Kerala High Court
Purushothaman.P vs State Of Kerala on 24 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
WP(C) NO. 12616 OF 2021
PETITIONER/S:
PURUSHOTHAMAN P., AGED 60 YEARS,
S/O. LATE P. N. PARAMESWARAN,
PRESENTLY RESIDING AT 870, SECTOR-8, RK PURAM, NEW DELHI 110022,
AND A RESIDENT OF VELLAPPILLIL, KODUNGALLUR, THRISSUR DISTRICT.
BY ADV. SREEKANTH S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 FOREST DEPARTMENT OF KERALA,
REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 REVENUE DEPARTMENT,
REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
4 MINISTRY OF ENVIRONMENT,
FORREST AND CLIMATE CHANGE, GOVERNMENT OF INDIA,
VAYU BLOG, 2ND FLOOR, INDIRA, PARIYAVARAN BHAVAN,
ALIGANJ, JORBAGH ROAD, NEW DELHI-110 003,
REPRESENTED BY ITS DIRECTOR GENERAL OF FOREST.
5 CENTRAL BUREAU OF INVESTIGATION (CBI),
CBI HEADQUARTERS, CGO COMPLEX, NEAR JAWAHARLAL NEHRU STADIUM,
NEW DELHI-110013, REPRESENTED BY ITS DIRECTOR GENERAL.
R1 TO R3 BY ADVS. SRI. K. GOPALAKRISHNA KURUP, ADVOCATE GENERAL
SRI. SANDESH RAJA,
SPECIAL GOVERNMENT PLEADER FOR FOREST
WP(C):12616/2021 :: 2 ::
SRI. V. MANU, SENIOR GOVERNMENT PLEADER
R4 & R5 BY ADVS. SRI. P. VIJAYAKUMAR, ASG,
SRI. JAGADEESH LAKSHMANAN, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C):12616/2021 :: 3 ::
"C.R"
JUDGMENT
Dated this the 24th day of June, 2021
S. Manikumar, CJ
Instant public interest writ petition is filed by the petitioner for
the following reliefs:
(i) To issue a writ of mandamus or any other appropriate
writ, order or direction, to depute Central Bureau of
Investigation or any other appropriate Central
Investigating Agency, to find out the real culprits
involved in the forest robbery case, recently happened
in the State of Kerala.
(ii) To issue a writ of mandamus or any other appropriate
writ, order, or direction, commanding the respondents
that all enquiries conducted by the Government should
be under the supervision of this Court in this matter.
(iii) To issue a writ of mandamus or any appropriate writ,
order or direction, commanding the 4th respondent,
Ministry of Environment, Forest & Climate Change,
Government of India, New Delhi, represented by its
Director General of Forest, to investigate the matter
and take appropriate action.
2. Short facts leading to the filing of this writ petition are,
petitioner, claiming to be a senior freelance journalist and a political
WP(C):12616/2021 :: 4 ::
party worker, has preferred this Public Interest Litigation, with the
objective of safeguarding the Constitutional rights of the people, since
he had faced a fraudulent act and violation of public interest by
respondent Nos.1 to 3, viz., State of Kerala, represented by its Principal
Secretary; Forest Department of Kerala, represented by its Secretary;
and Revenue Department, represented by its Secretary, Government
Secretariat, Thiruvananthapuram respectively.
3. Petitioner has further stated that across the State, trees grown
on private lands, have been cut and removed for commercial purposes
over the past year, due to a controversial order, being used as a cover by
the powerful timber mafia. Petitioner has alleged that a section of
revenue, forest officials, and politicians of the ruling party, are
conspiring with the timber mafia and they have used the lockdown,
following the COVID-19 pandemic, as an additional cover, to cut and
transport valuable trees from private lands. Referring to Article 51-A(g)
of the Constitution of India, he submitted that it is the fundamental duty
to protect and preserve forests, lakes and rivers, and to have compassion
for every living being. According to him, the phrase "living being" can
be interpreted to include trees as well.
4. Petitioner has further stated that Kerala witnessed a large-scale
WP(C):12616/2021 :: 5 ::
felling of protected trees from private land, based on an amendment in
the Kerala Forest [Prohibition of Felling of Trees Standing on Land
Temporarily or Permanently Assigned] Rules, 1995, which permitted the
private land owners to chop all reserved trees, except sandalwood. The
order was heavily criticized. The amendment could facilitate cutting and
removing of thousands of trees in Kerala.
5. Petitioner has further stated that Kerala's Forest Department
officials raided a timber mill at Perumbavoor in Ernakulam District and
seized rosewood worth more than Rs.50 lakhs. It was being transported
illegally from the environmentally fragile Mutti South Village in the
northern hill district of Wayanad. Later, officials seized two truckloads
of teak from Pulakkod near Chelakkara in Trissur District and in another
incident in Marayoor, Idukki, found cut and transport even sandalwood
trees from private lands.
6. Petitioner has further stated that from reliable sources, he came
to understand that timber worth at least rupees hundred crores has been
felled and removed in the last one year and this issue is enquired by a
team of District Forest Officers [DFO] of the Forest Department. He has
also stated that the matter is being enquired into by the Government, in
which, the Government is also involved. He apprehend that there will
WP(C):12616/2021 :: 6 ::
not be a just and fair investigation would happen. The Government and
its Subordinate Departments would try to protect their interests, and
therefore, this court's intervention is highly necessary, in order to
depute a Central Investigation Agency like CBI, to find out the real
culprits or all enquiries conducting by the Government should be under
the supervision of this Court in this matter. Hence, this writ petition.
7. