C.V.Sujai vs The Divisional Forest Officer
2021 Latest Caselaw 33 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

 MONDAY, THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942

                  WP(C).No.15096 OF 2020(J)


PETITIONER:

              C.V.SUJAI, S/O. C.N VIJAYAN,
              AGED 51 YEARS, MANAGING PARTNER,
              'TWINS ARMORY', S.S KOVIL ROAD,
              PADINJARE THAMPANOOR,
              THIRUVANANTHAPURAM PIN 695 001.

              BY ADV. SHRI.M.C.JOHN

RESPONDENTS:

     1        THE DIVISIONAL FOREST OFFICER,
              THIRUVANANTHAPURAM PIN 695 014.

     2        THE DISTRICT COLLECTOR,
              COLLECTORATE,
              THIRUVANANTHAPURAM PIN 695 043.

     3        THE DEPUTY COLLECTOR,
              COLLECTORATE,
              THIRUVANANTHAPURAM PIN 695 043.

          BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 WPC No.15096/2020
                                       :2:




                           N. NAGARESH, J.

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                      W.P.(C) No.15096 of 2020

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               Dated this the 4th day of January, 2021

                            JUDGMENT

~~~~~~~~~

The petitioner seeks to quash Ext.P9 and to direct

the 1st respondent to grant permission to the petitioner for

using the Coupe Road for the purpose mentioned in Ext.P8

application. The petitioner further seeks to restrain the 1 st

respondent and his subordinates from prohibiting the usage

of the Coupe Road by the petitioner for the purpose

mentioned in Ext.P8.

2. The petitioner states that he is the managing

partner of a partnership firm and a licensed dealer in

explosives and detonators. The firm has an explosive

storage at Kovalam. The storage place at Kovalam was

insufficient to store explosive according to the demands and

requirements. The petitioner wanted to construct an WPC No.15096/2020

explosive magazine at a convenient place and safe place.

3. The petitioner therefore purchased 8 Acres and 26

cents land situated in Pangode Village. The said property is

in a very remote area without any habitation. All four sides of

the property are Eucalyptus/Acacia plantations. The Coupe

Road on the western side is the only access to the property.

Before purchasing the property, the petitioner applied for a

No Objection Certificate which was granted by the 1 st

respondent-Divisional Forest Officer, as per Ext.P1. The

property was purchased as per Ext.P2 only after getting the

Ext.P1 NOC.

4. The petitioner made an application before the 2 nd

respondent-District Collector for permit for construction of

explosive magazine and storage. The 2 nd respondent called

for reports from various authorities. The Regional Fire

Officer submitted Ext.P3 report to the 2 nd respondent stating

that he has no objection for the storage of nitrate mixture,

safety fuse and ordinary/electric detonators in the said

property. The Tahsildar, Nedumangad also issued Ext.P4 WPC No.15096/2020

letter to the 2nd respondent recommending that the petitioner

can be given licence. Ext.P4 was issued after a site

inspection.

5. The Deputy Superintendent of Police issued

Ext.P5 letter dated 08.02.2019 attaching a report of the

Station House Officer, Palode Police Station. The said report

stated that the police authorities do not have any objection in

constructing an explosive magazine complying with rules.

Thereupon, the Deputy Collector issued Ext.P6-No Objection

Certificate on 28.02.2019 stating that there is no objection for

granting licence under the Explosive Rules to the petitioner

for storing stipulated quantities of explosives in the premises

in question.

6. The petitioner states that he made an application

to the Petroleum and Explosive Safety Organisation and the

Joint Chief Controller of Explosives approved the site and the

construction of magazine/storehouse, as per Ext.P7.

Thereafter, the petitioner submitted Ext.P8 application to the

1st respondent-Divisional Forest Officer requesting to grant WPC No.15096/2020

permission to use the Coupe Road for transporting

construction materials. The petitioner stated that after the

construction, only Road Van will be used and that too

between 7 a.m. and 5 p.m. without causing any disturbance

to the wildlife. However, to the surprise and predicament of

the petitioner, the 1st respondent declined permission to use

the Coupe road for transporting construction materials and

for transportation of articles by Van.

7. Learned counsel for the petitioner would urge that

he had purchased 8 Acres and 26 Cents of land as per

Ext.P2, solely for the purpose of construction of

magazine/storage of explosives. The property was

purchased only after obtaining no objection from the

Department of Forest, as evidenced by Ext.P1. All statutory

authorities including the Regional Fire Officer, Tahsildars, the

Deputy Superintendent of Police, the District Collector and

the Joint Chief Controller of Explosives, have given their

consent and a no objection for establishment of the

magazine/storage of explosives in the property in question. WPC No.15096/2020

Therefore, the denial of permission to use the Coupe Road

for the purpose of the said magazine/storage by the 1 st

respondent as per Ext.P9, is highly arbitrary and unjustified.

8. The learned counsel for the petitioner further

argued that the said 8 Acres and 26 Cents of land is

surrounded by Eucalyptus/Acacia plantations. The Coupe

