Disposed

Jayachandran M.N. v. Union of India

Kerala HC10 Nov 2021WP(C)/10425/2018

Case brief

AI extract

What is this about?

Non-forest use of reserved forest land for pilgrim facilities was challenged. The court disposed of the petition by directing processing of the diversion proposal within two months and its forwarding for Central Government orders. It prohibited commercial use of the premises in the meantime.

What did the court decide?

Forest officer and Collector directed to process the diversion proposal within two months; Union to pass orders on receipt. Commercial use prohibited meanwhile.

Jayachandran M.N. Vs Union of India — Environment and Pollution | Kerala HC (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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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943

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WP(C) NO. 10425 OF 2018

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PETITIONER:

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JAYACHANDRAN M.N., AGED 59 YEARS, S/O K.NARAYANAN NAIR, RESIDING AT MUNDAMATTOM HOUSE, THODUPUZHA P.O, IDUKKI 685 584.

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BY ADVS.SRI.M.R.HARIRAJ SMT.B.MEERA

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RESPONDENTS:

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1 UNION OF INDIA, REPRESENTED BY MINISTRY OF ENVIRONMENT AND FORESTS (MoEF), GOVERNMENT OF INDIA, NEW DELHI 110 001.

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2 MINISTRY OF ENVIRONMENT AND FOREST REGIONAL OFFICE (SZ), BANGALORE.

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3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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4 PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCE, FOREST HEADQUARTERS, THIRUVANANTHAPURAM.

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5 CONSERVATOR OF FORESTS, SOCIAL FORESTRY (CENTRAL REGION), ERNAKULAM.

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6 ASSISTANT CONSERVATOR OF FORESTS, NATURE STUDY CENTRE, KALADY.

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7 RANGE FOREST OFFICER, NATURE STUDY CENTRE, KALADY.

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8 VICAR, ST. THOMAS CHURCH, MALAYATTOOR.

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9 M.S. JAYARAMAN, WORKING AS CONSERVATOR OF FORESTS, SOCIAL FORESTRY CENTRAL REGION, ERNAKULAM.

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10 SRI. BABY SAJAN, WORKING AS ASSISTANT CONSERVATOR OF FORESTS, NATURE STUDY CENTRE, KALADY.

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ADDL.R11 DIVISIONAL FOREST OFFICER, KALADY, ERNAKULAM (Impleaded as additional respondent no.11 vide judgment dated 10.11.2021 in W.P. (C)No.10425/2018)

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ADDL.R12 DISTRICT COLLECTOR, ERNAKULAM. (Impleaded as additional respondent No.12 vide judgment dated 10.11.2021 in W.P. (C)No.10425/2018)

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BY ADVS.SRI.K.SHRI HARI RAO, CGC

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SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL SRI.PHILIP J.VETTICKATTU SRI.MARTIN CHACKO SRI.M.N.VEDARAJ

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SPL. GOVERNMENT PLEADER SRI.S.RENJITH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 10^th day of November, 2021

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S. MANIKUMAR, C.J.

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Petitioner in this writ petition is stated to be an Honorary Wild Life Warden and Secretary to the Idukki Society for Prevention of Cruelty Against Animals, a statutory society under the Prevention of Cruelty to Animals Act, 1960.

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Being aggrieved by Exhibit-P3 order dated 17.03.2018, by which, permission was granted by the 6^th respondent/Assistant Conservator of Forests, Nature Study Centre, Kalady, to use reserve forests in Malayattoor Hills for non forest purpose, petitioner has approached this Court, by filing this public interest writ petition.

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Reliefs sought for in this writ petition are as under:

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i. To call for the records leading to Exhibit P3 and quash the same by the issuance of a writ of certiorari or other appropriate writ, order or direction;

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ii. To declare that no non-forest activity including construction of temporary shops/sheds for establishment of service centres/shops can be permitted in Reserve Forest Area by the respondents 3 to 7 and direct respondents 3 to 7 not to grant such permissions to any person including 8^th respondent;

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iii. To direct the official respondents to take appropriate action against respondents 9 and 10 for having committed offences under Section 3 B of Forest (Conservation) Act, 1980, by the issuance of a writ of mandamus or other appropriate writ, order or direction;

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iv. To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents not to permit any kind of non-forest activity within the reserved forest area in Malayatoor by any person and direct them to take appropriate action to prevent such activities from being carried out.

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Mr. M. R. Hariraj, learned counsel for the petitioner, submitted

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that St. Thomas Church, Malayattoor, is on the top of Kurisumala and the same is in a pattayam land. The pathway leading to Kurisumudi Church is notified as a reserve forest, by virtue of the notification published in the official gazette under the Forest Regulation dated 1.7.1895. The above land and an area of 10 acres in the foot hill near to the statue, from where the approach road starts, was given on lease for a period of 3 years, by virtue of Government Orders G.O.(Rt) No.3166/69/Agriculture dated 30.12.1969 and G.O.(MS) No.327/77/ Agriculture dated 29.09.1976.

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It is further submitted by the learned counsel for the petitioner that the above leases were not extended and the entire approach road and 10 acres of land are being used by the Church, in violation of the

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provisions of the Forest (Conservation) Act, 1980. Even though Kerala State Forest Department has requested the church authorities to give a proposal to the Central Government, for diverting the said land, the same has not been done, even after a period of more than 30 years.

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It is further submitted by the learned counsel for the petitioner that no forest land or any portion thereof can be used for any non forest purpose, except with the prior approval of the Central Government. In the instant case, there is no prior approval of the Central Government to use any portion of the forest land in Malayattoor, which is also a reserved forest, for any non-forest purpose. The establishment of service centres, either on commercial or non commercial basis, is a non-forest purpose. According to the learned counsel, Exhibit-P3 impugned in this writ petition is not an order issued under Section 2 of the Forest (Conservation) Act, 1980, and hence, the same is unsustainable and not appealable.

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Learned counsel for the petitioner also submitted that by permitting violation of Section 2 of the Forest (Conservation) Act, 1980, respondents 9 and 10 have committed offences punishable under Section 3B of the Forest (Conservation) Act, 1980.

