W.P.(C) Nos.29698 of 2013 & 39527 of 2016

1 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** **&** ## **THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945** ## **WP(C) NO.29698 OF 2013** ## **PETITIONER/S:** - **1 P.K.BHASKARAN, AGED 81 YEARS S/O.KADUTHA, CHAIRMAN, MALA ARAYA SAMYUKTHA SAMITHI, RESIDING AT PUTHUPPARAMBIL, KAIPPALLY PO, POONJAR, KOTTAYAM DISTRICT-686582.** **2 K.K.GANGADHARAN CONVENOR, MALA ARAYA SAMYUKTHA SAMITHI, RESIDING AT KOCHERIL, SP 19/265, A.K.G.NAGAR, PANGAPPARA P.O., THIRUVANANTHAPURAM-685581.** - **3 P.K.DIVAKARAN** **JOINT CONVENOR, MALA ARAYA SAMYUKTHA SAMITHI, RESIDING AT PUTHENPURACKAL HOUSE, MOOZICKAL, KORUTHODE P.O., KOTTAYAM DISTRICT-686513.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.AMMU CHARLES SRI.M.MANOJKUMAR CHELAKKADAN SRI.S.M.PRASANTH SRI.K.T.SIDHIQ** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE SECRETARY TO GOVERNMENT** - **DEPARTMENT OF FOREST, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** - **3 THE TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY** 2 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 ## **ITS SECRETARY.** **4 THE PANTHALAM KOVILAKAM REPRESENTED BY THE PRESENT RAJA SRI.VISAKHAM THIRUNAL P RAMA VARMA RAJA, PANDALAM KOTTARAM, PANDALAM, PATHANAMTHITTA DISTRICT-689501.** **5 THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHUTHY BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** **BY ADVS. SR.GOVERNMENT PLEADER SRI.S.RAJMOHAN BIJU.G, STANDING COUNSEL, TRAVANCORE DEVASWOM BOARD SMT.P.K.RADHIKA-KSEB SRI.N.SATHEESH SRI.KRISHNA MENON, SC, TRAVANCORE DEVASWOM BOARD SRI.N.RAPHY RAJ, SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **OTHER PRESENT:** **SRI NAGARAJ NARAYAN- SPL GOVERNMENT PLEADER (FORESTS); SRI G.BIJU- STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **16.11.2023, ALONG WITH WP(C).39527/2016, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING:** 3 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945** ## **WP(C) NO. 39527 OF 2016** **PETITIONER/S:** **DEPUTY DIRECTOR, PERIYAR TIGER RESERVE PERIYAR (WEST), FOREST DIVISION, IDUKKI.** **BY SRI NAGARAJ NARAYAN- SPL GOVERNMENT PLEADER (FORESTS)** ## **RESPONDENT/S:** - **1 KERALA STATE COMMISSION FOR SCHEDULED CASTES AND SCHEDULED TRIBES, AYYANKALI BHAVAN, KANAKA NAGAR, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MEMBER SECRETARY.** - **2 TRAVANCORE DEVASWOM BOARD HEAD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** **3 RAHUL ISWAR, PERIYAMANA ILLAM, E-5 SUFFAIR, T.C 14/566, VIKAS BHAVAN P.O., NANDAVANAM, THIRUVANANTHAPURAM-695033.** - **4 K.K. GANGADHARAN PRESIDENT, AKHILA THIRUVITHAMCORE MALAYARAYAMAHASABHA, PUNCHAVAYAL P.O. - 686 513.** - **5 N. SREENIVASAN KOZHIKODE UDUMBANNOOR VILLAGE, VELLANTHANAM KARAYIL, IDUKKI.** - **6 K.N. GOPALAKRISHNAN KARAPLAKKAL, KAKETTY, KANAMALA P.O., PEERUMEDU, IDUKKI.** - **7 K.N. PRABHAKARAN KANNAD, MUZHIKKAL KARAYIL, KORUTHODU P.O., PEERUMEDU, IDUKKI.** 4 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 - **8 P.K. DIVAKARAN MOOZHIKKALKARAYIL, KORUTHODU P.O., PEERUMEDU TALUK, IDUKKI.** - **9 SECRETARY TRAVANCORE PALACE, KOWDIAR, THIRUVANANTHAPURAM.** - **10 P.G. SASIKUMAR VARMA PRESIDENT, PANDALAM KOTTARAM NIRVAHAKA SANGHAM, PANTHALAM.** - **11 KANDARARU MAHESWARAR THAZHAMON MADOM, MUNDANKAVU, CHENGANNUR.** - **12 KANDARARU RAJEEVARU THAZHAMON MADOM, MUNDANKAVU, CHENGANNUR.** **BY ADVS. C.D.ANIL SRI.S.RAJMOHAN, SR. GOVT. PLEADER SMT.M.SANTHI (K/868/2011) SMT.ASHA BABU SRI.C.D.ANIL ASHA BABU ASWINI SANKAR R.S. S.M.PRASANTH K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI RENJIT GEORGE SABIN BABU SRI.G.BIJU, SC, TDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2023, ALONG WITH WP(C).29698/2013, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING:** 5 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 ## **JUDGMENT** ## Anil K. Narendran, J. The issues involved are intertwined and hence the writ petitions are disposed of by this common judgment. 2. W.P.(C)No.29698 of 2013: The petitioners, who are the office bearers of Mala Araya Samyukta Samithi, an organisation which is standing for protecting the interest of Mala Araya community in the State of Kerala, have filed this writ petition, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a declaration that the denial of performing religious functions on the Makaravilakku day every year at Ponnambalamedu in Sabarimala by the Hindu Mala Araya community is violative of Articles 14, 25 and 26 of the Constitution of India; a declaration that after the judgment of this Court in **Sreeni Pattathanam and another v. State of Kerala and others [2011 (3) KLT 257]** the rights of Hindu Mala Araya community to light the lamp at Ponnambalamedu on Makaravilakku day shall not be prevented in an unauthorised manner by anyone including the Travancore Devaswom Board, the Kerala State Officials or the Kerala State Electricity Board; and a writ of mandamus forbearing the Travancore Devaswom Board, the officials of the State of Kerala and the Kerala State Electricity 6 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 Board from interfering in any manner with the entry of members of the Hindu Mala Araya Community at Ponnambalamedu and lighting the Makaravilakku on the Makaravilakku day, without any hindrance. 