Road is passing through a chained gate at its entrance and it

passes through the rubber plantations in the property of the

petitioner. Whenever eucalyptus trees are felled, the logs

are transported in lorries through the Coupe Road only. Even

the predecessors in interest of the petitioner in respect of the

property, were using the Coupe Road for their transportation

requirements. Therefore, the reasons stated in Ext.P9 is

absolutely unfounded, discriminatory and against equity and

fair play.

9. The Special Government Pleader (Forests)

opposed the writ petition filing a statement dated 07.12.2020.

The Government Pleader stated that the property of the

petitioner is encircled by reserve forest and granting WPC No.15096/2020

permission for transportation of heavy load vehicles and

construction of explosive godown will dangerously affect the

surrounding forest and movement of wild animals. The area

is a part of Agastya Mala landscape and Agastya Mala

biosphere reserve. Increasing interference in the biodiversity

rich area will cause havoc to the sensitive ecosystem.

10. The learned Government Pleader further

submitted that the right of way through the Coupe Road

which is completely inside reserve forest, can be given only

for agricultural activities. Usage of this road for non-forest

activities would require prior approval of Central Government

under Section 2 of the Forest Conservation Act, 1980. The

petitioner cannot as a matter of right seek usage of Forest

Road for his private activities and that too for non-forest

activities.

11. Heard learned counsel for the petitioner and the

learned Special Government Pleader (Forests).

12. The statement filed by the learned Government

Pleader (Forests) would show that the Coupe Road through WPC No.15096/2020

which permissions for right to way is claimed by the

petitioner, is a Forest Road. In W.P.(C) No.33526 of 2017, a

learned Single Judge of this Court considered the right of

private citizens to use Forest Road passing through reserve

forest. The learned Single Judge held that a forest area

cannot be used for any commercial activity in view of the

provisions of the Forest Conservation Act as well as the

Kerala Forest Act, 1961. The said writ petition was filed by a

petitioner who was conducting stone crusher unit in the forest

area. Though W.A. No.971 of 2018 was preferred against the

judgment of the learned Single Judge, a Division Bench of

this Court dismissed the writ appeal.

13. In W.P.(C) No.6349 of 2020, a learned Single

Judge of this Court held that vehicular traffic for

transportation of explosives, which is a commercial activity, is

impermissible under the Forest Conservation Act as well as

Kerala Forest Act and therefore the petitioner cannot have

any fundamental right to take vehicles through a reserve

forest contrary to the provisions in those statutes. WPC No.15096/2020

14. In the present case, the fact that the Road is a

Forest Road passing through reserve forest land, is not

under dispute. The statement filed by the respondents show

that the area is identified as high fire prone areas. The

previous fire prone details, forest cover type, forest density,

temperature etc. in the area show that it is in high forest fire

risk zone. Hence, the construction of an explosive godown in

this area will cause havoc to this area as well as adjacent

reserved forest. It is also stated that the place is diverse with

the wild animals like Elephant, Gaur, Sloth Bear, Sambar

Deer, Indian Giant Squirrel, etc. Continuous vehicle

movement through this area is not justifiable.

For all the above reasons, the prayers made by

the petitioner in the writ petition are not liable to be granted.

The writ petition is therefore devoid of any merit and it is

accordingly dismissed.

Sd/-

N. NAGARESH, JUDGE aks/28.12.2020 WPC No.15096/2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOC NO. S-6505/2018 DATED 29-10-2018 ISSUED BY THE FIRST RESPONDENT

EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 19-11-2018 ISSUED BY THE VILLAGE OFFICER

EXHIBIT P3 TRUE COPY OF THE LETTER NO. B-6723/19 DATED 11-01-2019 ISSUED BY THE REGIONAL FIRE OFFICER, TRIVANDRUM

EXHIBIT P3(a) TRUE COPY OF THE LETTER NO. B 6724/19 DATED 11-01-2019 ISSUED BY THE REGIONAL FIRE OFFICER, TRIVANDRUM

EXHIBIT P4 TRUE COPY OF THE VERIFICATION REPORT NO.

B-472/2019 DATED 28-01-2019 M TAHSILDR, NEDUMANGAD

EXHIBIT P5 TRUE COPY OF THE VERIFICATION REPORT DATED 08-02-2019 FROM THE DPTY, SUPERINTENDENT OF POLICE, NEDUMANGAD

EXHIBIT P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.DCTVM/5740/18A-17 DATED 28-02-2019 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P6(a) TRUE COPY OF THE NO OBJECTION CERTIFICATE NO DCTVM/5741/18 A-17 DATED 28-02-2019 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P7 TRUE COPY OF THE APPROVAL NO.

A/E/SC/KL/21/287 (E120328 DATED 08-04- 2019 FROM GOVERNMENT OF INDIA

EXHIBIT P7A TRUE COPY OF THE APPROVAL ORDER NO.

A/E/SC/KL/21/288/(E121115) DATED 08-04- 2019 FROM GOVERNMENT OF INDIA

EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 05-11-

2019 SUBMITTED TO THE FIRST RESPONDENT. WPC No.15096/2020

EXHIBIT P9 TRUE COPY OF THE COMMUNICATION NO. S-

2166/2019 DATED 18-02-2020 ISSUED BY THE FIRST RESPONDENT TO PETITIONER.

EXHIBIT P10 TRUE COPY OF THE REPLY DATED 03.06.2020 ISSUED BY THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS.

EXHIBIT P11 TRUE COPY OF THE SALE DEED NO.1308/2018 DATED 09.11.2018 OF THE SRO, PALODE IN THE NAME OF PETITIONER AND WIFE.

EXHIBIT P12 TRUE COPY OF PHOTOGRAPHS SHOWING THE COUPE ROAD.