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2014 DIGILAW 596 (MAD)

S. Sivaprakasam v. Government of Tamil Nadu

2014-03-06

M.M.SUNDRESH, SATISH K.AGNIHOTRI

body2014
Judgment : 1. This writ petition has been filed as a public interest litigation by the petitioner, who was a member of the Tamil Nadu State Legislative Assembly from 1980 to 1988, seeking the following prayer: "writ of mandamus directing the respondents to lay road from Pudhurpalapatti to Valkuzhipatti by considering the representation of the petitioner dated 15.11.2013.” 2. Facts in brief: Kolli Hills is a mountain range located in Central Tamil Nadu, Namakkal District. It covers an extent of 280 km2. These hills are part of Eastern Ghats maintaining its original character till now. There are 16 reserve forests in the Kollimalai hills attracting the provisions of Tamil Nadu Forest Act, 1982 and Forest (Conservation) Act, 1980. The private lands are all notified as hill areas under the provisions of Tamil Nadu Preservation of Private Forest Act 1949. The Office of the District Rural Development has asked respondent No.5 about the feasibility of creating a road in the year 2004. Thereafter the 4th respondent in and by letter dated 30.11.2006 wrote to respondent No.2 seeking sanction under the Rural Infrastructure Development Fund with assistance from NABARD for improvement and black topping of the road. The said fact was also informed to the petitioner by respondent No.3 and in and by proceedings dated 28.4.2010. Thereafter respondent No.1 passed G.O. in G.O.Ms.No.208 Environment and Forests (FR-10) Department, dated 7.12.2010, by which an administrative sanction was accorded for the project. 3. In the meanwhile a joint inspection was made on 24.4.2007 by respondents No.3, 4 and 5. The following is the relevant passage of the joint report: "It has been observed that the stretch of admitted right of way from Puliampatti to Valkulipatty is around 0.95 km. having a width of 3m. It is an admitted right of way and is an undulated highly rocky terrain. For formation of road along existing right of way, cutting and filling of earth, removal of boulders and rocks, construction of retaining walls have to be done. At one or two places in this stretch as the gradient is steep and rocky, curves and bends need to be provided. In Valkulipatty Village it runs for some length in Patta lands outside Nayakkankombai RF, From Valkulipatty to Pallapattipudur which is about 2.60 Km, having a width of 3m. it follows an existing coupe road with alignment in Perumalmalai RF and Nayakkankombai RF. In Valkulipatty Village it runs for some length in Patta lands outside Nayakkankombai RF, From Valkulipatty to Pallapattipudur which is about 2.60 Km, having a width of 3m. it follows an existing coupe road with alignment in Perumalmalai RF and Nayakkankombai RF. Here also in some stretches cutting and filling of earth will be involved and wherever gradient is steep bends will have to be provided. A copy of RF notification in which admitted right of way is allowed and proposed road marked in the SI, sheet is closed.". 4. Thereafter respondent No.5 in and by the communication dated 13.2.2008 sent to respondent No.3 has stated as follows: "5. From Valkulipatti to Palapattipudur the road alignment was along the already existing coupe road with a portion falling in Nayakkancombai Reserved Forest and some portion in Perumalmalai Reserved Forest. 6. From Valkulipatty to Palapattipudur, the admitted right of way is different and coupe road is different. The coupe road formed has bends and turns. 7. The road cannot be formed along the admitted right of way without widening and providing bends as the gradient is not favourable for road formation. Hence it attracts F(C) Act. 8. Moreover the road touches Palapattipudur at the foothill towards Periacombai. If the road is allowed be formed there will definitely be protection problem as it will provide easy access and mobility to miscreants who can indulge in illegal activities like felling of trees in Reserved Forests, Felling and removing of trees from patta lands without permission from Kollihills which is a HP act area i.e., without permission from Hill Area Preservation Act Committee,etc.," 5. The said respondent No.5 has also sent another communication to respondent No.3 on 8.10.2007 which is also extracted here: "I submit that the proposed road from Puliampatti to Palapattipudur via Valkulipatty is as follows: 1. From Puliampatty to Valkulipatty. 2. From Valkulipatty to Palapattipudur The road Puliampatty to Valkulipatty follows the right of way in Nayakkancombai RF. The road from Valkuli to Palapattipudur follows the existing coupe road for a distance of 2.5 km with alignment in Perumalai RF and Nayakkancombai RF and not along the right of way. In this part of road cutting and filling of earth will be involved and wherever gradient is step bends will have to be provided. The road from Valkuli to Palapattipudur follows the existing coupe road for a distance of 2.5 km with alignment in Perumalai RF and Nayakkancombai RF and not along the right of way. In this part of road cutting and filling of earth will be involved and wherever gradient is step bends will have to be provided. Since, the Pathway from Valkulipatty to Palapattypudur follows coupe Road and not the admitted right of way in many places cutting, filling and formation of bends are involved, it attracts Forest (conservation) Act." Submissions of the Petitioner: 6. Learned counsel for the petitioner has submitted that what is sought for is only the completion of work by extending the road. The road is already in existence. The proposed work is required in the interest of