W.P.(C).No.26372/2012 (Joseph Abraham et al. v. State of Kerala and others)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` TUESDAY,THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944 ``` ## **`WP(C) NO. 26372 OF 2012`** ## **`PETITIONERS:`** - `1 JOSEPH ABRAHAM AGED 56 YEARS, MANAGING PARTNER, ZEENATH ESTATE, (PREVIOUSLYU KNOWN AS RAVIVARMA ESTATE) NELLIYAMPATHY.P.O. PALAKKAD DISTRICT.` - `2 ABU. K. ABRAHAM S/O. ABRAHAM, KANNENKERIL HOUSE, KUTTOOR VILLAGE, KUTTOOR POST, THIRUVALLA, PATHANAMTHITTA DISTRICT-PIN-689160.` - `3 RIYA PRINCE W/O. PRINCE ABRAHAM, VALLAMKULAM.P.O., ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.` - `4 P.K. MOHAMMED FAROOK S/O. BAPPU, KAYANAYIL HOUSE, PUNNUAYOORKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.` - `5 N.K. SUKUMARAN S/O. KESAVAN, MAPRANAM NEDIYIRIPPIL HOUSE, PURATHUSERRY VILLAGE, MUKUMDAPURAM TALUK, THRISSUR DISTRICT.` - `6 AYYAPPAN RESIDING AT ZEENATH ESTATE, PADDY, NELLIYAMPATHI, NENMARA PALAKKAD.` - `7 PRIYA RESIDING AT ZEENATH ESTATE, PADDY, NELLIYAMPATHI NENMARA PALAKKAD.` ``` BY ADV SRI.N.JAMES KOSHY ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY, FOREST AND WILDLIFE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-696001.` WP(C).No.26372/2012 **2** - `2 THE DIVISIONAL FOREST OFFICER NENMARA, P.O., NENMARA-678508, PALAKKAD DISTRICT.` - `3 THE FOREST RANGE OFFICER NELLIAMPATHY RANGE, P.O., NENMARA-678508, PALAKKAD DISTRICT.` - `4 THE DISTRICT COLLECTOR PALAKKAD, P.O., PALAKKAD-678001.` - `5 NELLIYAMPATHI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NELLIAMPATHY, NENMARA-678508, PALAKKAD DISTRICT. BY ADVS.SRI.T.P.SAJAN, SPL.GP(FOREST) SRI.ASP.KURUP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.26372/2012 **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.26372 of 2012** **---------------------------------------------Dated this the 20[th] day of December, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 4 to remove the gate constructed on "14[th] Mile" to Zeenath estate road at it entrance from Nenmara-Nelliyampathi road and to allow the petitioners and their workers, general public and Adivasi people to use the road as a public way, as they have used it till 17.10.2012. - ii. Direct the respondents to maintain status quo with respect to the use of the road as on the date of judgment of the Hon'ble High Court in W.P.(C) No.4613/2012 i.e. 29.03.2012. iii. To initiate contempt of court proceedings and punish respondents 2 and 3 under the Contempt of Court Act for wilful disobedience of the Hon'ble High Court judgment in W.P.(C) No.4613/2012 and the order passed by the Principal Subordinate Judge, Palakkad in I.A.No.1250/2012 in O.S.No.282/2012. WP(C).No.26372/2012 **4** - iv. To declare that the obstruction on the road made by respondents 2 and 3 on 18.10.2012 is unlawful, illegal and liable to be removed. - v. Direct the respondents 1 to 3 to pay adequate compensation to the petitioners for the damages suffered by them due to the illegal closing of the road to the Estate. - vi. Grant such other reliefs as are deem just and necessary in the facts and circumstances of the case. ## (SIC) ## 2. When this writ petition came up for consideration on 18.12.2012, this Court passed the following order. - “8. Taking note of the facts noticed above, I feel that the suggestion made by the Advocate Commissioner is the most practical one and will not be of any prejudice to the respondents. In such circumstances, as an interim measure, I direct respondents 2 and 3 to give a duplicate key of the lock installed by them at the 14th mile, to the first petitioner, enabling the petitioners to open the same as and when necessary for vehicular traffic to their Estate and also for the use of their workers and Adivasi people who stay in the Estate. 9. It is made clear that it shall be the responsibility of the petitioners to keep the chain locked after use.” WP(C).No.26372/2012 **5** 3. The above order was taken up in appeal and as per the judgment dated 16.01.2013 in Writ Appeal No.81/2013, a Division Bench of this Court was pleased to modify the order. It will be better to extract the judgment dated 16.01.2013 in Writ Appeal No.81/2013: “Heard learned Advocate General as well as learned counsel for respondents. 