Dismissed

Binu. v. Vs Divisional Forest Officer

Kerala HC2 Dec 2021WA/1725/2020

Case brief

AI extract

What is this about?

The High Court disposed of two writ appeals challenging the refusal of Divisional Forest Officers to grant vehicular access through reserve forests for transporting explosives and building materials. The Bench affirmed the Single Judge's orders, holding that such commercial activities fall under non-forest purposes requiring Central Government approval, and cited environmental protection mandates.

What the court decided

AI extract

Binu. v Vs Divisional Forest Officer — Property and Title | Kerala HC (2021)

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W.A.Nos.1725 of 2020 & 216 of 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 2^ND DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943

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WA NO. 1725 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 6349/2020 OF HIGH COURT OF KERALA

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APPELLANT:

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BINU. V AGED 50 YEARS S/O.VISWAMBARAN, VATTAKAITHAYIL HOUSE, SIVANKOVIL ROAD, PUNALUR, KOLLAM DISTRICT, PIN-691105. BY ADVS. P.K.SURESH KUMAR (SR.) SRI.V.M.KRISHNAKUMAR

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RESPONDENTS:

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1 DIVISIONAL FOREST OFFICER MALAYATOOR FOREST DIVISION, KODANAD, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683544.

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2 FOREST RANGE OFFICER, KODANAD FOREST RANGE, KODANAD, ERNAKULAM, PIN-683544. BY ADV SRI.T.P.SAJAN, SPECIAL GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2021, ALONG WITH WA.216/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.1725 of 2020 & 216 of 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 2^ND DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943

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WA NO. 216 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 15096/2020 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:

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C.V.SUJAI AGED 51 YEARS

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S/O. C.N.VIJAYAN, MANAGING PARTNER, TWINS ARMOURY, SS KOVIL ROAD, PADINJARE THAMPANOOR, THIRUVANANTHAPURAM, PIN-695 001.

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BY ADV M.C.JOHN

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RESPONDENTS:

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1 DIVISIONAL FOREST OFFICER THIRUVANANTHAPURAM, PIN-695 014.

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2 THE DISTRICT COLLECTOR

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COLLECTORATE, TRIVANDRUM, PIN-695 043.

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3 THE DEPUTY COLLECTOR

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COLLECTORATE, TRIVANDRUM, PIN-695 043.

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BY ADV SRI.T.P.SAJAN, SPECIAL GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2021, ALONG WITH WA.1725/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.1725 of 2020 & 216 of 2021

JUDGMENT

SHAJI P.CHALY,J.

Captioned appeals are filed by petitioners in W.P.(C) No.6349/2020 & W.P.(C) No.15096/2020, challenging the judgment of the learned Single Judge dated 4.11.2020 and 4/01/2021 respectively, whereby the permission sought for by the petitioners for vehicular access to their property through reserved forests were declined by the Divisional Forest Officer, Malayattoor, Ernakulam District and the Divisional Forest Officer, Thiruvananthapuram, respectively. Since the subject matter of the appeals are substantially the same, we propose to dispose of the same together, as agreed upon by counsel for appellants and the learned Special Government Pleader.

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Appellant in appeal No.1725/2020 is the owner in possession of an extent of 47.50 Ares of land in Re-Sy Nos.88/3-1 and 88/1 of Kombanad Village. The predecessor-in-interest of the property had a magazine to store explosives in the aforesaid property. The predecessor-in-interest of the property as per Exhibit P2 order dated 2.9.2005 has secured a Non Objection Certificate and on the basis of

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W.A.Nos.1725 of 2020 & 216 of 2021

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the same, has obtained an explosive licence for construction of a store house. According to the appellant,on the basis of the sale deed, the aforesaid licence was transferred in the name of the appellant and it is in force even now.

