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2015 DIGILAW 693 (KER)

Niyamavedi v. State of Kerala

2015-06-16

ASHOK BHUSHAN, P.R.RAMACHANDRA MENON

body2015
JUDGMENT : ASHOK BHUSHAN, J. 1. Heard the learned counsel for the petitioner Shri.A.X.Varghese, the learned Spl. Government Pleader Shri.M.P.Madhavankutty and the learned Counsel appearing for the Addl. 8th Respondent.Hindustan Newsprints Ltd. 2. This Original Petition was filed by the petitioner, who claims to be an Organisation, which is eager to protect environment and ecology. This Public Interest Litigation was preferred for preventing plunder of forest resources. Allegations have been made against the officials of the Forest Department. It was pleaded that large scale felling of Rose wood trees and other valuable trees is going on in Idukki Wild Life Sanctuary and in the High Ranges of Idukki District. Various newspaper reports have been referred to in the Original Petition. It has been pleaded that Kerala Forest Tree Project which has been initiated by the Forest Department is providing source for destruction activities. In the Original Petition, series of orders were passed by this Court. Application was filed by the petitioner for appointment of Advocate Commissioners to inspect and submit a report. An affidavit was filed highlighting various issues and points which were required to be looked into by the Advocate Commissioners. This Court by order dated 11-04-2001 in CM.P.No.9976 of 2001 appointed Advocate Commissioners and Shri. P.B. Sahasranaman was appointed as the Convenor of the Inspection Group. A clarification order was subsequently issued on 21-05-2001 pointing out the issues on which the report had to be submitted by the Advocate Commissioners. The Advocate Commissioners submitted a preliminary report on 30-05-2001. On 22-12-2000, this Court passed an interim stay of felling and removing of trees and destruction of undergrowth in the name of weeding and planting. 3. The additional 8th respondent/Hindustan Newsprint Limited came up with an application for impleadment which was allowed. By order dated 31-05-2001, although the 8th respondent/Hindustan Newsprint Limited was permitted to go on with the plainting of Acacia in the area set apart to them, direction was issued to the Kerala Forest Research Institute (KFRI) to see whether the weeding operation done by the Additional 8th respondent is something which is more than what is required. Certain other directions were also issued in the aforesaid order. Subsequently a further order was passed on 30-10-2001 directing the 8th respondent to file an affidavit of a qualified chemist in its employment describing the chemical composition of the pesticide with the trade name ‘Roban’. Certain other directions were also issued in the aforesaid order. Subsequently a further order was passed on 30-10-2001 directing the 8th respondent to file an affidavit of a qualified chemist in its employment describing the chemical composition of the pesticide with the trade name ‘Roban’. The learned Counsel for the Addl. 8th respondent submits that a certificate bringing on record the composition of the said pesticide is in file. A statement has also been filed on behalf of the second respondent as well as a counter affidavit by the 8th respondent. 4. Shri.A.X.Varghese the learned Counsel for the petitioner submits that no human interference be permitted in the forests which have to be protected for the environment and ecology to be maintained. He submits that the Forest (Conservation) Act, 1980 itself contains provisions prohibiting the State Government and other agencies to carry out any non-forest activities without the permission of the Central Government. He further submits that environment impact assessment has also to be carried out prior to carrying out any activity in the natural forest. Further direction has been sought for, for fixing responsibility and to initiate action against the officers who are responsible for destruction of forests. Direction has also been sought for, for scientific appraisal of the functioning of the Department and model method of execution of the scheme. 5. Shri.P.B.Sahasranaman, who was the convenor of the Advocate Commissioners, pointed out one of the recommendations made by the Advocate Commissioners that there should be some legislation for taking control of ecological fragile lands for better management of the forests. 6. Shri. M.P. Madhavankutty, the learned Special Government Pleader submits that Original Petition was filed in the year 2000 and there after, the State has come up with an Ordinance, which was subsequently enacted in 2003 - Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. He further submits that Forest Management Plans are approved for each division of the Forest with the approval of the Central Government and each forest will be managed according to the Forest Management Plans and all forest divisions including Idukki are being managed according to the forest plans as approved by the Central Government. He submits that the ecologically fragile lands have already been taken possession by the State and that they are in the custody and care of the State. He submits that the ecologically fragile lands have already been taken possession by the State and that they are in the custody and care of the State. He further submits that the Central Government has already filed a statement, wherein the direction of the Supreme Court for suspending felling of the trees has been noticed. 7. The learned Counsel for the 8th respondent submits that although at the time when the Statement was filed by the 8th respondent, it had continued the activities under the orders of the Court, no activities against the terms of the permission have been carried out. The learned Counsel further submits that he is not aware of the present status since no further instruction is received. 8. We have considered the submission of the learned Counsel. The original petition was filed in the year 2000 with the reliefs as noted above. 9. The learned Counsel for the petitioner has referred to the Commissioners’ report and has highlighted the report of the Commissioners, where the Commissioners have expressed the dissatisfaction regarding the manner of a weeding. It is submitted that night weeding was resulting casualty of rosewood and other trees and no scientific mechanism or procedural aspect was being followed for the weeding. He further submits that the Commissioners’ report has also raised several important issues to be taken care of by the Forest Department for proper management of the forests. A statement filed by the second respondent is relevant. Paragraph 2 and 3 are extracted below: “2. It is submitted that Forests are required to be managed as per working plan/working scheme of Forest Division approved by the 1st respondent and felling activities in forests are required to be carried out as per the prescriptions of working plan. The State Governments are required to get the approval of Central Government for the working plans of different Forest Divisions.” 