2. Government is before us aggrieved by interim order of the learned Single Judge dated 18.12.2012. The claim of the respondents-petitioners was, they being the owners of Zeenath estate and other estates, having more than 25 workers in the estate who have to pass through the chain gate put up at 14[th] mile by appellants authorities which practically makes it impossible for the vehicles belonging to the owners and the workers to pass through the chain gate. Therefore, they sought for an interim order. 3. The learned Judge after appointing an Advocate Commissioner for inspection of the entire area and the chain gate, opined giving a duplicate key of the lock would serve the purpose so that the writ petitioners need not approach the authorities every time they need to enter the estate through the chain gate now installed. The State has categorically denied the claim of the writ petitioners and according to them, it was in WP(C).No.26372/2012 **6** existence earlier as well. According to the State, in the estate of the writ petitioners as there is a Resort and many visitors do visit this place, it was necessary for them to reconstruct or re-instal the chain gate which alleged to have been removed by the petitioners. The fact remains, appellant authorities has the control over the safety and maintenance of the forest in question including the present area. It is also not in dispute that the workers in the estate or the persons who visit the estate of the writ petitioners to reach the estate, have to cross 1.7 K.M. out of which 1 K.M. is the forest property and 0.7 K.M. belongs to the estate. The fact remains, from the main road if one has to reach the chain gate installed at 14 th mile, the above distance has to be covered. 4. The claim of the writ petitioners that they have 25 workers in the estate is totally denied by the State. The Advocate Commissioner did not say anything about the number of workers. The fact remains, whether they are employees or the employers of the estate, they have to pass through 14th mile chain gate. When this particular chain gate is under the supervision and control of the forest department, if someone else is allowed to have free access or handling of the key, it may lead to some difficulties or problems including forest offences or untoward incidents. In that view of the matter, there has to be a check on who passes WP(C).No.26372/2012 **7** through the chain gate through vehicles. But, at the same time, there shall not be any problem to the people who walk to the estate. This is also clear by the report of the Advocate Commissioner. Only when the vehicles have to pass through, which cannot go through the chain gate, question of opening the lock with a key would arise. Whenever such occasion arises, it is open to the estate owners or the persons authorised by them to seek permission. Seeking permission also would be a check to ensure resort activities are conducted without violating any procedure. In that view of the matter, when the appellants are ready to depute a forest watcher round the clock at the 14th mile, there is no need for handing over a duplicate key to the owners of the estate/writ petitioners as indicated in the interim order by the learned Single Judge. With these observations, we dispose of this appeal directing appellant authorities to immediately post a forest watcher with prior intimation to all concerned and also provide accessibility to that person either through the land phone or mobile phone. The State also shall take into account that there cannot be proper vigil, if only one person is posted. It is also open to the parties to seek early disposal of the writ petition before the learned Single Judge. The modification of the interim order is subject to result of the main writ petition.” WP(C).No.26372/2012 **8** 4. Today, when the matter came up for consideration, the counsel for the petitioner submitted that he will be satisfied if the order passed by the Division bench is recorded and the writ petition is closed. Therefore this writ petition is closed recording the judgment dated 16.01.2013 in Writ Appeal No.81/2013. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV