Disposed

Angels Nair v. the Principal Secretary to Department of Forest and Wild Life

Kerala HC17 Jun 2019WP(C)/1645/2019

Case brief

AI extract

What is this about?

A writ petitioner challenged permission granted for film shooting involving gravel deposition in a reserve forest. The court acknowledged environmental damage but found the shooting legal under existing orders. The court directed the Central Government to initiate enquiries, take punitive action under relevant Acts, and ensure restoration of the damaged ecosystem within four months.

What did the court decide?

The Central Government is directed to initiate enquiries, take action against erring officials and the movie company, and ensure the immediate repair of damaged forest ecosystem within four months.

Angels Nair Vs the Principal Secretary to… — Environment and Pollution | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941

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WP(C).No.1645 of 2019

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PETITIONER/S:

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ANGELS NAIR, AGED 52 YEARS, GENERAL SECRETARY, ANIMAL LEGAL FORCE INTEGRATION, KAPPILLIL HOUSE, PULLUVAZHY P.O., PERUMBAVOOR, ERNAKULAM DIST. PIN-683541.

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BY ANGELS NAIR(PARTY IN PERSON)

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RESPONDENT/S:

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1 THE PRINCIPAL SECRETARY TO DEPARTMENT OF FOREST & WILD LIFE, GOVERNMENT OF KERALA, ROOM NO.374, 1ST FLOOR, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 PRINCIPAL CHIEF CONSERVATOR OF FORESTS & HEAD OF FOREST FORCE, FOREST HEADQUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695014.

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3 ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS (VIGILANCE), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.

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4 MANAGING DIRECTOR, MOVIES MILL PRODUCTIONS, 14/1745, GANAPATHI KOVIL RAOD, VAZHUTHAKKAD, TAIKKAD P.O., THIRUVANANTHAPURAM-680104.

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M. RAJEEVAN, DFO, FOREST RANGE OFFICE, VIDYANAGAR, KASARAGOD-671123.

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6 PRAVEEN S., JT.PRINCIPAL SECRETARY, ROOM NO.374,

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1ST FLOOR, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAURAM-695001.

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W.P.(C) No.1645 of 2019

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7 CENTRAL BOARD OF FILM CERTIFICATION, 1ST FLOOR, CHITRANJALI STUDIO COMPLEX, TIRUVALLUM, THIRUVANANTHAPURAM-695027.

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8 ADDITIONAL PRINCIPAL CHIEF FOREST CONSERVATOR (REGIONAL NORTH), ARAKKINAR P.O., MATHOTTAM, KOZHIKODE-673028.

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9 RANGE FOREST OFFICER, RANGE FOREST OFFICE, (NEAR) RAILWAY STATION, KASARAGOD. P.O.,-671121. 10 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE C.G.O COMPLEX, LODHI ROAD, PARYAVARAN BHAWAN, NEW DELHI-110003. BY ADVS. R1 TO R3, R8 & R9 - SRI.SANDESH RAJA.K., SPECIAL GOVERNMENT PLEADER (FOREST) R4 - SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.M.F.MOHAMMOD SIYAD SRI.THOMAS T.VARGHESE R5 - SRI.M.RAJENDRAN NAIR SMT.M.SANTHY R7 & R10 - SRI.VISHNU J., CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.1645 of 2019

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JUDGMENT

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This writ petition is filed by the petitioner,

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appearing in person, seeking direction to respondents 1 to 3 to take strict and stringent measures to curb the

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illegal activities of respondents 4 to 6 and for directing the 2^nd and 3^rd respondents, i.e., the Principal Chief Conservator of Forests and Additional

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Principal Chief Conservator of Forests (Vigilance) to conduct a thorough investigation into the activities carried out by respondents 4 to 6, i.e., the Managing Director, Movie Mill Productions, the Divisional Forest Officer, Kasaragod and the Joint Principal Secretary, Thiruvananthapuram, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows:

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Petitioner is said to be an animal rights

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activist and is aggrieved by the permission granted to deposit gravel in the Parthakochi, Karudukka Reserve

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Forest under Kasaragod Range, for the purpose of shooting a movie viz., 'Unda', and inaction of the

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Government to take disciplinary and other punitive measures against the irresponsible and erring officials

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who granted permission to do an illegal act of depositing gravel in the reserve forest. Case of the

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W.P.(C) No.1645 of 2019

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petitioner is that, the act of the officials is in

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gross violation of the Forest laws and guidelines, causing serious and irreparable threat to the forest and wildlife. A large number of species including millions of micro flora and fauna perished consequent to the dumping of gravel, damaging the ecosystem.