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Pursuant to the direction of this Court on 26.03.2018, Conservator of Forests, Social Forestry (Central Region), Ernakulam, respondent No.5, has filed a detailed statement dated 31.03.2018, wherein it is stated as under:

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A. It is true that sanction was accorded for releasing out of 10 acres of forestland needed for an approach road to the Kurisumudi church in Malayattoor Forest during 1969 as per Annexure-R5(a) Order No. GO(Rt) No.3166/69/Agri. dated 30.12.1969 of Agriculture (Forest Estt) Department, Government of Kerala. In the said order, it has been specified that the area will be around the statute at the beginning of the road for the purpose of car parking, for a period of three years and that the lease period will be for three years. The church authorities will not put any claim for the improvements effected by them and that they will be permitted to improve and maintain the road and parking area. In the said order, the following directions were issued to the Chief Conservator of Forest, to furnish the following information:

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i. The exact extent of the area of the road to be leased out.

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ii. The reasonable rent to be fixed. The fact that the Church makes good income every year may be taken into account while fixing rent.

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B. It is further contended that as per G.O.[Rt] No.2936/70/AD dt. 30.10.1970 of Agriculture [Forest Estt.] Department, Government of Kerala [Annexure-R5(b)], sanction was

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accorded for leasing out the actual surveyed area of forest land of 22.70 acres [9.19 h.a.] at a lease rate of Rs.100/acre. (This include 10 acres for car parking area and 12.70 acres road over for the easy movement of pilgrims to the shrine) Moreover, sanction was also accorded to extract teak and rosewood trees departmentally and other remaining trees in the area to be disposed of in public auction. The trees in the area were cleared as per the above order. As per G.O. [MS] No.179/73/AD dated 28.05.1973 (Annexure-R5[c]) Government have ordered lease conditions fixing the lease rent and initial lease period as three years. During 1976, Government have revised the lease rent at Rs.125/H- per hectare as per G.O. [MS] 327/76/Agri. dt.29.09.1976 [Annexure-R5(d)].

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C. The 5^th respondent further contended that since 1969, the area of 22.70 acres of forest land is being enjoyed by Kurisumudi Church Authorities and that lease rent are being realized every year from the Church Authorities till date. No specific period of lease has been mentioned in the Annexure R5(d). The church has not entered into any written lease agreement, but is remitting the lease rent as per the demand by the forest authorities in charge of the area from time to time and the present lease rent realized is @ Rs. 1,300/- per Ha. per annum.

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D. It is further contended that for more than about half century the St. Thomas International Shrine Authorities has been enjoying the above 22.70 acres and lakhs of

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people are visiting this holy shrine round the year and especially during the Maundy Thursday, Good Friday and Easter seasons. The walkway through which St. Thomas International Shrine is accessed by the pilgrims is the above walkway through the forest. Over the years basic pilgrim amenities have been provided in this area like, tap water, street light etc., and shade trees have been planted in the middle of the traditional route, which is undulating rocky and steep with the resting places at several points. During February-March 2017, the Church Authorities did black toping of the car parking area, for which offence, OR No.1/2017 under the Kerala Forest Act, 1961, has been registered against the Church Authorities.

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E. It is further contended that during March 2017, Tourism Department gave administrative sanction as per G.O.[Rt] No.179/2017/PSM dt. 26.03.2017 [Annexure-R5(e)], for tourist facilitation at Kurisumudy, with a estimated project cost of Rs.2,30,00,000/-. When this proposal came up before the Forest Department, it was objected because the area for development is not specified in the said Government order and that since the area is continued to be a reserve forest, not diverted permanent improvement could be done, as evident from Annexure-R5(f) letter dated 25.07.2017.

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F. It is further contended that after the promulgation of the Forest Conservation Act, 1980, the department is pursuing the Church Authorities for filing application under the Act 1980, if the Church Authorities require the area to be

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diverted. During 2002, the Church Authorities identified some land in Mannarkkad in view of the above lease land later on as per the instruction of Forest Department, the area in Mannarkkad was not found suitable and not accepted. Even now the Church Authorities could not file an application under Forest Conservation Act for the diversion of the above lease land which is due to the dispute between the church authorities, which has been clearly spelled out in their application dated 13-3-2018 to the Assistant Conservator of Forest, Nature Study Centre, Kalady. In the letter they have assured that immediately after the festival season they will take up the matter with the Government of India and will file an application.

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G. During this year's festival season of Good Friday and Easter, the Church Authorities attempted to auction the areas for running shops in the above 22.4 acres. Having come to know of their attempt, which is of commercial nature, the present forest officials objected and the matter was presented in the meeting of the Co-ordination Committee chaired by the District Collector, Ernakulam. Having not succeeded in auctioning the land for running shops, the Church Authorities applied before the Assistant Conservator of Forests, Nature Study Centre, Kalady on 13.3.2018 [Ext.P1] for permitting them to provide basic amenities for the pilgrims.

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H. The track through which the pilgrims pass through, to reach the shrine, is a forest track, which is undulating,

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rigged and with steep slopes. Thousands and thousands of pilgrims, including small children, women, ladies, old people etc., passes through this area as part of pilgrimage. The Forest Department could not provide basic amenities for the pilgrims passing through this area. An information centre of the forest department is functioning at the entrance of this route at the downhill. Based on the request of the Church Authority and on humanitarian grounds direction was issued to the Forest Subordinates as per Ext.P3 that only four temporary service centres shall be allowed in this route for providing drinking water, soft drinks and rice porridge for the welfare of the pilgrims during this peak summer season and that too shall not be on commercial basis, with a clear direction that all the waste disposal and whatever temporary structures that has been erected shall be removed under the responsibilities of the Church Authorities. No formal orders has been given by any authority of the Forest Department and Ext.P3 is only an internal communication from the Asst. Conservator of Forests to the Range Forest Officer with a copy to the Conservator of Forests. The act done by the forest officials are only on humanitarian grounds and for the welfare of the pilgrims. The present forest authorities have actually contained the activities of the Church Authorities by limiting to four service shops. Since the land has been under the enjoyment of the Church Authorities for about half a century it is necessary that they shall either get the

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area diverted as per the procedures of the Forest Conservation Act, or that the land may be ordered to be resumed back to the Government, prohibiting all further activities in the area. For the foregoing reasons, the 5^th respondent prayed for dismissal of the writ petition with costs.