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The case projected by the appellant is that the aforesaid land is surrounded by acacia plantation of Hindustan NewsPrint Limited on the basis of a lease deed executed by the State Government to an extent of 8000 hectares of land; there is no other natural grown up trees in the aforesaid area; acacia is an 8 year crop, which is cut and removed for timber for manufacturing newsprint for Hindustan NewsPrint Limited; that for the purpose of loading and transporting the acacia timber the aforesaid area is having roads for taking heavy vehicles and trucks; appellant's building to store the explosives is also situated in the aforesaid area and the appellant is using the same road for taking vehicles to the property in question; the aforesaid land was declared as reserve forest as per Reserve Forest Notification dated 17.11.1925; that there are various enclosures within the aforesaid reserve forest land, which are not vested, which includes a footpath leading to enclosures; that there are about 10 residential families within the enclosures but under the guise that the aforesaid land continues to be a reserved forest as per the notification, the respondents are now taking a stand that the appellant will not be permitted to take vehicles through the road; and therefore, according to the appellant, the said act of

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W.A.Nos.1725 of 2020 & 216 of 2021

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the respondents is highly illegal, unfair and arbitrary.

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In writ appeal No.216 of 2021, the case of the appellant is that he purchased 8 Acres and 26 cents of property in Pangode Village, Thiruvananthapuram District, for constructing two explosive magazines, to which the appellant has all permits and licenses issued by the competent authorities. It is the submission of the appellant that the only access to the property is a coupe road passing adjacent to eucalyptus/acacia plantations of the Kerala Forest Development Corporation (KFDC) under the Social Forestry wing of the Forest Department. Case of the appellant is that, the appellant and his predecessor-in-interest of the property were using the coupe road for transportation of rubber latex in barrels and trucks; that for construction of two magazines of 660sq.ft and 220sq.ft each, appellant submitted an application for permission to use the road for transporting the building materials and thereafter, for transportation of explosives twice during day time between 7 a.m. and 5 p.m., however, as per Exhibit P9 order of the Divisional Forest Officer, Thiruvananthapuram dated 18.2.2020, the application was rejected on the ground that the forest area of the coupe road are having the presence of wild bison and elephants even during day time and it is their abode; and that the construction of magazines and godown are likely to affect the ecosystem as well as habitat of animals and therefore, at present it is not possible to grant permission. The case

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W.A.Nos.1725 of 2020 & 216 of 2021

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projected by the appellant is that in the plantation, there are no wild animals and the Kerala Forest Development Corporation itself is using the road for transportation of eucalyptus in lorry.

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The learned Single Judge, after taking into account the statement filed by the Divisional Forest Officer, Malayattoor, has dismissed W.P.(C) No.6349/2020, leading to writ appeal No.1725/2020, after taking into consideration the provisions of the Forest (Conservation) Act, 1980, hereinafter called, “Act, 1980”, and various judgments rendered by this Court, holding as follows:

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“7. It is seen admitted that the enclosure in which the petitioner's magazine is situated, is surrounded by reserve forest. Petitioner has also stated that enclosures including the pathway to the enclosures are not vested in forest or Government. According to the respondents, the said pathway permitted to the enclosures is having the width of only 7 feet and therefore no vehicles can be permitted to be used for commercial or nonforestry purposes.

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In the judgment in W.A.No.971/2018, which affirmed the judgment in W.P(c).No.33526/2017, relied on by the learned Special Government Pleader, this Court held that the petitioners therein did not have any authority to insist user of road passing through teak plantation under the respondents, even if it was being used for running the crusher unit. The contention of the petitioners therein was that the road in question was used for transportation of materials to the crusher unit which was being

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W.A.Nos.1725 of 2020 & 216 of 2021

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there for the last several years. The contention of the Forest Department was that it is a notified reserved forest and the Forest Department had not granted permission to anybody to use the road for transportation of materials. Even though the appellants therein argued that the said crusher unit had been functioning there for several years, this Court did not permit them to continue the use of the road through the reserve forest. In the judgment in W.P.(C).No.33526 of 2017 also this Court did not allow a similar claim raised for using the road to the crusher unit of the petitioner therein, though it was claimed that the unit had started functioning in 1997. It was held that forest areas cannot be permitted to be used for any commercial activity in accordance with the Forest Conservation Act as well as Kerala Forest Act, 1961.