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According to the petitioner, the 4^th

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respondent film company obtained permission from responsible forest officials against the existing

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Forest laws and conditions for film shooting. Even though petitioner sought immediate intervention of

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superior forest authorities to stop the atrocities in the forest, no action was taken against the erring officials who were guilty of violating forest, wildlife

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and conservation laws, causing damages to the environment and bio-diversity existing in the said area. Even though the 8^th respondent, Additional

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Principal Chief Forest Conservator, Kozhikode has

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recommended for enquiry and action against the

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officials who have granted permission, the Government

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has not taken any action against the erring officials.

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In fact, the original order granting permission on

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03.10.2018 permitting deposit of gravel had to be

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cancelled after the gravel had already been deposited.

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W.P.(C) No.1645 of 2019 5

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Therefore, the cancellation did not serve any purpose.

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But, surprisingly, the Principal Secretary had overruled the recommendation of the Additional Chief Conservator of Forests, Northern Region, i.e., the 8^th respondent not to grant permission to continue shooting in the Forest Range in question. These are the basic background facts projected by the petitioner to secure the reliefs specified above.

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Various documents are also produced by the

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petitioner in respect of the damages that have suffered to the forest, including several photographs as Ext.P8 series, from where, it is clear that, fresh gravel is deposited in forest area in order to develop a road, probably for the purpose of facilitating transport of equipments and stars for the film shooting.

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The 5^th respondent i.e., the Divisional Forest Officer, who was made a party in person, has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. According to the 5^th respondent, when the application was submitted by the film producing company seeking permission for a commercial film shooting in the Forest Range, it was taken into account on the basis of G.O. (MS) No.37/2013/F&WLD dated 30.03.2013, delegating the

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W.P.(C) No.1645 of 2019 6

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powers to Divisional Forest Officers to grant

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permission for film shooting in the areas under their jurisdiction, after levying prescribed fees and security deposit. In accordance with the Government Order, the DFO has granted permission for the shooting, on condition that an amount of Rs.18,115/- is paid towards fees per day, and Rs.18,115/- towards security deposit. It was also specifically mentioned in the permission order that the applicant and the team has to strictly follow the existing rules and regulations, and has to execute an agreement with the DFO, before the commencement of shooting.

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application for film shooting is coming under the Right to Service Act, and hence the DFO had to take a decision after taking into account the location of the proposed shooting, and permission was granted on understanding that it is a portion of a rocky patch admeasuring 1.5 hectares inside an acacia and cashew

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plantations of the Forest Range in question. It is also submitted that, Ext.P1 submitted by the petitioner

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is the guidelines issued by the Ministry of Environment, Forests & Climate Change for the diversion of forest land for non-forestry purposes under the

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W.P.(C) No.1645 of 2019 7

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Forest (Conservation) Act, 1980 (for brevity, 'the Act,

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1980'), for the purpose of certain critical development

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and security related infrastructure through the

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diversion of not more than 1 hectare of land for the purposes mentioned under the provisions of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and the same

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is in no way related to the permission granted by the DFO in question.

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That apart, it is further pointed out, the

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permission was granted in accordance with the existing

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laws and consequent to the permission, the 4^th respondent, i.e., the movie company has executed an agreement with the DFO. Apart from the conditions contained under the agreement, strict instructions were given to maintain the area as such, and not to dump any waste in the area. It is also submitted that, as

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alleged by the petitioner, huge quantity of soil was not dumped in the site in question and permission for carrying gravel was issued on condition that it shall be removed after completion of shooting, and according to the 5^th respondent, the 4^th respondent has complied with the condition. The 4^th respondent has also used the soil for making walls on the temporary huts

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constructed for the purpose of shooting. The soil was

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only put on the wall of the hut and did not spread on the ground. That apart, it is stated that, a coup road was passing along the shooting site which was annually maintained by the Forest Department for facilitating

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conveyance for the purpose of forest protection activities. It was also proposed to carry out the maintenance works of the coup road by the Department during 2018-19 also. Other contentions are raised to the effect that no manner of serious prejudice is caused to the forest bio-diversity and the environment merely because the permission was granted.