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Annexure-R5(a) order in G.O.(Rt) No.3166/69/Agri. dated

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30.12.1969 issued by the 5^th respondent is reproduced:

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“ORDER

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Sanction is accorded for leasing out forest land needed for an approach road to the Kurisumudy Church in Malayattur Forest Division and an area of 10 acres around the statue at the beginning of the road for the purpose of a Car Park for a period of three years subject to the specific condition that the Church will not put any claims for the improvement effected by them and that the Department may resume the land at any time without assigning reasons with a notice of one month. The Church authorities will be permitted to improve and maintain the road and the car park area.

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The Chief Conservator of Forests is requested to furnish information on the following points immediately:

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i. The exact extent of the area of the road to be leased out.

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ii. The reasonable rent to be fixed. The fact that the Church makes good income every year may be taken into account while suggesting the rent.

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iii. Other terms and conditions to be prescribed in the matter.

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Annexure-R5(b) order in G.O(Rt.) No. 2936/70/AD. dated

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30.10.1970 issued by the Under Secretary to the Government, Agriculture (Forest) Department, reads as under:

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“ ORDER

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Sanction has been accorded as per G.O.Rt. 3166/69/Agri. dated 30.12.1969 for leasing out of forest land which is found on actual survey to have an extent of 22.70 acres or 9.19 hectares to the Church authorities, Kurusumudi, Malayattur.

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The Divisional Forest Officer has suggested an annual lease rent at the rate of Rs.100/- per acre.

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The church authorities have proposed to take electric supply through the land ordered for lease and requested that the trees along the line may be cut and removed after sale of the trees to the party at seigniorage rate. The Chief Conservator of Forests has recommended that the trees, which have been valued to Rs.12,100/(excluding 10 teak wood trees, and one rosewood tree valued to Rs. 7,380.94) may be sold in public auction and the party can also participate in the auction.

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In the circumstances sanction is accorded for extraction of the teak wood and Rosewood trees

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departmentally and for the disposal of the remaining trees in public auction.

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(By order of the Governor)

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K. K. Gopalan Under Secretary to Government”

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Annexure-R5(c) order in G.O.(Ms) No.179/73/AD dated

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28.05.1973 issued by the Under Secretary, Agriculture (Forest-General) Department, Government of Kerala, is extracted hereunder:

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“ ORDER

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In the G.Os. read as first and second papers above, sanction was accorded to lease out 12.70 acres of forest land for an approach road to the Kurusumudi Church in the Malayattoor Forest Division, and an area of 10 acres around the Statue at the beginning of the road for the purpose of 3 years. Sanction was also accorded for the disposal of treegrowth in the area.

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Government have been considering the terms and conditions for the above lease. They are now pleased to order that the following terms and conditions will be prescribed for the purpose.

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1. Annual lease rent at the rate of Rs.100/- per acre for the area to be leased out to the car park and road will be realised. A security deposit at Rs.500/per acre for the satisfactory completion of the lease is also fixed.

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1. The whole area will be continued as reserve Forests under the control of the Forest Department. The period of lease will be 3 years for the initial stage as

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already ordered by the Government. But the Government reserve the right to extend the lease period, at their discretion with a month's notice to the Church authority.

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1. The church will have no right to construct any permanent structures over the area. Special sanction of the Government should be obtained for the proposed improvements to be made and such improvements should be removed as an when required by the Government at the cost of the Church.

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1. The lessee will be responsible for the damages if any caused to the cairns etc. and irregularities or illicit felling in the adjoining reserves, say within 2 chains on either side of the road and around the car park and such loss, if any, as assessed by the department will be made good from the lessee.

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1. The area should be used only for the purpose for which it is granted and in case of misuse, the lease will be cancelled.

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1. The permission to use the area the car park and approach road to the Kurisumudi church granted will never be deemed to create an easement right in favour of the lessee or by others.

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1. The Government will have full control over the area and the lessee shall surrender the same if and when required by the Government without claiming any compensation.

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1. The lessee will remit the rent fixed yearly in advance in the Sub Treasury at Kunnathunad and produce the receipted chalan before the Range Officer, Kodanad on or before 31^st January of every year. In case of default, a further period of 30 days may be allowed by the Divisional Forest Officer, Malayattoor, subject to the payment of penal interest at 12%. Even then if the lessee fails to remit the lease rent, the lease will be cancelled and the area resumed back, without any further notice.

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1. On breach of all or any one of the terms of this agreement, the lease will be cancelled and the security will be forfeited to Government.

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1. All amounts found due from the lessee as rent or compensation for damages if any caused to he properties of the Government by the lessee from the lessees from their assets under the R.R.Act in force or by other legal means besides forfeiting the security.

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1. The lessee shall abide by the forest act and rules framed thereunder and shall assist the forest officers in detecting forest offences and in extinguishing forest fires in the near vicinity.

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1. In case of any dispute between the Divisional Forest officer, Malayattoor and the lessee, in any matter in connection with the lease, the same shall be referred to the Conservator of Forest, Central Circle, Trichur, whose decision shall be final and legally binding.

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1. An agreement specifying the above conditions and also any other conditions required to safeguard the interest of the Government will be executed by the lessee before the land is handed over to him.

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The Chief Conservator of Forests will take further immediate steps in this regard.

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(By order of the Governor)

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P. KRISHNAN NAIR, Under Secretary.”

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Annexure-R5(d) order in G.O.(Ms) No.327/76/Agri. dated

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29.09.1976 issued by the by the Under Secretary, Agriculture (Forest-

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General) Department, Government of Kerala is extracted hereunder:

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“ORDER

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In the G.O. read above, sanction was accorded to lease out an area of 22.70 acres of forest land in Malayattur Forest Division to the Kurisumudi church for the purpose of approach road and Car Park subject to the terms and conditions specified therein. The lease rent fixed in the above case was Rs.100/- per acre per annum. Fr. Paul Chakkiath, vicar, Kurisumudi Church in his representation read above has requested Government that the rate of lease rent may be reduced and certain conditions of the G.O. cited deleted. Government have considered the question in consultation with Chief Conservator of Forests and they are pleased to order hat the lease rent in respect of the above area will be Rs.125/per hectare per annum. They also order that the other conditions in the G.O. cited will stand. The Government order read above will stand modified to the above extent.