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Even though the learned counsel for the petitioner relied on the judgment State of Kerala & Ors. v. Ravi C.A & Ors. (supra), it is seen that there the question was relating to drawing of electric line through a forest road. As pointed out by the learned Special Government Pleader, in that case this Court was considering the case of a tribal to get electric line drawn to his dwelling, which is governed by Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Section 3 of the said Act provides for the rights of the traditional forest dwellers to live in the forest land. Section 3(2) provides for diversion of forest land notwithstanding the provisions contained in the Forest Conservation Act, for certain facilities managed by Government mentioned therein on certain conditions. Electric and communication lines is one among such facilities. Therefore, it was directed that the

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W.A.Nos.1725 of 2020 & 216 of 2021 8

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Forest Department cannot deny sanction for drawing electric line saying that permission from the Central Government is necessary again to implement a scheme propounded by the Central Government itself. Therefore, that judgment will not apply to the facts of this case.

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The judgment in Nature Lovers Movement v. State of Kerala & Ors. (supra) was one where the nature lovers movement approached this Court challenging the construction of a road by the Hindustan Newsprint alleging that prior approval from Central Government was not obtained for the same in accordance with the Forest (Conservation) Act, 1980. The contention of the respondents was that the construction of road to reach the plantations is for conservation, development and management of forest. This Court found that the road was not laid for any private purpose but to honour the commitment entered into between the State Government and the Hindustan Paper Corporation Ltd. which is a Government of India undertaking and the Government had agreed to supply raw materials like eucalyptus, reeds and other pulpwood for the newsprint factory. It was also found that the plantation was yielding pulpwood, wattlewood etc. and the Hindustan Newsprint project is a forest based industry. It was in that context that this Court had occasion to hold that construction of road in such circumstances was not for non-forestry purpose and declined interference. It is relevant to note that by the very same judgment this Court cautioned the Government that it should be guided by the mandates under Article 48A of the Constitution of India to protect and improve the environment and to safeguard the wildlife. This Court also

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W.A.Nos.1725 of 2020 & 216 of 2021 9

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observed that it is the fundamental duty of citizens under Article 51A(g) to protect and safeguard the forest. This Court did not interfere with the steps taken by the Government and the Hindustan Newsprint, taking note, also, of the fact that the road was already laid. There is nothing in that judgment which would help the petitioner.

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In the present case the petitioner himself admits that the road through which he wants to take vehicle is in a reserve forest. W.P(c).No.6349/2020-P 12 He wants the vehicular traffic for transportation of explosives, which is for commercial activity, which is impermissible under the Forest Conservation Act as well as Kerala Forest Act. The petitioner cannot have any fundamental right to take vehicles through a reserve forest contrary to the provisions in those statutes.

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Therefore, I am of the view that the claim of the petitioner that he should be permitted to use the forest road to take his vehicles through it, is unsustainable.”

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The writ petition leading to writ appeal No.216 of 2021 was also dismissed by

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the learned Single Judge under identical circumstances and taking note of the judgment in W.P.(C) No.6349 of 2020 (connected writ appeal matter). It is thus challenging the legality and correctness of the judgments, the writ appeals are preferred.

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We have heard learned Senior Counsel for appellant Sri.P.K.Suresh Kumar, assisted by Adv.V.M.Krishnakumar, learned counsel for the appellant in W.A

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W.A.Nos.1725 of 2020 & 216 of 2021

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No.216/2021 Sri.M.C.John, learned Special Government Pleader Sri.T.P.Sajan and perused the pleadings and materials on record.