2.1. Going by the averments in the writ petition, the members of Hindu Mala Araya community were originally living in the woodland of Thodupuzha, Meenachil and Changanassery Taluk in the State of Kerala. Their original home was at Chingampara and Karimala in Ranni Reserve Forest. Eventually, they migrated to several places. The Maharaja of Travancore conceded several rights to them considering their intense belief in the Sasthavu of Sabarimala. Their rights are recognised by the Royal Family of Pandalam as well. One of such rights is to conduct poojas at Ponnambalamedu and lit Makarajyothi on Makaravilakku day every year at Ponnambalamedu. In many literatures, including Travancore Tribes and Castes Volume-I, that right has been described and recognized. However, on 15.01.2011, when members of Mala Araya community attempted to reach Ponnambalamedu to light the lamp on Makaravilakku day with all its religious fervour, they were obstructed by the police. As early as in the year 1953 itself, Mala Araya Samajam submitted Ext.P2 application to the Devaswom Assistant Commissioner seeking 7 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 protection of their religious rights in the Sabarimala Temple. They submitted Exts.P3, P4, P5 and P6 representations/petitions before various authorities in that regard. Despite such representations/petitions, their right is being denied, which is violative of Articles 25 and 26 of the Constitution of India. In such circumstances, they have filed this Writ Petition. 2.2. The 2[nd] respondent filed a counter affidavit denying that the petitioners have right to light Makarajyothi at Ponnambalamedu on Makaravilakku day. It is contended that Ponnambalamedu is in the dense forest, which is part of Periyar Tiger Reserve. It is part of the critical tiger habitat of Periyar Tiger Reserve, which was declared so in the year 2007. An extent of 881 sq.km. was declared as core for critical tiger habitat and an extent of 44 km. was declared as a buffer zone to the Periyar Tiger Reserve. Originally the area was part of critical range in Ranni Forest Division. After such notification, only persons who are allowed to enter the area are the duty-bound forest personnel and other duty-bound officials. On Makaravilakku day, every year, Makarajyothi is lit at Ponnambalamedu with the involvement of the officials of the Kerala Forest Department, the Travancore Devaswom Board and the Kerala State Electricity Board. It is being done as per the directions of this Court in the judgment 8 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 dated 25.04.2011 in W.P.(C) No.2361 of 2011. Being a Tiger Reserve of high preservation significance, no outsiders can be permitted to reach Ponnambalamedu. It is incorrect that the members of the Mala Araya Tribe stayed in the area. From 01.10.1901 onwards the area has been part of Ranni Reserve Forests and therefore the petitioners’ claim is totally untenable. From their claim that they originally were the inhabitants of Chingampara and Karimala itself would reveal that they never had been at Ponnambalamedu. If there was any right existed as claimed by the petitioners, it should have been stated in the Gazette Notification dated 01.10.1901, as per which Ranni Reserve Forests was constituted. In every such notification the right then existed used to be stated. In the absence of mentioning of such a right in the notification, it can only be inferred that the claim of the petitioners is unfounded and without any basis. It is therefore incorrect that the tribal clan of Mala Araya community was given by the Maharaja of Travancore the right to light Makarajyothi at Ponnambalamedu. Entry of a private individual in the Periyar Tiger Reserve is prohibited. This Court by repeated directions highlighted the importance of preserving the ecological environment in the reserve forest and therefore the claim of the petitioners is liable to be rejected outright. 9 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 2.3. The 3[rd] petitioner claims that he is the Chairman of Nambupara Eco Development Committee (EDC) of Periyar West Division. Every activity of an EDC is based on a Microplan evolved in that regard. In such Microplan also nothing about the rights of Mala Arayans to perform rituals or light the Makarajyothi at Ponnambalamedu has been stated. Mala Arayans are not the only tribal sect in the forests in Kerala. The petitioners have not produced any material or evidence to show that such a right was conferred to the Mala Arayans specifically. Their claims in respect of the shrines at Mangala Devi, Agasthyakoodam and Ponmudi are also without any basis and are incorrect. Accordingly, the 2[nd] respondent sought to dismiss the petition. 3. W.P.