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(By order of the Governor)

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N. SURENDRANATHAN, UNDER SECRETARY.”

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Annexure-R5(e) order in G.O.(Rt) No.179/2017/TSM dated

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26.03.2017 issued by the Additional Secretary, Tourism Department, Government of Kerala, is extracted hereunder:

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“ ORDER

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Malayattoor Kurisumudi Church is one of the top Christian pilgrim centers in Kerala and is closely associated with Christ's apostle St. Thomas, who is believed to reach Kerala for gospel proclamation. St. Thomas, the patron saint or father of Christians in Kerala, believed to light the candle of faith in Kerala before he was martyred at Malayattoor. St. Thomas is believed to

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visit and to pray on this mountain and the imprinted foot steps on rooks are considered as an approving-sign for his arrival. There is a golden cross that is believed to appear on the mountain when St. Thomas touched the rock. It is one of the major attractions of Malayattoor St. Thomas Church.

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Ms. GITPAC has submitted a project of "Tourist Facilitation at Kurisumudi, Malayattoor, Ernakulam (Dist)" at an estimated cost of the project at Rs. 2,30,00,000/- (Rupees Two Crore and Thirty lakhs Only). It includes Tourist facilitation Centre cum mediation hall, Pavilions or resting hut, Bamboo Panthal, Toilets, R.O Plant, Landscaping with garden grass, Electrification and yard - lighting, Planting of trees with protective grid and railings.

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Director, Tourism Department as per his letter read above has requested the Government to sanction the project "Tourist Facilitation at Kurishumudy. Malayattoor, Ernakulam (Dist)" at an estimated cost of the project is Rs. 2,30,00,000/- (Rupees Two Crore and Thirty lakhs Only).

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The working group meeting held on 23.03.17 approved the proposal subject to the condition that, 1) estimate based on price software and Technical sanction by competent authority. The working group also suggested to meet the expenditure from the provision earmarked

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under the head of account "5452-01-101-99-Up gradation and Creation of Infrastructure and Amenities".

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Government have examined the project proposal in detail and are pleased to accord Administrative Sanction for the implementation of the project “Tourist Facilitation at Kurishumudi, Malayattoor, Ernakulam (Dist)" at an estimated cost of Rs.2,30,00,000/- (Rupees Two Crore and Thirty lakh Only), with the conditions imposed by the Working Group. Expenditure will be met from the head of Account 5452-01-101-99-Up gradation and Creation of Infrastructure and Amenities with Department of Tourism as executing agency. The project shall be completed within a period of 18 months. All the procedural and codal formalities, and the conditions stipulated in G.O.(P) No.408/07/Fin. dated 07.09.2007, G.O. (P) No.311/14/Fin. dated 30.07.2014 and G.O.(P) No.11/15/Fin. dated 08.01.2015 should be followed strictly in implementing the project.

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By order of the Governor SARASWATHI AMMA K ADDITIONAL SECRETARY”

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On behalf of the Union of India, represented by the Ministry of Environment and Forests (MoEF), Government of India, New Delhi, and Ministry of Environment and Forest, Regional Office (SZ), Bangalore, respondents 1 and 2, the Central Government Counsel has filed a statement dated 05.10.2021, wherein it is stated that no proposal

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under the Forest (Conservation) Act, 1980, for diversion of forest land, in favour of Malayattoor Church Authorities has been received from Government of Kerala by the 2^nd respondent.

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It is further stated that for diversion of forest land, for non forestry purposes, prior approval of the Central Government is required under the provisions of Forest (Conservation) Act 1980. It is also submitted that the Forest (Conservation) Act, 1980, is enacted, with a view to conserve common and fast depleting precious forest resources and also to restrict rapid de-reservation of forest land for non-forestry purposes.

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It is also contended that the Hon'ble Supreme Court vide interim order dated 12.12.1996 in W.P. No. 202/95 has issued directions for cessation of all non-forestry activities going on in forest areas, without prior approval of the Central Government. In the said order, the Hon'ble Apex Court has stated that the word "Forest" must be understood according to its dictionary meaning and also the term "forest land” occurring in Section '2' of the Forest (Conservation) Act, 1980 will not only include "forest” as understood in the dictionary sense, but also any area recorded as forest in the Government records

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irrespective of ownership or classification thereof.

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It is also contended that no proposal under the Forest (Conservation) Act, 1980 for diversion of forest land, in favour of Malayattoor Church Authorities, has been received from Government of Kerala by the 2^nd respondent.

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Apart from the above, respondent No.8/Vicar, St. Thomas Church, Malayattoor, has filed a detailed counter affidavit, wherein it is stated that upon closing of the festival season, all the temporary structures put up on the strength of Exhibit-P3 were completely removed and the said fact was ascertained by the forest officials as well. It is also submitted that, the 8^th respondent has not done anything, in contravention of mandate of Section 2 of Act, 1980.

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Relevant portions of the counter affidavit read as under:

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“4. The allegations in Paragraph No.2, 3 and 4 are not correct and therefore denied. It is submitted that, the Malayattoor Kurisumudi is one of the oldest pilgrim centers of the Country. A large number of pilgrims, cutting across religions and countries, used to visit the Shrine, every year, which is situated on the top of the Kurisumudi, for the past several centuries. It is the belief of the faithful that Apostle of Jesus Christ, St. Thomas had visited the Kurisumudi Hills, enroute to Mylapore and prayed there. Since then, the area is being revered by the faithful and used to visit and pray there and the said area is being considered as one of the major

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pilgrim centers ever since. A Church, came into existence even before 900 A.D. An extent of 5.19 Hectares of land, wherein the Shrine is situated on the top of Kurisumudi, has been assigned by the erstwhile King of Kochi, as a reverence to the Shrine. Ever since the said land is under the absolute ownership and possession of the church.