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The paramount contentions advanced by learned counsel are that, the notification dated 17.1.1925 produced as Exhibit R1(b) in W.P.(C) No.6349/2020 specifically excludes 5 enclosures from the forest reserve and therefore, the 5 enclosures are not part of the forest reserve; at the outset it is made clear, the said aspect is not disputed by the Divisional Forest Officer; it is also true that the property of the appellant is a part of one such enclosures;however, it is contended that the notifications specially reserves right of way in favour of the holders of land within the enclosures through eight footpaths marked in the reserve area; that the reserve area was entrusted to Hindustan NewsPrint Limited for raising acacia plantation in the early 1970's and the Hindustan NewsPrint Limited has widened the footpaths into motorable roads much prior coming into force of the Forest (Conservation) Act, 1980; that Hindustan NewsPrint Limited has now become defunct and the Forest Department is taking steps to take back the plantation and convert it into a natural forest and that the Forest Department does not prohibit plying of vehicles on the roads in question by owners of lands within the enclosures; and that the forest department does not allow vehicles to ply if the purpose is for commercial activities. Apart from the same, it is contended that the Forest (Conservation) Act, 1980

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W.A.Nos.1725 of 2020 & 216 of 2021 11

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specifies that no reserve shall be dereserved or no forest shall be used for non forest activities unless prior permission has been obtained from the Central Government but non forest purpose is defined by the Act, 1980, as per an explanation to section 2 of the said act, which basically states that any activity which involves breaking up of forest or clearing of forest land or no portion thereof for any kind of purpose is non forest purpose.

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Therefore, according to the appellants, if any activity is to be held as a non forest activity, the test is as to whether any such activity is involved with breaking up of forest or clearing up of any forest land. Therefore it is contended that in the present case, the question is whether plying of vehicles through the roads that came into existence prior to the Forest (Conservation) Act, 1980 can be termed as a non forest activity. According to the appellants, as the plying of vehicles is not involved with any breaking up of forest or clearing of forest, it cannot be termed as a non forest activity. That apart it is contended that the footpath over which the right of way was declared as per the 1925 notification, are no longer footpaths but motorable roads and those roads were built prior to the Act, 1980 and therefore, the user of such roads will not constitute a non forest activity as the user is not involved with any breaking up of forest or clearing of forest. It is also submitted that the plying of vehicles would not become a non forest activity when the purpose of plying

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W.A.Nos.1725 of 2020 & 216 of 2021

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of vehicles is commercial since the impact of plying of a vehicle on a road whether for commercial or other purposes is the same.

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Learned counsel for appellants had relied upon the judgment of the Apex Court in Jaswant Singh and Another v. Custodian of Evacuee Property, New Delhi [1985(3)SCC 648], Nature Lovers Movement v. State of Kerala and Others [(2009) 5 SCC 373] and contended that the property obtained by the appellant for commercial activities, were being carried on prior to the introduction of Act, 1980 and therefore, the judgment rendered by the Apex Court supra would strictly applies to the instant case and therefore, the approach made by the Forest Authorities not granting permission for the use of roads for the purpose of plying vehicles for transportation of materials for construction of magazines and for storage of explosives, cannot be sustained legally.

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Learned counsel for appellants have also relied upon the Division Bench of this Court , in which one of us is a party [ (Justice Shaji P.Chaly) (2015 (5) KHC 397) ], in regard to drawing of electric lines through forest areas for forest dwellers and scheduled tribes. Other contentions are also raised by learned counsel for appellants relying upon the Notification of 1925 and the Act, 1980.

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We have appreciated the submissions made by respective counsel.

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Learned Special Government Pleader for Forest submitted that as per

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W.A.Nos.1725 of 2020 & 216 of 2021

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notification of 1925, the enclosure occupied by the appellant in W.P.(C) No.1724 of 2020 is a dereserved area. However, it is clear from the said notification itself that only a footpath with a total length of 138 chains and width of 3 feet alone is admitted within the reserve for the use of the holders of land inside the reserve. This is an admitted position.

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The Hindustan NewsPrint Limited and the Kerala Forest Development Corporation were permitted to plant acacia/eucalyptus, for producing pulp, which is not a non forest activity in contemplation of Act, 1980, which is an admitted position. Merely because roads were made for the transportation of eucalyptus/acacia by the Hindustan NewsPrint Limited and the Kerala Forest Development Corporation Ltd. that will not in any manner enable the appellants to claim that the roads so made within the reserve forest area have become dereserved from the provisions of the Act, 1980 entitling the appellants to use the roads as of right.