(C) No.39527 of 2016: The petitioner, namely, the Deputy Director, Periyar Tiger Reserve, West Division, is aggrieved by the proceedings initiated by the 1[st] respondent Kerala State Commission for Scheduled Castes and Scheduled Tribes based on Exts.P1 to P4 petitions and Ext.P10 notice. Ext.P10 is a notice issued by the 1[st] respondent informing that at 11 O'clock on 18.11.2016 there will be a meeting of the Commission to enquire about the claim in Ext.P1 petition submitted by the 3[rd] respondent. In the writ petition, the petitioner is seeking a writ of prohibition calling for the records relating to the proceedings 10 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 pursuant to Ext.P10 notice dated 13.10.2013 and prohibit the 1[st] respondent Kerala State Commission for Scheduled Caste and Scheduled Tribe from proceeding further in the said proceedings; a writ of certiorari to quash the proceedings before the 1[st] respondent Commission pursuant to Ext.P10 notice; and a writ of prohibition or any other appropriate writ, order, direction prohibiting the 1[st] respondent Commission from directly conducting local investigation at Ponnambalamedu in Periyar Tiger Reserve. 3.1 Ext.P1 as well as Exts.P2 to P4 petitions/representations were in regard to the claim of members of Mala Araya Community that they have the right to lit Makarajyothi on Makaravilakku day every year. The claims raised in Exts.P1 to P4 were supported by the pleadings raised in W.P. (C)No.29698 of 2013. The contentions raised by the 2[nd] respondent in his counter affidavit in answer to the pleadings in that writ petition are the contentions raised in W.P.(C)No.39527 of 2016 as well. In addition, the petitioner would contend that the 1[st] respondent-Commission does not have any jurisdiction to enquire into Exts.P1 to P4 petitions. The right claimed in the said petitions/representations is not the right of a Scheduled Tribe or for any member of a Tribe, instead, it was a traditional right which 11 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 can be sustained only on establishing the custom. The Commission has no authority to enquire into such a claim, which can be the subject matter of a civil suit only. 3.2. The 1[st] respondent through its Registrar informed that the Commission along with other officials would be visiting Ponnambalamedu as part of enquiry on the said petitions. Other than the duty bound officials of the Forest Department and others who are permitted, no one can enter Ponnambalamedu, which is part of Periyar Tiger Reserve. Therefore, the proposal of the 1[st] respondent to visit Ponnambalamedu cannot be permitted. Pointing out aspects the petitioner seeks for the aforesaid reliefs. 3.3. The 4[th] respondent filed a counter affidavit on behalf of himself and respondent Nos.5 to 8. They refute the contentions of the petitioner that the 1[st] respondent lacks jurisdiction to enter into the claims set forth in Exts.P1 to P4 petitions/representations. The 1[st] respondent is a statutory commission having every right to visit Ponnambalamedu to ascertain the true state of affairs. It is incorrect that Ponnambalamedu is a secluded area with the area reserved, having no access to anyone, other than the forest officials. It is practically a tourist centre now and vehicles including public transport buses are permitted along the road just 5 kms. away 12 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 from Ponnambalamedu. More than 500 Acres of land near Ponnambalamedu have been allotted to the repatriates from Sri Lanka, where those people are residing. Respondents 4 to 8 accordingly seek to dismiss the petition. 3.4 The petitioner has filed a reply affidavit refuting the allegations in the said counter affidavit. Paragraphs 5 to 7 of the reply affidavit read thus; “5. The averments in paragraph 5 of the counter affidavit of respondents 4 to 8 are either incorrect or baseless and hence denied. The averment that the Forest Department is undertaking lots of activities in relation to tourism at Gavi is incorrect. The eco-tourism activities at Gavi are being run by the Kerala Forest Development Corporation (hereinafter "KFDC") and not run by the Kerala Forest Department. Further the eco-tourism activities run by the KFDC comes within the Goodrikal Forest Range at Ranni Division and are fully regulated and restricted by the Ranni Forest Division on the basis of the principles of carrying capacity and the guidelines laid down for forest based ecotourism based on studies. Moreover, the Gavi ecotourism area is far away from Ponnambalamedu area and there is an aerial distance of about 6 kilometers between Gavi eco-tourism area and Ponnambalamedu and by foot, the distance will be more than 8 kilometers. 6. Further the arguments of respondents 4 to 8 in paragraph 5 of the counter affidavit based on the ecotourism activities, plantations and Srilankan Colony at Gavi and the road passing through the forest are baseless for the following reason also. There are several undulating 13 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 hillocks, precipitous cliffs, valleys and different forest types in between Gavi and Ponnambalamedu which renders Ponnambalamedu fully secluded, protected and isolated from the Gavi area. Similarly, the road running through forest from Kochupampa to Gavi, the plantations and labour lanes of KFDC at Gavi, the Pachakkanam Private Plantation at Pachakkanam and the Srilankan colony at Gavi are all far away from Ponnambalamedu. Besides, these areas mentioned above at Gavi themselves being areas with high wildlife presence and density, the Ponnambalamedu is fully secluded, protected and isolated from these areas in Gavi through a series of undulating hillocks, precipitous cliffs, valleys and different forest types situated between Ponnambalamedu and these areas. 