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The path leading to the Shrine from the valley, is having a length of approximately less than 2 KM, which is steep. The Kurisumudi witnesses a large flow of pilgrims during the Lent season, which spread from February to April every year. It is submitted that the number of pilgrims crosses more than 80 Lakhs a year. It is in such circumstances that more space for pathway and parking was obtained under lease from the Government in the year 1969. The leased area is being served as parking, as well as access to the Shrine. The allegation that lease was granted only for a period of 3 years is misconceived and wrong. It is submitted that, still later, the Government passed an order dated 28-5-1973 revising the terms of the lease, wherein no time limit is specified.

¶148

It is submitted that the respondent has been remitting the lease rent from time to time. The lease is still in force. It is submitted that, the 8^th respondent used to plant trees in the lease area, every year and the lease area is having substantial presence of trees. It is submitted that more than 80% of the existing trees are planted and grown by the Church. The undergrowth will be cleared only during the Lent season and that too with the permission of the Forest officials and under their supervision.

¶149

The allegation that, the 8^th respondent has not submitted any proposal to the Central Government for diverting the land is absolutely incorrect.

¶150

It is further submitted that the 8^th respondent had submitted a proposal in Form A, as contemplated under Section 2 of the Forest (Conservation) Act, 1980 for diversion of 9.1866 Hectares of Forest Land through Parivesh Portal of the Ministry of Environment and Forests on 6-12-2020.

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Still later, an email alert from the System Administrator of Online submission and Monitoring of Forest Clearances Proposal (OSMFCP) Portal was generated on 12-2-2021 intimating that the proposal has been examined by the Nodal Officer, Forest (Conservation) Act, 1980 and found to be complete in all respect.

¶153

In the meanwhile, the respondent submitted hard copy of the proposal to the competent authorities. Similar copy was given to the office of the District Collector on 9-2-2021. It is submitted that as evident from Ext.R8(e), the proposal is under process.

¶154

The allegations raised in paragraphs 5, 6, 7 and 8 of the writ petition are absolutely incorrect, and therefore, stoutly denied. The allegation that during the festival season the Church authorities are auctioning hundreds of stalls inside the forest area, without any permission of the Central Government, in violation of Section 2 of the Forest (Conservation) Act, 1980; that the Forest Department has not granted permission to erect any temporary structure, including the stalls at any point of time till 2018; that the respondent has been using the entire path for erection of temporary sheds, where various commercial stalls, for food, beverages and other items had been permitted to run and that this respondent had also conducted auctions for the shops so installed during the past years; that the official respondents, who were responsible to take action in this regard, turned a blind eye to the patent violation of statutory mandates and the illegal activities of the respondent, and that, when an attempt was made to bituminize the parking lot, the forest officials prevented the same and registered O.R.No.1/2017 against the church officials, are absolutely incorrect, baseless and misconceived and raised for misleading this Court. The allegations are stoutly denied by the 8^th respondent. It is submitted that the 8^th respondent is not auctioning any stalls inside the Forest area for conducting any trade. The 8^th respondent, in the year 2018, had sought for permission to supply the basic requirements, considering the voluminous flow of pilgrims who visit during the Lent season. It is

¶155

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¶156

submitted that, though a restricted permission was granted by the authority for serving drinking water, etc., no such permissions were granted for the succeeding years. As already submitted, it was in view of the large number of pilgrims that respondent No.8 was constrained to approach the respondent for such permission.

¶157

The allegation that Ext.P3 order is malafide, illegal, arbitrary and passed on extraneous consideration, the same is in violation of the provisions of the Forest (Conservation) Act, 1980 and Kerala Forest Act, 1961, are absolutely incorrect, and therefore, stoutly denied.

¶158

It is further submitted that upon the closing of the festival season, all the temporary structures, which were put up on the strength of Ext.P3 were completely removed. The said fact was ascertained by the forest officials as well. It is also submitted that, the 8^th respondent has not done anything, in contravention of mandate of Section 2 of Act, 1980. Ext.P4 is devoid of any merits. The same is nothing, but vexatious and filed for extraneous reasons. The allegations raised in paras 14 and 15 and the contentions raised in Grounds A to H are absolutely unsustainable and therefore denied.”

¶159

Relevant pages of the proposal submitted by the 8^th respondent, in Form A, as contemplated under Section 2 of the Forest (Conservation) Act, 1980, for diversion of 9.1866 hectares of forest land

¶160

through Parivesh Portal of the Ministry of Environment and Forests on 06.12.2020 [Exhibit-R8(c)], is reproduced hereunder:

¶161

“ PROJECT PROPOSAL

¶162

(Proposal No.FP/KL/Approach/68413/2020)

¶163

Proposal seeking prior approval of Central Government under Section 2 of the Forest (Conservation)

¶164

WP(C) NO. 10425 OF 2018 :: 23 ::

¶165

Act, 1980 for diversion of 9.1866 Ha. of forest land which has been hitherto leased to and used by St. Thomas International Mount Shrine at Kurisumudy in Malayattoor Village, Ernakulam district, Kerala.

¶166

Submitted by

¶167

Rev. (Fr.) Varghese Manavalan B.A, MTh.

¶168

Vicar, St. Thomas Church, Malayattor &

¶169

Vice Rector, St. Thomas, International Shrine

¶170

Kurisumudy

¶171

Malayattor P.O, Ernakulam District, Kerala Pin-683587

¶172

Phone: 0484 2468848 Mobile :9447182099

¶173

E-mail: [email protected]

¶174

Sl. CONTENTS

¶175

¶176

1 Form A Proposal 2 Justification note for the proposal 3 Authority for submission of the proposal 4 G.O.Rt. 3166/69 Agri. Dtd.30/12/1969 leasing out forest land needed for approach road to Kurisumudy Church and car parking area.

¶177

5 GO(MS) No.179/73/AD Dtd. 28/05/1973 related to the lease land at Kurisumudy.

¶178

6 GO(M) 327/76/Agri. Dtd 29/09/1976 revising the lease rent of the forest land for Kurisumudy Church.

¶179

7 Copy of the receipted chalan for remitting the lease rent for the financial year 2019-20

¶180

8 GPS-Survey map of the forest land occupied by the user agency at Kurisumudy

¶181

9 Survey Map of the forest land occupied by the user agency (Also showing the locations of activity (nos. from 1 to 50) included in the action plan).