poor villagers and tribals. People will have to reach hospitals, schools and other places of public importance. As the laying of road is a basic amenity, appropriate orders will have to be passed. Merely because the proposed road is in the forest there cannot be a blanket order refusing to lay the same. The 5th respondent cannot review the joint inspection report, which has been given not only by the said authority but also by respondent Nos.4 and 6. Such a unilateral action on the part of respondent No.5 is not permissible in law. In support of his contention, learned counsel has made reliance upon the following decisions: "(1) State of Himachal Pradesh and another Vs. Umed Ram Sharma and others, (1986) 2 SCC 68 ; (2) M.C.Mehta Vs. Union of India and others, (2012) 8 SCC 123 and (3) Orissa Mining Corporation Limited Vs. Ministry of Environment and Forests and others, (2013) 6 SCC 476 ." Learned counsel also made reliance upon a Gazette notification dated 2.1.2007 issued by the Union of India in this regard. Submissions of respondents: 7. Learned Government Pleader based upon the counter affidavit filed by respondent No.5 submitted that it is not true that the petitioner seeks the extension of existing road. There are two well laid black top roads available from the lower hills/plains to reach Valkulipatti village and vice versa. What the petitioner seeks is by way of an attempt to create another road by clearing the spontaneous growth of forest in steep hill terrine. There are two well laid black top roads available from the lower hills/plains to reach Valkulipatti village and vice versa. What the petitioner seeks is by way of an attempt to create another road by clearing the spontaneous growth of forest in steep hill terrine. In other words, what the petitioner seeks in effect is to lay a fresh road by breaking the steep hill for a range of 3 Kilometres by vertical distance. Considering the ecological sensitiveness involved, the relief sought for cannot be granted. There is also a possibility of landslide if road is laid indiscriminately affecting the intricate balance of nature. It is also submitted that until and unless permission is obtained from the Government of India as well as appropriate orders from Honourable Apex Court in W.P.(C) No.202 of 1995 for the clearance of spontaneous growth, petitioner's request cannot be granted. Clearance is also required under the Forest (Conservation) Act, 1980 as well as from the Hill Area Preservation Act Committee. The petitioner does not have any fundamental right in this regard. Making reliance upon the orders of the Honourable Apex Court in W.P.(C) No.202 of 1995 in T.N.Godavarman Thirumulpad Vs. Union of India, ( (1997) 2 SCC 267 ) and M.C.Mehta Vs. Kamal Nath and others, ( (1997) 1 SCC 388 ), it is submitted by the learned Special Government Pleader that considering the overwhelming public interest involved, the writ petition will have to be dismissed. Discussion: 8. The learned counsel appearing for the petitioner has primarily contended that respondent No.5 cannot re-write the decision made jointly by respondents No.4 to 6. The said contention, in our considered view, cannot be countenanced. In the joint report filed, there is no indication of the relevancy and applicability of various enactments. The report also did not discuss about the impact on the forest while implementing the proposed action. Furthermore, in a communication dated 13.2.2008, respondent No.5 has given several reasons, which have not been discussed in the joint inspection report dated 24.4.2007. Being the competent authority, it is well open to respondent No.5 to consider the issue from the perspective of the forest. Therefore, we do not find anything wrong in the contents of the communication dated 13.2.2008 sent by respondent No.5 in favour of respondent No.3 as well as the other communication dated 8.10.2007. Being the competent authority, it is well open to respondent No.5 to consider the issue from the perspective of the forest. Therefore, we do not find anything wrong in the contents of the communication dated 13.2.2008 sent by respondent No.5 in favour of respondent No.3 as well as the other communication dated 8.10.2007. On the contrary, they only demonstrate the genuine concern and the anxiety on the part of respondent No.5. 9. Having said that, we do not propose to go into the other issues involved. By the letters dated 8.10.2007 and 13.10.2008, respondent No.5 has sent communications to respondent No.3 for his consideration. Apart from the factual narration made therein, it has also been stated about the requirements that are necessarily to be complied with under law viz., getting permission under the Forest Conservation Act as well as from the Hill Area Preservation Committee etc., In the counter affidavit also it has been stated that permission is required from the Central Government as well as the Honourable Apex Court. Considering the specific stand taken by respondent No.5, we are not inclined to delve much on the merits of the case. This, we do so, since respondent No.5, after noting her objections, both on facts and law, has placed the matter before respondent No.3. Therefore, we deem it fit to direct respondents No.1 and 3 to take appropriate action in the manner known to law after considering the entire materials available on record including the two communications sent by the respondent No.5 dated 8.10.2007 and 13.2.2008. As the said process would take considerable length of time, we do not propose to fix any time limit leaving it open to respondents No.1 and 3 to act in accordance with law. The writ petition is disposed of accordingly. However, there is no order as to costs.