO(Rt) No. 19/2019/FWLD dated 16.01.2019.|