7. The allegation of the respondents 4 to 8 in paragraph 5 of the counter affidavit that there is heavy bus traffic through the above said road covering large number of areas is false and baseless and hence denied. Only six trips operated by Kerala State Road Transport Corporation (KSRTC) buses between Pathanamthitta and Kumili are allowed through the above said road running through deep forest for nearly 80 kilometers from Angamoozhy Check Post (Kochandi Check Post) to Vallakkadavu Check Post. Besides the above service, only 50 vehicles of private persons are permitted from Angamoozhy Check Post (Kochandi Check Post) into the forest road from 8.00 AM to 11.00 AM through online booking. From Vallakkadavu Check Post, only very few vehicles of private persons, who had taken the KFDC - Gavi Eco -Tourism one-day Package or KFDC Eco Tourism accommodation packages are allowed entry from the Vallakkadavu Check Post towards Gavi. Thus the traffic in 14 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 that area is kept at the minimum and fully restricted and regulated by both Periyar Tiger Reserve and Ranni Forest Division based on studies taking into account the ecosensitivity and fragileness of the entire forest stretch of 80 kilometers from Angamoozhy Check Post (Kochandi Check Post) to Vallakkadavu Check Post. Anyhow, the Ponnambalamedu area is fully secluded, protected and isolated from all the above said forest areas and Ponnambalamedu remains totally undisturbed and sheltered from all the small disturbances from these areas of human presence for the reasons stated above.” 4. W.P.(C) Nos.29698 of 2013 and 39527 of 2016: Heard the learned Senior counsel for the petitioners in W.P.(C)No.29698 of 2013 and also respondent Nos.4 to 8 in W.P.(C)No.39527 of 2016, and the learned Special Government Pleader (Forests), the learned Senior Government Pleader and the Standing Counsel for the Travancore Devaswom Board. 5. The right asserted by the petitioners in W.P.(C) No.29698 of 2013 and the right trying to be defended by respondent Nos.3 to 8 in W.P.(C)No.39527 of 2016 is that the members of Mala Araya community, a tribal sect, has the right to lit Makarajyothi at Ponnambalamedu on Makaravilakku day every year. Their contentions in support of that claim are that Sabarimala was once the abode of Hindu Mala Araya community and the poojas in the Sabarimala Sastha Temple were being performed by them, although the Devaswom Board eventually 15 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 took over, their right to lit Makarajyothi at Ponnambalamedu on Makaravilakku day was recognised by the Royal Family of Pandalam and Rulers of Travancore from time immemorial. The attempt of the authorities to dislodge their aforesaid right is violative of their right to worship and religious freedom as guaranteed under Articles 25 and 26 of the Constitution of India. It is their further contention that the right of the Hindu Mala Araya community to perform their religious rights in the Valliyamkavu Temple is not disturbed. Similarly, the traditional rights being enjoyed at various other temples are also not interdicted. In such circumstances, the Mala Araya community members' right to lit the lamp at Ponnambalamedu on Makaravilakku day cannot be interfered with and any interdiction will be violative of Article 14 of the Constitution of India. 6. The learned Senior Counsel for the petitioners in W.P. (C) No.29698 of 2013 would submit that the members of the Mala Araya community had enjoyed the said right for centuries together and that right was interfered with only when the Sabarigiri Project was commenced. Ext.P1 is the judgment of this Court in W.P.(C)No. 2361 of 2011. The fact that Makaravilakku at Ponnambalamedu is a man-made proposition and also the fact that it is part of rituals connected with the Sastha Temple, 16 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 Sabarimala, are recognised in the said decision. It is thus claimed that the rights of the Mala Araya community cannot be denied. 7. The aforesaid claim has been categorically denied by the official respondents. The Forest Department would contend that such a right was never enjoyed by the members of the Mala Araya community and that Ponnambalamedu, being a place within the Periyar Tiger Reserve, no outsider can be permitted entry. It is further contended that for the purpose of ensuring safety, security and a congenial atmosphere for the wildlife, especially tigers, members of the public cannot be allowed entry to Ponnambalamedu. The stand of the official respondents is that had there been such a right to the Mala Araya community, it should have been mentioned in the notification constituting the Goodrickal Forest Reserve in the year 1901. It is pointed out that it has been the practice of including the past history of outstanding rights in the working plan and in the notification. 8. Going by the contention of the petitioners in W.P. (C)No.29698 of 2013 and respondents 3 to 8 in W.P.