3. The Hon’ble Supreme Court vide order dated 12-12-1996 in W.P.No.202/95 directed that felling of trees in all the forests is to remain suspended except in accordance with the working plans of the State Government as approved by the Central Government. The Hon’ble Supreme Court has also prohibited felling of trees in protected areas as per order dated 14-02-2000 in W.P.No.202/95. In Kerala State, approved working plans in respect of Palakkad, Thenmala, Kozhikode, Thrissur and Munnar Divisions are in force. The Hon’ble Supreme Court has also prohibited felling of trees in protected areas as per order dated 14-02-2000 in W.P.No.202/95. In Kerala State, approved working plans in respect of Palakkad, Thenmala, Kozhikode, Thrissur and Munnar Divisions are in force. The working plan/scheme are approved subject to the conditions of approval. Strict instructions are also given to follow the provisions of the Forest (Conservation) Act, 1980 and the guidelines issued thereunder. The Central Government reserves the right to review, modify or withdraw this approval if any of the conditions of approval are not implemented or amendment to plan is necessitated, keeping in view the provisions of the Forest (Conservation) Act, 1980, guidelines issued thereunder and general instructions issued to the Central Government for the Scientific Management of forests. It is for the 7th respondent to clarify whether the areas referred to in the above original petition comes within any particular management plan. On such information the Central Government can ascertain whether that particular management plan has got approval from the Central Government. On then it is possible for the 1st respondent to find out if there is any violation of Apex Court order dated 12-12-96.” 10. As submitted by the learned Spl. Government Pleader the Forest Management Plans are being prepared with the approval of the Central Government under the National Forest Policy. Looking to the importance of forests and necessity of protecting forests for maintaining ecological balance and protecting environment, proper forest management plans have become more necessary, for which Forest Management plans are prepared. In the petition, the issue which was highlighted was, according to the petitioner, plundering of forest resources. Night weeding of the trees was highlighted even in the Commissioners’ report. 8th respondent was carrying out the project under the permission of the State Government and it is not known whether such process is going on or not. Be as it may, as on date, all management of forests in all divisions including Idukki has to be done in accordance with the Forest Management Plans. As observed above, in the forest area, no non-forest activity is permissible without the prior approval of the Central Government as required under Section 2 of the Forest (Conservation) Act, 1980. Be as it may, as on date, all management of forests in all divisions including Idukki has to be done in accordance with the Forest Management Plans. As observed above, in the forest area, no non-forest activity is permissible without the prior approval of the Central Government as required under Section 2 of the Forest (Conservation) Act, 1980. The Principal Chief Forest Conservator, who is one of the respondents in the petition has to look into the matter and issue appropriate directions and orders for proper implementation of Forest Management Plans and to ensure that all forest activities which are going on in the different categories of forests are in accordance with the Circulars and principles approved by the Forest Department and by the authorised persons. No non-forest activity can be permitted in any of the forest without the approval of the Central Government. Kerala Forest (Vesting and Mangement of Ecologically Fragile Lands) Act, 2003, has already been brought about by the Legislature which takes care of the large Ecologically Fragile Lands of different forests. There is legislative regime for maintaining such ecological fragile lands. Forest Management plans are also contemplated under the Act and rules. 11. In view of the facts as noted above and subsequent events, we are of the view that the apprehensions expressed by the petitioner are taken care of by the Forest Management Plans and the provisions contained in the Forest (Conservation) Act, 1980. Accordingly, we dispose of the petition with a direction to the PrI. Chief Conservator of Forests to ensure that all activities in the Forest should be done in accordance with the Forest Management Plans and in compliance with the Forest (Conservation) Act, 1980. 12. One of the submissions which has been raised by the learned Counsel for the petitioner is regarding pesticides/chemicals which are being used by the 8th respondent to file and affidavit of a qualified chemist in its employment describing the chemical composition of the pesticide-Roban, which according to the 8th respondent has already been brought on record. As noticed above, it is not known ‘as to whether the 8 respondent is proceeding/continuing with its activities. However, we are of the view that even it in any forest area any pesticide/chemical is used by any person, the same should be done only with the approval and permission of the Divisional Forest Officer. As noticed above, it is not known ‘as to whether the 8 respondent is proceeding/continuing with its activities. However, we are of the view that even it in any forest area any pesticide/chemical is used by any person, the same should be done only with the approval and permission of the Divisional Forest Officer. The Chief Conservator of Forests may issue necessary orders in that regard. With the above directions the petition is disposed of. Before parting with the case we would like to observe that the Commissioners appointed by this Court as per order dated 11-04-2001 in CM.P.No.9976 of 2001 have done a commendable job in visiting the difficult terrain and carrying out their inspection. They have taken much pains to collect the data and to submit the report, spending much time amidst their busy schedule in conducting other cases, that too, without accepting any remuneration. The efforts taken by them are highly appreciated and their reports can very well be used by the Forest Department for their inputs.