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The 4^th respondent has also filed a detailed counter affidavit, refuting the allegations and also submitting that they have carried out the film shooting in the forest area in question after securing necessary permission from the DFO, and therefore, there was no shortcomings or illegality on the part of the 4^th respondent in using the forest area for film shooting. It is also stated that, 50 truckloads of gravel, as alleged, was never taken into the reserved area for making the road, and the allegation that a road at a length of 500 metres is made, is not correct. However, 20 truckloads of soil was brought to the forest area

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W.P.(C) No.1645 of 2019 9

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and a substantial portion was utilized for the

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maintenance of the existing coup road. Therefore, merely because some soil was deposited in the coup

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road, that has not caused any manner of damages to the forest area and the allegations made by the petitioner in the writ petition contrary to the same, is baseless and without any truth in the same.

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I have heard the petitioner appearing in person, learned Special Government Pleader appearing for the Forest, and the learned counsel appearing for respondents 4 and 5 and 7 and 10 respectively. Perused the pleadings and the documents on record.

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The grievance of the petitioner, as is

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discernible from the pleadings is that, permission was granted for film shooting violating the provisions of the Forest (Conservation) Act, 1980, Wildlife (Protection) Act and other environmental laws,

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especially due to the fact that the movie company was permitted to deposit gravel from outside and form a

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pucca road so as to facilitate the conveyance. Apart

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from the same, relying upon Ext.P8 series of photographs, it is submitted by the petitioner that serious and irreparable damages are caused in the forest area due to the dumping of gravel and deposit of

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waste. It is also argued that, in spite of the

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representations made by the petitioner to various forest authorities and the Central Government

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officials, no action was initiated against the 4^th respondent movie company and the officials, for granting permission, violating the Forest

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(Conservation) Act.

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On the other hand, the 5^th respondent has submitted that, no manner of serious environmental issues have occurred consequent to the deposit of soil and the soil was deposited on a coup road, which was being maintained by the Forest Department every year, in order to facilitate their conveyance through the

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forest area. Therefore, the deposit of gravel in that area has only helped the forest authorities and it has saved the exchequer from spending money for the maintenance of the coup road. According to the 5^th respondent, i.e., the DFO, no serious issues have occurred in the forest area, as is alleged by the petitioner.

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Respondents 7 and 10, i.e., the Central Board of Film Certification and the Union of India have filed separate statements, refuting the allegations and also stating that even though the Central Government has

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W.P.(C) No.1645 of 2019

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sought for necessary report from the State Government as early as on 05.02.2019, no report was forwarded by the State Government officials, facilitating the

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Central Government to take action in accordance with

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Sections 3A and 3B of the Act, 1980. It is also pointed out that, even if any action is launched against the erring officials as well as the movie

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company, the maximum punishment that can be imposed under Sections 3A and 3B, is only simple imprisonment for a period of fifteen days, and that alone will not save the situation in order to abate damages if any occurred consequent to the dumping of gravel and other waste by the movie company. It is also submitted that, if necessary reports are received from the State Government, action will be initiated against the responsible persons in accordance with law.

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On the other hand, learned Special Government Pleader appearing for the State of Kerala submitted that, in accordance with the provisions of Sections 3A and 3B of Act, 1980, it is the duty of the Central Government to take action against the erring officials or any other persons who have conducted themselves any non-forest activities in the reserve forest area. It is also pointed out that, allegations are made by the

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W.P.(C) No.1645 of 2019

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petitioner against the State Forest officials and

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seeking a report from the very same forest officials by the Central Government will not improve the situation

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in any manner and the Central Government is vested with powers to take appropriate action in accordance with Sections 3A and 3B of Act, 1980, even without securing

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the report. Therefore, the duty of the Central

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Government is not discharged in accordance with law and the State Government has no manner of power under the Forest (Conservation) Act, 1980, to proceed against the officials.

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Having evaluated the situation and verifying the pleadings and the documents of the respective parties, I am of the considered opinion that, from Ext.P8 series of photographs, which are not under

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dispute, it is clear that serious damages have caused to the reserve forest consequent to the dumping of

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gravel in the forest area and making the road and the area more marshy which has interfered substantially with the natural environment and the bio-diversity in the area. Therefore, it cannot be said that the allegations made by the petitioner against the forest officials and the movie company are not true or correct. Anyhow, the entire issues can be unravelled

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W.P.(C) No.1645 of 2019

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by making a deep-seated enquiry by the Government of India in that matter.