(C)No.39527 of 2016, the rights claimed by the members of the Mala Araya community is a traditional right. The basis of that claim is that they have been enjoying such a right for centuries together and have become part of their community right. It will be noted that 17 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 such a claim has been put forward by contending that the members of Mala Araya community living in the area from time immemorial have acquired such a right. The said contentions imply that such a right was acquired by the members of the Mala Araya community by virtue of their living in that region. There is no pleading that the Mala Araya community obtained such a right by virtue of their community manifestation. Thus, not because that they are members of the Mala Araya community, but because they are living in that particular hillock, they claim to have acquired such a right. If so, there cannot be a claim that the Mala Araya community in general had obtained such a right by reason of them being the members of such a community. From the pleadings what is possible to infer is only that on account of their regional inhabitation the members of Mala Araya community had acquired such a right and the same is liable to be protected. When they so derive the right, it can only be a customary right and not a right conferred on a tribal sect by virtue of any statutory or constitutional provision. In that view of the matter, the claim that the members of the Mala Araya community on account of their community status have acquired the right to lit Makarajyothi at Ponnambalamedu is untenable. 9. If the right is one of custom or rather obtained by 18 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 traditional practices, that cannot be a religious right protectable under Articles 25 or 26 of the Constitution of India. For a right to be religious right, it should be the right connected to religious practices and rites. As against it, the petitioners' claim is that they, being the inhabitants of that terrain, had acquired such a right. Any dispute in respect of such a right can only be of a civil nature; sometimes, able to be agitated before a civil court. 10. The petitioners, in order to establish their right, rely on Exts.P1 to P8 produced in W.P.(C)No.29698 of 2013. Ext.P1 is a copy of the judgment in W.P.(C)No.2361 of 2011, wherein nothing about the right of the Mala Araya community to lit Makarajyothi has been mentioned or decided. Exts.P2 to P6 are various representations submitted before various authorities claiming the right in question. Ext.P7 is the bye-law of the administrative committee of a religious organisation. The recitals therein do not have any official recognition, especially, regarding the lighting of Makarajyothi at Ponnambalamedu. Similar is the relevance of Ext.P8. It is a Government order. What is dealt with in it is the right of firing kathinas (fire-petards) at Kalaketty, Inchippara, Thalappara and Nilakkal. Thus, none of the documents produced by the petitioners would help them to substantiate that members of Mala Araya community ever had enjoyed the right of lighting 19 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 Makarajyothi at Ponnambalamedu. In the said factual background, the law on the point and the feasibility of allowing entry to persons other than the officials to Ponnambalamedu may be considered. 11. This Court in **Suo motu v. Secretary, Travancore Devaswom Board, Thiruvananthapuram [2011 (3) KLT 587]** considered the feasibility of allowing entry of private vehicles along the public road from 4[th] Mile to Uppupara which is passing along the Periyar Tiger Reserve. It was held,- “8. Equally, the passage of large number of vehicles from 4[th] Mile to Uppupara, would undoubtedly create adverse ecological situations and pose environmental challenges referable to sound, emissions, lights etc., apart from nonbiodegradable waste and under-managed biodegradable left overs. Homo sapiens should remain a rare species in a sanctuary, a Tiger Reserve. Access itself is an affront to the sanctuary. This will adversely affect the flora and fauna within the Periyar Tiger Reserve. 9. The forests, including flora and fauna and its other wealth have to be zealously protected by the State. This is the command contained in Part IV of the Constitution. This is also the part of duties of citizens, treated as fundamental in terms of Article 51A of the Constitution. In the ultimate bargain for survival of the fittest, the constitutional vibrance resonating on a cohesive assimilation of the fundamental rights, fundamental duties and directive principles of State policy as enshrined in Parts III, IV and IVA of the constitution advises against any use of the beat and 20 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 patrolling routes in the Periyar Tiger Reserve for vehicular traffic as was done in last year in the route in question as noticed above. 