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The contentions put forth by the learned counsel for appellants are that going by section 2 of the Act, 1980, non forest purpose means breaking up of or clearing of any forest land or portion thereof and since already roads are created by the Hindustan NewsPrint Limited and Kerala Forest Development Corporation, there is no breaking up so as to constitute the activities of the appellants for a non forest purpose. In order to understand the true implications of section 2 of the Act, 1980, it

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W.A.Nos.1725 of 2020 & 216 of 2021

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is extracted hereunder:

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“2. Restriction on the dereservation of forests or use of forest land for non-forest purpose .—Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,—

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(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved

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ii) that any forest land or any portion thereof may be used for any non-forest purpose;

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(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

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(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.]

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[Explanation .—For the purposes of this section ‘‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for—

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(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;

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(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.]”

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W.A.Nos.1725 of 2020 & 216 of 2021

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On an analysis of section 2, it is clear that the activity undertaken by the Hindustan NewsPrint Limited and the Kerala Forest Development Corporation is not a non forest activity. Therefore, the formation of roads for the purpose of transportation of trees cut and removed for the activities permitted is a forest activity. It is also clear from section 2 that the non forest purpose is clearly prescribed and any activity within the one permitted under the provisions can be given permission by the forest authorities without securing prior permission of the Central Government. It is also clear that section 2 excludes all other laws for the

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time being in force and the State or any other authority is prohibited from permitting any activities except with the prior approval of the Central Government. It is equally important to note that even though roads were formed by the respective establishments for the transportation of acacia/eucalyptus, the property used for formation of roads were never deserved from the forest area. Therefore the contentions advanced by the learned counsel for the appellants contrary to the said aspect cannot be sustained under law .

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It is also clear, as we have pointed out above that, the appellants are not entitled to enjoy anything more than that, for which permission was granted to them or their predecessor-in-interest of title as per the notification, to maintain

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the enclosures in a manner prior to the introduction of the Act, 1980. Even though the judgments of the Apex Court and this Court were relied upon, in our considered view, those judgments are rendered entirely on different facts and circumstances, and on the basis of notifications issued by the Government of India in the matter of protection of interest of the Scheduled Tribe people or other traditional forest dwellers, by virtue of the provisions of a central act . Appellants herein are not entitled to secure the benefits of those judgments since facts and circumstances involved in the appeal on hand are entirely different.

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That apart, the Forest Department has a specific case that the forests in question are having the presence of wild animals and if the construction of magazines are permitted within the enclosures, that may lead to dangerous situations affecting the life of animals as well as forest and the environment. While considering the said aspect, we are immediately reminded of the directive principles of State Policy contained under Part IV of the Constitution of India, wherein Article 48A was introduced on and w.e.f. 3.1.1977 which states that the State shall endeavour to protect and improve the environment & safeguard the interests of wildlife of the country. Similarly, part IV-A dealing with fundamental duties, was introduced on and w.e.f.3.1.1977, wherein also Article 51 A(g) stipulates that it shall be the duty of every citizen of India to protect and improve

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the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. It is with the intention of translating true intention of the directive principles of State Policy and the fundamental duties prescribed under the Constitution, the Act, 1980 was brought into force on and w.e.f.27^th December, 1980. The objects and reasons therein clearly specifies that deforestation caused ecological imbalances and leads to environmental deterioration, and deforestation had been taking place on a large scale in the country and it being a serious concern leading to the introduction of Act, 1980. Therefore, the provisions of Act, 1980 in our considered view have to be construed more strictly and without any laxity at all.

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Taking into account the aforesaid legal and factual circumstances, we are of the considered opinion that there is no jurisdictional error or other legal infirmities in the judgment of the learned Single Judge, justifying us to interfere in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958.

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Needless to say, writ appeals fail, accordingly they are dismissed.

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Sd/S.MANIKUMAR CHIEF JUSTICE

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SHAJI P.CHALY JUDGE

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smv

Binu. v. Vs Divisional Forest Officer

Case brief

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What the court decided

Binu. v. Vs Divisional Forest Officer

Case brief

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