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petitioner that the certification of the movie by the Censor Board shall not be permitted, cannot be

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sustained in view of the fact that permission was granted by the 5^th respondent for movie shooting by charging fees, on the basis of the Government Order of

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the year 2013. It is also clear that permission for transporting gravel was granted, and it was accordingly that the movie company has deposited soil on the coup road. Therefore, the movie shooting as such cannot be said to be illegal, since permission was granted by the 5^th respondent in accordance with the powers conferred on him as per the Government Order specified above, though the permission was misused, which is liable to be corrected. So also, pursuant to the interim order

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granted by this Court, Censor procedures were completed, and the movie was released also.

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But, at the same time, merely because

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permission was granted, the forest officials are not at liberty to overlook the duties and responsibilities, ensuring that the permission is not misused, and no

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manner of damages and adverse consequences are suffered

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W.P.(C) No.1645 of 2019

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to the bio-diversity, flora and fauna and the natural

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and serene atmosphere of the area. I do not think, the forest officials, after granting permission, were careful enough to undertake frequent inspections in the area for eliminating unnecessary interferences so as to materially affect the ecosystem.

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Above all these aspects, as per Sec.3A of the Forest (Conservation) Act, 1980, whoever contravenes or abets the contravention of any of the provisions of Sec.2 shall be punishable with simple imprisonment for a period which may extend to fifteen days. Section 3B deals with offences by authorities and Government departments, and where any offence under the Act, 1980 has been committed by any department of Government, the head of the Department, or by any authority, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

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Therefore, in my considered opinion, there is

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every duty cast upon the Central Government to initiate action against the erring officials and the movie

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W.P.(C) No.1645 of 2019

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company for non-forest activities undertaken by them in the reserve forest area by depositing gravel and damaging the environment, bio-diversity and the flora and fauna, after making due enquiries. It is also made clear, if the damages caused due to the deposit of the gravel are not repaired, every step shall be taken by

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the Central Government to ensure that the same is

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removed at the earliest and whatever cost suffered on account of the same shall be realized from the 4^th respondent movie company. I also make it clear that, the State Government shall provide all assistance to the officials of the Central Government to carry out necessary enquiry, and take action in accordance with law and also to rectify the damages without affecting the eco-system and the natural attire of the forest. I further make it clear that the enquiry, as directed above, and the repair measures shall be completed at the earliest, and at any rate, within four months from the date of receipt of a copy of this judgment.

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Pending interlocutory applications, if any, will stand closed.

Sd/-

SHAJI P.CHALY

JUDGE

St/20.06.2019

W.P.(C) No.1645 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE GUIDELINES FOR DIVERSION OF FOREST LAND FOR NO-PROFIT PURPOSE UNDER FOREST CONSERVATION ACT 1980 DATED 13 FEBRUARY 2014.
EXHIBIT P2	TRUE COPY OF THE LICENSE ISSUED BY THE 5TH RESPONDENT DATED 27/09/2018.
EXHIBIT P3	TRUE COPY OF THE AGREEMENT ENTERED BETWEEN THE RESPONDENT 4 AND RESPONDENT 5 ON 27/09/2018.
EXHIBIT P4	TRUE COPY OF THE PERMISSION LETTER ISSUED BY THE 5TH RESPONDENT TO ERECT STRUCTURES IN THE FOREST LAND DATED 28/09/2018.
EXHIBIT P5	TRUE COPY OF THE LICENSE GRANTED BY 5TH RESPONDENT IN FAVOUR OF 4TH RESPONDENT FOR FILLING THE FOREIGN RED SOIL IN THE FOREST LAND DATED 03/10/2018.
EXHIBIT P6	TRUE COPY OF THE LETTER ISSUED BY THE RANGE FOREST OFFICER, KASARAGOD TO DIVISION FOREST OFFICER, KASARAGOD DATED 01/10/2018.
EXHIBIT P7	TRUE COPY OF THE LETTER ISSUED BY THE 9TH RESPONDENT TO THE DFO, KSARAGOD DATED 05/10/2018.
EXHIBIT P8	TRUE COPY OF THE PHOTOGRAPHS TAKEN.
EXHIBIT P9	TRUE COPY OF THE REVOKING THE ORDER OF THE 5TH RESPONDENT DATED 06/10/2018.
EXHIBIT P10	TRUE COPY OF THE LETTER SEND BY THE 8TH RESPONDENT TO THE CHIEF FOREST CONSERVATOR, KANNUR DATED 10/10/2018.
EXHIBIT P11	TRUE COPY OF THE COMMUNICATION ISSUED BY THE 8TH RESPONDENT TO 1ST RESPONDENT DATED 10/10/2018.
EXHIBIT P12	TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT DATED 25/10/2018.
EXHIBIT P13	TRUE COPY OF THE COMPLIANT FILED BY THE PETITIONER'S ORGANIZATION BEFORE THE 3RD RESPONDENT DATED 15/11/2018.