10. We, therefore, find no ground to permit any movement of vehicles other than the departmental vehicles, that too, only for official purposes, from 4[th] mile to Uppupara. Hence, we direct the Union of India and the State of Kerala and all officers under them, in particular, the Forest Department and the Police Department to ensure that any entry of vehicles from 4[th] mile to Uppupara, other than official vehicles for official purposes, is stopped forthwith and this prohibition shall be enforced without fail. Having regard to the nature of the duties and responsibilities of the officers under the Wildlife (Protection) Act and the police authorities under the Police Act, Criminal Procedure Code and the enabling forest laws, we further notify that any official in service who is found to have aided, even passively, abetted or conspired to any violation of the stringency of this order would be personally liable, in accordance with law.” 12. A question as to whether the State authorities can be involved in the lighting of Makarajyothi at Ponnambalamedu on Makaravilakku day by expending secular funds, came up for consideration in **Sreeni Pattathanam and another v. State of Kerala and others [2011 (3) KLT 257]** . Incidentally, it was considered the extent to which people can be permitted inside Periyar Tiger Reserve. It was observed as follows: “11. Recording the aforesaid submissions of the Travancore Devaswom Board, we also notice that there is no material on record which would indicate as to whether any fund which 21 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 come from the secular funds of the State was ever utilized for the purpose of lighting of the deepam at Ponnambalamedu or for providing such a facility. The State Government stands to assert that no funds are being utilized from the secular funds of the State for that purpose. We do not have to go into the question as to whether the State Government should or could fund any such ritual because, as of now, the clear stand taken by the Travancore Devaswom Board is that for all times to come, the Travancore Devaswom Board will spend the funds required for having the deepam at Ponnambalamedu on Makara Sankranthi and all that has to be ensured is that the forest and police departments provide necessary support and access through the forest, which is part of Periyar Tiger reserve. Having regard to the submissions on behalf of the petitioners and in the light of the controversies raised, we are clear in our mind that to ensure that the secular funds of the State would not flow for such purpose, it would suffice that the submissions of the Travancore Devaswom Board that the expenditure in relation to the aforesaid activity will be made exclusively from its funds is recorded. We do so. 12. We notice the submission on behalf of the Forest Department that the activity of lighting to provide the deepam on Makara Sankranthi is a non-forest activity. Even before the area in question obtained the status of a wild life sanctuary, Tiger reserve, sometimes in 1899, this part of the land was declared as Periyar lake reserve and as part of forest that vested with the Government. With the progression of the statute law, the mere inclusions and modulations of the term 'non-forest activity', cannot be utilized to de-recognise the existing practice which has found recognition as part of faith and religious practice and which 22 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 has undoubtedly been happening without any permission from the forest authorities in the forest area. We do not find that the activity of the TDB authorities in coming over to Ponnambalamedu and providing the deepam on Makara Sankranthi would, in any way, intrude the interests of the forest, flora or the fauna. It would have no adverse impact on the ecosystem. Maintaining the balance of the needs of all concerned, including the preservation of the forests, we find no reason to inhibit such ritualistic activity, but only to state that the forest and the police authorities shall oversee such activity, if needed. It being a forest area, the forest officials and the police officials shall give sufficient aid and support to the TDB to carry out its activities as aforesaid.” 13. The need to protect and preserve Periyar Tiger Reserve has been repeatedly emphasised by this Court. In **Suo Motu v. State of Kerala and others [2022 (5) KHC 349]** this Court considered as to how far human activities can be permitted at Pamba Manappuram during non-festival season at Sabarimala Dharma Sastha Temple. After considering the importance of the Periyar Tiger Reserve and fragility of the ecosystem there and also the need to protect the environment in the area, this Court observed as follows in paragraph 34 of the said decision; “34. When Pamba Manappuram assumes importance from the point of crowd management during festival season and also when Sabarimala Temple opens for Masa Pooja (monthly pooja), no constructions can be permitted at Pamba Manappuram. Pamba and Sabarimala are declared ‘Special Security Zones’ by the Kerala Police. Pamba 23 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 Manappuram falls within the boundary of Periyar Tiger Reserve-West Division. The land at Pamba Manappuram is leased out to the Travancore Devaswom Board, specifically for providing pilgrim facilities, which cannot be permitted to be used for putting up structures like VIP tents, ‘Katha pandal’ or other temporary structures for conducting programmes, conventions, etc., especially when, during the last few seasons, flash floods occurred in Pamba, which inundated Pamba Manappuram unexpectedly as stated in the report of the learned Special Commissioner, Sabarimala. xx xx xx” ## 14. In **Suo Motu v. Union of India [2022 (7) KHC** **624]** , this Court observed that since the helipad at Nilakkal Base Camp is only a temporary helipad, regular helicopter operations cannot be permitted from that helipad, either during MandalaMakaravilakku festival seasons or Maasa poojas, especially when that helipad is at an aerial distance of only 800 meters from the boundary of ‘Periyar Tiger Reserve’, which is a protected area for tigers and other wildlife including elephants, gaurs, leopards, sloth bears, etc. The operations in that helipad, other than emergency operations and operations under Section 83(1) of the Kerala Police Act, have to be restricted to the maximum extent possible. 