¶182

WP(C) NO. 10425 OF 2018 :: 24 ::

¶183

10	Map of the Reserve Forests at Kurisumudy.
11	Possession Certificate of the Shrine Property at Attappady in Agali Village proposed for exchange with Forest Dpt. for compensatory afforestation.
12	Location Certificate of the Shrine Property at Attappady.
13	Location map of the Shrine Property at Attappady.
14	Copy of the receipt for remitting the land-tax of the property at Attappady for 2020-21.
15	Copy of title deeds of the property at Attappady (4Nos)
16	Lr. No. D-2760/03 dtd. 06.11.2004 of the DFO Mannarkad addressed to the Range Officer, Attappady after inspecting the Shrine Property at Attappady.
17	Lr. No. D-2760/03 dtd. 28.01.2005 of the DFO, Mannarkad addressed to the ACF, Nature Study Centre, Kalady reporting that the Shrine, Property at Attappady is found suitable for compensatory afforestation.
18	GPS Survey map of the Shrine Property at Agali (Attappady)
19	Survey Map of the Shrine Property at Agali (Attappady)
20	Action Plan for the forest land occupied by the user agency at Kurisumudy in Malayattoor Village.
21	Drawings of various activities proposed in the Action Plan to provide better facilities for pilgrims visiting Kurisumudy Shrine.

¶184

FORM-A

¶185

Form for seeking prior approval of Central Government under section 2 of the Forest (Conservation Act, 1980 for Diversion of fresh forest area

¶186

PART - I

¶187

(To be filled up by User Agency)

¶188

WP(C) NO. 10425 OF 2018 :: 25 ::

¶189

A. General Details

¶190

A- Project Details 1.

¶191

(i). Proposal No. : FP/KL/Approach/68413/2020

¶192

(ii). Name of Project for which Forest Land is required : Diversion of 9.1866 Ha of Forest Land for approach road to St Thomas International Shrine Kurisumudy, Malayattoor under Forest Conservation Act 1980

¶193

(iii). Short narrative of the proposal and Project/scheme for which the forest land is required : The present proposal is for seeking the prior approval of the proposals for granting and extent of 9.1866 Hectares of forest land which has been, hitherto, leased to and used by St. Thomas International Mount Shrine at Kurisumudy.

¶194

(iv). State : Kerala

¶195

(v). Category of the Project : Approach Access

¶196

(vi). Shape of forest land proposed to be diverted : Linear

¶197

(vii). Estimated cost of the Project(Rupees in lacs) : 0

¶198

(viii). Total Area of Forest Land proposed for diversion (in ha.): 9.1866

¶199

(ix). Non-Forest Land required for this project (in ha.): 0

¶200

A. Details of User Agency 2. (i) Name: ST. THOMAS CHURCH, KURISUMUDY, MALAYATTOOR

¶201

(ii) Address1 : ST. THOMAS INTERNATIONAL SHRINE, KURISUMUDY, MALAYATTOOR P 0, PIN-683587

¶202

(iii) Address2 : NIL

¶203

(iv) State : Kerala

¶204

(v) District : Ernakulam

¶205

(vi) Pin : 683587

¶206

(vii) Landmark : NIL

¶207

(viii) Email address : [email protected]

¶208

WP(C) NO. 10425 OF 2018 :: 26 ::

¶209

(ix) Landline Telephone No. : 484-2468848 (x) Fax No : 484(xi) Mobile No. : 9847669975 (xii) Website (if any): NIL (xiii) Legal status of User Agency : Private A- Details of Person Making Application 3. (i) First Name: Fr. Varghse (ii) Middle Name: NIL (iii). Last Name: Manavalan (iv). Gender: Male (v). Designation: Vicar, St.Thomas Church Malaya (vi). Address 1: ST. THOMAS CHURCH, MALAYATTOOR P 0 (vii). Address 2: NIL (viii). State: Kerala (ix). District: Ernakulam (x). Tehsil: Aluva (xi). Pin: 683587 (xii). Landmark: NIL (xiii). Email Address: [email protected] (xiv). Landline Telephone No.: 484-2468848 (xv). Fax No.: NIL

¶210

(xvi). Mobile No.: 9447182099

¶211

(xvii). Copy of documents in support of the competence/ authority of the person making this application to make application on behalf of the User Agency:

¶212

B. Details of land required for the Project

¶213

B-Details of proposal seeking prior approval of Central Government under the Act.

¶214

WP(C) NO. 10425 OF 2018 :: 27 ::

¶215

for diversion of forest land for the Project already submitted to the past.

¶216

		List	of propo	sal submitte	d in Past
S.no NIL	Propo sal Status	Proposal No.	Moef File No.	Area Proposed for Diversion (Ha.)	Area Diverted (Ha.)	Date of In- Principle Approval	Date of Final Appro val

¶217

B-

¶218

Details of forest land proposed to be diverted

¶219

¶220

B-2.1 Details of Divisions involved

¶221

S. no	Details of Division Name	Divisions Involved Forest Land (ha.)	Non-Forest Land (ha.)
1.	Nature Study Centre, Kalady	9.1866	0

¶222

B-2.2 Details of Districts involved

¶223

	Distri	ct wise breakup
S. no	District Name	Forest Land (ha.)	Non-Forest Land (ha.)
1.	Ernakulam	9.1866	0

¶224

B-2.3 Village wise breakup

¶225

	Village	wise breakup
S. no	Village	Forest Land (ha.)	Non-Forest Land (ha.)
1.	Nature Study Centre, Kalady	9.1866	0

¶226

B-2.4 Component wise breakup

¶227

Component wise breakup

¶228

WP(C) NO. 10425 OF 2018 :: 28 ::

¶229

S. no	Component	Forest Land (ha.)	Non-Forest Land (ha.)
1	Car Parking	4.05	0
2	Approach Road	5.1366	0

¶230

WP(C) NO. 10425 OF 2018 :: 29 ::