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W.P.(C) No.1645 of 2019

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EXHIBIT P14	TRUE COPY OF THE COMPLAINT BY THE PETITIONER'S ORGANIZATION DATED 29/11/2018.
EXHIBIT P15	TRUE COPY OF THE LICENSE DETAILS OF ALL THE ORDERS GRANTED FOR PERMIT SHOOTING.
EXHIBIT P16	TRUE COPY OF THE MAHASSAR PREPARED BY SECTION OFFICER, GOPALAN M STATES BEFORE RESPONDENT 9, DATED 8 DECEMBER 2018.
EXHIBIT P17	TRUE COPY OF THE MAHASAR BY 9TH RESPONDENT PRODUCED BEFORE 5TH RESPONDENT DATED 11/12/2018.
EXHIBIT P18	TRUE COPY OF THE STATEMENT FILED BY SECTION OFFICER MR.M.GOPALAN M DATED 15/12/2018.
EXHIBIT P18(A)	PHOTOGRAPHS OF THE DEBRIS AND PLASTIC.
EXHIBIT P19	TRUE COPY OF THE MEDIA REPORT.
EXHIBIT P20	TRUE COPY OF THE REPORT OF SECTION OFFICER FOREST DIVISION, KASARAGOD DATED NIL.
EXHIBIT P21	TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26 DECEMBER 2018.
EXHIBIT P22	TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE RESPONDENT 10.
EXHIBIT P23	TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE RESPONDENT 7.
EXHIBIT P24	TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE RESPONDENT 7 AT REGIONAL OFFICE AT THIRUVANANTHAPURAM.
EXHIBIT P25	TRUE COPY OF THE REGISTRATION CERTIFICATE OF ANIMAL LEGAL FORCE INTEGRATION.
EXHIBIT P26	TRUE COPY OF PAGE 6 OF MEMORANDUM OF ASSOCIATION OF ANIMAL LEGAL FORCE INTEGRATION.
EXHIBIT P27	TRUE COPY OF THE LETTER ISSUED TO PETITIONER BY MINISTRY OF ENVIRONMENT AND FORESTS.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4(A) TRUE COPY OF THE ESTIMATE PREPARED BY THE DIVISIONAL FOREST OFFICER, KASARAGOD AS REGARDS THE COUPE ROAD I KARUDUKKA SECTION IN KASARAGOD RANGE DATED 28.11.2014. EXHIBIT R10(a) TRUE COPY OF THE COMMUNICATION ISSUED BY THE MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE TO THE ADDITIONAL CHIEF SECRETARY,FOREST AND WILDLIFE, DEPARTMENT OF FORESTS, KERALA, DATED 5/2/2019 EXHIBIT P10(b) TRUE COPY OF THE REMINDER SENT BY THE MOEF TO THE ADDITIONAL CHIEF SECRETARY, FOREST AND WILDLIFE, DEPARTMENT OF FORESTS, KERALA DATED 19/2/2019 EXHIBIT R10(c) TRUE COPY OF THE REMINDER SENT BY THE MOEF TO THE ADDITIONAL CHIEF SECRETARY, FOREST AND WILDLIFE, DEPARTMENT OF FORESTS, KERALA DATED 14/6/2019.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Angels Nair v. the Principal Secretary to Department of Forest and Wild Life

Case brief

What is this about?

What did the court decide?

Angels Nair v. the Principal Secretary to Department of Forest and Wild Life

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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