15. From the above, it is quite explicit that the Periyar Tiger Reserve or its buffer zone cannot be opened up to any nonforest activities except as permitted. Private individuals cannot be allowed any unauthorised entry to that area. Any intervention in 24 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 the ecosystem there will eventually result in environmental imbalance and adversely affect the tiger population inside. When the petitioners could not substantiate that the members of Mala Araya community ever had enjoyed the right to lit Makarajyothi at Ponnambalamedu, grant of permission to them to reach Ponnambalamedu will be an intrusion to the Periyar Tiger Reserve. The relief of declaration to the effect that members of the Hindu Mala Araya community have the right to lit Makarajyothi at Ponnambalamedu on Makaravilakku day every year, in the above circumstances, is absolutely untenable. 16. Ext.P10 in W.P.(C)No.39527 of 2016 was issued by the Kerala State Commission for Scheduled Castes and Scheduled Tribes proposing to hold enquiry on the petition submitted before it claiming the right of the tribal clan in Sabarimala to lit Makarajyothi at Ponnambalamedu. The relief claimed in the above writ petition is to prohibit further proceedings pursuant to Ext.P10 and quash the proceedings itself. The question that requires consideration in that regard is whether the Commission has the power and jurisdiction to entertain such a complaint and hold an enquiry. 17. Ext.P1 in W.P.(C)No.39527 of 2016 is a representation submitted before the Commission by the 3[rd] respondent in 25 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 relation to such a claim. Ext.P2 is a similar representation submitted before the Commission by the 4[th] respondent on behalf of Mala Araya Samyukta Samithi. A similar representation was submitted before the Chief Minister, a copy of which is marked as Ext.P3. Another identical representation submitted before the Commission is Ext.P4. While such representations/petitions were pending consideration, the Commission has issued Ext.P10 notice. 18. The submissions of the learned Senior Counsel in the above regard are that the State Commission for Scheduled Castes and Scheduled Tribes is bestowed with the powers to enquire into specific complaints concerning the deprivation of rights and safeguards of the scheduled tribes and therefore there was nothing wrong in the Commission proceeding with the enquiry on the said petitions/representations. 19. Per contra, the learned Special Government Pleader (Forests) would submit that none of the said petitions was related to deprivation of rights or safeguards of Scheduled Tribes; whereas the claim was to establish the traditional rights of a tribal clan inhabiting in a particular geographical area and that cannot be a right available on account of their community. Therefore, it is contended that Ext.P10 was issued by the Commission without any authority. 26 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 20. The National Commission for Scheduled Castes is constituted under Article 338 of the Constitution of India. The National Commission for Scheduled Tribes is constituted under Article 338A of the Constitution of India. The State Commission for Scheduled Castes and Scheduled Tribes is constituted in Kerala by virtue of the provisions of the Kerala State Commission for the Scheduled Castes and Scheduled Tribes Act, 2007 (State Commission Act). The functions and powers of the Commission are enumerated in Section 9. The said powers are almost the same as enumerated in Clause (5) of Article 338 as well as Article 338A of the Constitution of India. Clause (b) in Section 9 of the State Commission Act alone could be invoked in the matter in question, which reads, “9. Functions of the Commission.- xx xx xx (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and the Scheduled Tribes of Kerala and to take up such matters with the appropriate authorities.” 21. The said provision has come up for consideration before several High Courts and what is the extent of powers exercisable by the Commission under the said clause was considered. In **Indian Oil Corporation Ltd. v. National Commissioner for Scheduled Tribes and another [2018 SCC OnLine Del.6619]** , the High Court of Delhi held that the ambit of 27 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 the complaint on which the Commission can have an enquiry shall relate to deprivation of the rights and safeguards of the Scheduled Tribes. It was explained that the allegation shall be about discrimination or hostile treatment on account of being a member of a Scheduled Tribe. 