¶231

(i) Whether the Project is likely to general employment ? : No

¶232

F. Displacement of People due to the Project, if any.

¶233

(i) Whether Project involves displacement?: No

¶234

G. Details of Cost-Benefit analysis for the Project

¶235

(i) Whether the Project requires Co-Benefit analysis?: No

¶236

H. Status of Environmental Clearance

¶237

(i) Whether the Project requires Clearance under the Environment (Protection) Act 1986 ? : No

¶238

I. Status of Wildlife Clearance

¶239

(i) Whether the Project or a part thereof is located in any Protected Area or their ECO sensitive zone? : No

¶240

J. Applicability of special provisions governing Scheduled Areas

¶241

(i) Whether the Project or a part thereof is located in a Scheduled Area?: No

¶242

WP(C) NO. 10425 OF 2018 :: 30 ::

¶243

K. Status of settlement of rights under the Forest Rights Act, 2006 on the forest land proposed to be diverted

¶244

(i) Whether the process for settlement of Rights under the Forest Rights Act, 2006 on the forest land proposed to be diverted has been completed? : No

¶245

L. Details of land identified for Compensatory Afforestation

¶246

(i) Whether non-forest or Revenue forest land is required to be provided by User Agency?: Yes

¶247

(ii) Whether the area of forest land proposed to be diverted ? : No

¶248

(iii) No. of districts involved for raising Compensatory Afforestation: 1 (iv) No. of patches: One

¶249

District 1. : Palakkad

¶250

(a) Village: Agaly

¶251

(b) Area (in ha.) : 9.7096

¶252

¶253

(d) Khasra details: Survey No.742/15 of Agaly Village

¶254

(e) Present owner: User Agency

¶255

(f) Copy of Ownership Proof:

¶256

(v) Scanned copy of the map the land identified for creation of Compensatory Afforestation prepared by using GPS ot Total Station:

¶257

(vi) Copy of Survey of India Toposheet in 1:50,000 scale indicating location of the land identified for creation of Compensatory Afforestation:

¶258

WP(C) NO. 10425 OF 2018 :: 31 ::

¶259

Additional information Details

¶260

		Documents
	S. No	Documents	Remarks
1
2

¶261

Email alert originated from the OSMFCP dated 12.02.2021

¶262

[Exhibit-R8(c)] is reproduced hereunder:

¶263

“Email Alert from System Administrator of Online Submission and Monitoring of Forests Clearances Proposal (OSMFCP) portal

¶264

--------------------------	----------------------------	-----------------------
xx xxxxx	12 February	2021 at 15:29

¶265

A proposal seeking prior ap Forest (Conservation) Act, 1 been examined by the Nodal Government of Kerala and respects.	proval of Central Government under the 980, as per the details given below, has Officer, Forest (Conservation) Act, 1980, has been found to be complete in all
1. Proposal No.	: FP/KL/Approach/68413/2020 Diversion of 9.1866 Ha of Forest Land for approach road to St.
2. Proposal Name	Thomas International Shrine Kurisumudy, Malayattoor under Forest Conservation Act, 1980
3. Category of the proposal	: Approach Access
4. Date of Submission	: 06/12/2020
5. Name of the applicant wit	h Contact Details
Name	: Fr Varghse
Mobile No.	: 9447182099
State	: Kerala
District Pincode	: Ernakulam : 683587

¶266

WP(C) NO. 10425 OF 2018 :: 32 ::

¶267

Area applied (ha.) : 9.1866

¶268

The Proposal is being forwarded to concerned DFOs and DCs for further processing.

¶269

(System Administrator)

¶270

*** This is a system generated email, please do not reply.***”

¶271

Exhibit-R8(e) is the acknowledgement slip dated 10.02.2021

¶272

issued from the Conservator of Forests, Kalady and Exhibit-R8(f) is the acknowledgement slip dated 09.02.2021, issued from the office of District Collector, Ernakulam. One of the acknowledgement slips is extracted hereunder:

¶273

“ Acknowledgement Slip

¶274

This is to certify that hard copy of the proposal seeking prior approval of Central Government under the Forest (Conservation) Act, 1980, as per details given below, along with all necessary enclosures has been received in the Office of the Kerala on 06/12/2020.

¶275

Proposal No. : FP/KL/Approach/68413/2020 2. Proposal Name : Diversion of 9.1866 Ha of Forest Land for approach road to St. Thomas International Shrine Kurisumudy, Malayattoor under Forest (Conservation) Act, 1980

¶276

Category of the proposal : Approach Access

¶277

Date of Submission : 06/12/2020

¶278

Name of the applicant with Contact Details

¶279

Name : Fr Varghse Mobile No. : 9447182099

¶280

WP(C) NO. 10425 OF 2018 :: 33 ::

¶281

State : Kerala District : Ernakulam Pincode : 683587

¶282

Area applied (ha.) : 9.1866”

¶283

From the above material on record, it is evident that the

¶284

path leading to the Shrine from the valley, is having a length of approximately less than 2 kms., which is steep. Kurisumudi witnesses large flow of pilgrims during Lent season, spread from February to April every year. It can be further deduced that as the number of pilgrims crosses more than 80 lakhs a year, more space for pathway and parking, has been obtained under lease from the Government, in the year 1969. The leased area is being served as parking, as well as access to the Shrine. It can also be seen that though restricted permission was granted by the authority for serving drinking water, the same has been removed and no such permission was granted for the succeeding years.

¶285

On 8^th November, 2021, we directed the Vicar, St. Thomas Church, Malayattoor, respondent No.8, and the learned Special Government Pleader, to get instructions as to the stage of the proposal dated 06.12.2020, stated to have been submitted by the Vicar,

¶286

WP(C) NO. 10425 OF 2018 :: 34 ::

¶287

St. Thomas Church, Malayattoor/respondent No.8 to the Central Government under Section 2 of the Forest (Conservation) Act, 1980, for diversion of 9.1866 Hectares of forest land through Parivesh Portal of the Ministry of Environment and Forests.

¶288

Perusal of the Online Submission and Monitoring of Forests Clearances Proposal (OSMFCP) portal indicates that the proposal has been examined by the Nodal Officer under the Forest Conservation Act, 1980, and found to be completed in all respects. On instructions, it is now informed that the Nodal Officer has forwarded a copy of the proposal to the District Collector, Ernakulam, on 9.2.2021 for processing and that, the proposal will attain its logical end.

¶289

Mr. S. Renjith, learned Special Government Pleader, further submitted that the above proposal is being examined by the Divisional Forest Officer, Kalady and the District Collector, Ernakulam, and if sufficient time is given, the same would be considered and forwarded to the Central Government, for appropriate orders under the Forest (Conservation) Act, 1980, if it is in order.

¶290

Recording the statements, as well as counter affidavits of the

¶291

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¶292

respective parties, and taking note of the pendency of the proposal before the District Collector, Ernakulam, we are not inclined to issue any directions, as prayed for in this writ petition. Upon perusal of the parties arrayed in this writ petition, it could be seen that neither the concerned Divisional Forest Officer nor the District Collector, Ernakulam has been impleaded as party respondents, before whom, the proposal is stated to be pending.

¶293

In order to issue appropriate directions to the above, to consider the proposals, in accordance with the provisions of Forest (Conservation) Act, 1980, we deem it fit that the Divisional Forest Officer and the District Collector concerned, have to be impleaded as party respondents in this writ petition. In exercise of the powers under Article 226 of the Constitution of India, the Divisional Forest Officer, Kalady is impleaded as additional respondent No.11, and the District Collector, Ernakulam, is impleaded as additional respondent No.12.

¶294

Proposal dated 06.12.2020 submitted to the office of the Conservator of Forests, Social Forestry (Central Region), Ernakulam/

¶295

WP(C) NO. 10425 OF 2018 :: 36 ::

¶296

respondent No.5, would be considered by the competent authority, if it is in order, and thereafter, be forwarded to the District Collector, Ernakulam. Thereafter, the proposal be verified and forwarded to the Central Government for approval under the Forest (Conservation) Act, 1980. It is stated that the application is pending consideration before the authorities from 06.12.2020.

¶297

Mr. S. Renjith, learned Special Government Pleader, submitted that two months’ time is required for processing the application, and thereafter, to forward to the Central Government.

¶298

Placing on record the submission of the learned Special Government Pleader, we direct the Divisional Forest Officer, Kalady/ additional respondent No.11, to consider the proposal, which has been already examined by the Nodal Officer under the Forest (Conservation) Act, 1980, and found to be complete in all respects. Thereafter, the Divisional Forest Officer shall forward the same to the District Collector, Ernakulam.

¶299

We make it clear that the entire exercise has to be done, within a period of two months from the date of receipt of a copy of

¶300

WP(C) NO. 10425 OF 2018 :: 37 ::

¶301

the judgment and there shall not be any delay in processing, on the part of the Divisional Forest Officer/District Collector, Ernakulam.

¶302

Respondent No.1/the Union of India, represented by Ministry of Environment and Forests (MoEF), Government of India, New Delhi, shall pass appropriate orders on the proposal, on receipt of the same from the District Collector, Ernakulam. However, we make it clear that in the meanwhile, respondent No.8/Vicar, St. Thomas Church, Malayattoor, shall not use the premises for any commercial purposes.

¶303

Writ petition is disposed of.

¶304

SD/S.MANIKUMAR CHIEF JUSTICE

¶305

SD/SHAJI P. CHALY JUDGE

¶306

jes & krj

¶307

WP(C) NO. 10425 OF 2018 :: 38 ::

¶308

APPENDIX

¶309

PETITIONER'S EXHIBITS:

¶310

EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 13-03-2018 TO THE 6TH RESPONDENT SUBMITTED BY THE 8TH RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT ALONG WITH ITS TRUE ENGLISH TRANSLATION.

¶311

EXHIBIT P2 TRUE COPY OF LETTER DATED 15-03-2018 OF THE 7TH RESPONDENT RECEIVED UNDER THE RIGHT TO INFORMATION ACT ALONG WITH ITS TRUE ENGLISH TRANSLATION.

¶312

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17-03-2018 RECEIVED UNDER THE RIGHT TO INFORMATION ACT ALONG WITH ITS TRUE ENGLISH TRANSLATION.

¶313

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 18-03-2018.

¶314

RESPONDENTS' ANNEXURES:

¶315

ANNEXURE R5(a) TRUE COPY OF THE GOVERNMENT ORDER GO(Rt)NO.3166/69/AGRI. DATED 30.12.1969 OF AGRICULTURE (FOREST ESTT) DEPARTMENT

¶316

ANNEXURE R5(b) TRUE COPY OF GOVERNMENT ORDER GO(RT)NO.2936/70/AD DATED 30.10.1970 ANNEXURE R5(c) TRUE COPY OF THE GOVERNMENT ORDER GO(MS)NO.179/73/AD DATED 28.5.1973.

¶317

ANNEXURE R5(d) TRUE COPY OF THE GOVERNMENT ORDER GO (MS)NO.327/76/AGRI.DATED 29.9.1976.

¶318

ANNEXURE R5(e) TRUE COPY OF THE GOVERNMENT ORDER GO(RT)NO.179/2017/TSM DT.26.3.2017.

¶319

ANNEXURE R5(f) TRUE COPY OF LETTER NO.C1-287/15 DATED 25.7.2017 ADDRESSED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.

¶320

EXT.R8(a) TRUE COPY OF THE ORDER PASSED BY THE GOVERNMENT DATED 28.5.1973. EXT.R8(b) TRUE COPY OF THE RECEIPT SHOWING THE REMITTANCE OF LEASE RENT UPTO THE PERIOD 2021-2022

¶321

EXT.R8(c) TRUE COPY OF THE RELEVANT PAGES OF THE PROJECT PROPOSAL SUBMITTED THROUGH PARIVESH PORTAL

¶322

EXT.R8(d) TRUE COPY OF THE EMIAL ALERT ORIGINATED FROM THE OSMFCP DATED 12.2.2021.

¶323

EXT.R8(e) TRUE COPY OF ACKNOWLEDGEMENT SLIP DATED 10-2-2021 EXT.R8(f) TRUE COPY OF ACKNOWLEDGMENT SLIP ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR.

¶324

// TRUE COPY //

¶325

P.S. TO JUDGE

Jayachandran M.N. v. Union of India

Case brief

What is this about?

What did the court decide?

Jayachandran M.N. v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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