22. The Calcutta High Court in **State of West Bengal, Service through the Department of Health and Family Welfare and others v. National Commission for Scheduled Castes, through the Under Secretary, Government of India and others [2023 SCC OnLine 1190]** took a similar view and held that complaints relating to discrimination or deprivation of rights of the complaint being a member of the Schedule Caste shall alone be enquired to by the Commission. 23. The Apex Court in **All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India [(1996) 6 SCC 606]** considered to what extent the National Commission for Scheduled Castes and Scheduled Tribes can exercise the powers of a civil court. It was held that in clause (8) of Article 338 of the Constitution of India, the words used are “the Commission shall have all the powers of the Civil Court trying a suit”. But the words “all the powers of a Civil Court” have to be exercised “while investigating any matter referred to in sub-clause 28 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5 of Article 338 of the Constitution of India. All the procedural powers of a civil court are given to the Commission to investigate and inquire into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inherit in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution. The same is the law applicable to the State Commission. It follows that unless the complaint before it is one relating to the deprivation of the rights and safeguards of the Scheduled Tribes, the Commission cannot undertake an enquiry or undertake as could be done by a civil court. 24. The right claimed by the petitioners in Exts.P2 to P5 in W.P.(C)No.39527 of 2016, which is claimed by the petitioners in W.P.(C)No.29698 of 2013 also, is a traditional right in the nature of a custom and any dispute in that respect can be agitated only before a civil court. In that view of the matter, the Commission could not have entertained the said petition/representation and initiated the enquiry as proposed in Ext.P10. That apart, the power invested in the Commission by virtue of Section 9(b) of the State Commission Act is to enquire into specific complaints 29 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 concerning the deprivation of rights and safeguards of the Scheduled Tribes and not the allegation regarding deprivation of a right obtained otherwise. Here, the claim is that the tribal clan belonging to the Hindu Mala Araya community located in a particular area had obtained the right to lit Makarajyothi at Ponnambalamedu. That cannot be a subject matter of enquiry under Section 9(b) of the State Commission Act. 25. In the above circumstances, we are of the view that Ext.P10 notice in W.P.(C)No.39527 of 2016 and the proceedings in relation to the said notice pending before the 1[st] respondent-State Commission for Scheduled Castes and Scheduled Tribes are liable to be quashed. Accordingly, W.P.(C)No.29698 of 2013 is dismissed and W.P. (C)No.39527 of 2016 is allowed. Ext.P10 in W.P.(C)No.39527 of 2016 and the proceedings in relation to that notice are quashed. sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 30 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 ## **APPENDIX OF WP(C) 29698/2013** **PETITIONER EXHIBITS** **EXHIBIT-P1 : TRUE COPY OF THE JUDGMENT DATED 25.4.2011 IN WP(C) NO.2361 OF 2011.** **EXHIBIT-P2 : TRUE COPY OF THE REPRESENTATION DATED 19.4.1953 SUBMITTED BEFORE THE DEVASWOM ASSISTANT COMMISSIONER.** **EXHIBIT-P3 : TRUE COPY OF THE REPRESENTATION DATED 02.11.2011 SUBMITTED BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD. EXHIBIT-P4 : TRUE COPY OF THE REPRESENTATION DATED 29.11.2012 SUBMITTED BEFORE THE MINISTER FOR DEVASWOM. EXHIBIT-P5 : TRUE COPY OF THE REPRESENTATION DATED 29.11.2012 SUBMITTED BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD.** - **EXHIBIT-P6 : TRUE COPY OF THE REPRESENTATION DATED 9.1.2012 SUBMITTED BEFORE THE SC/ST COMMISSION.** **EXHIBIT-P7 : TRUE COPY OF THE COMMUNICATION DURING THE TIME OF MAHARAJA. EXHIBIT-P8 : TRUE COPY OF THE COMMUNICATION DATED 26.12.1947 FROM THE SECRETARY TO GOVERNMENT TO THE DEVASOM COMMISSIONER.** 31 W.P.(C) Nos.29698 of 2013 & 39527 of 2016 ## **APPENDIX OF WP(C) 39527/2016** ## **PETITIONER EXHIBITS** |**EXT.P1**|**TRUE COPY OF THE PETITION DATED**| |---|---| ||**22/09/2016**| |**EXT P2**|**TRUE COPY OF THE PETITION DATED**| ||**25/09/2016**| |**EXT P3**|**TRUE COPY OF THE PETITION FILED BY THE**| ||**5TH RESPONDENT**| |**EXT P4**|**TRUE COPY OF THE PETITION DATED**| ||**10/10/2016 FILED BY THE RESPONDENTS 6 TO**| ||**8**| |**EXT P5**|**TRUE COPY OF THE GAZETTE NOTIFICATION**| ||**NO. 40 DATED 01/10/1991**| |**EXT P6**|**TRUE COPY OF THE G.O(P) 75/07/F&WLD**| ||**DATED 31/12/2007**| |**EXT P7**|**TRUE COPY OF THE G.O(P)NO.18/11/F&WLD**| ||**DATED 22/03/2011**| |**EXT P8**|**TRUE COPY OF THE ORDER DATED 13/06/2012**| ||**IN I.A 7562/2012 IN O.P NO. 15667/1992**| |**EXT P9**|**TRUE COPY OF THE SCEINTIFIC REPORT DATED**| ||**25/11/2016 OF SRI. RAMESH BABU,**| ||**ECOLOGIST, TIGER CELL, PERIYAR TIGER**| ||**CONSERVATION FOUNDATION, PERIYAR TIGER**| ||**RESERVE, BASED ON THE DTA ON THE BASIS**| ||**OF CAMERA TRAP UPTO 17/11/2O16**| |**EXT P10**|**TRUE COPY OF THE NOTICE DATED 13/10/2016**|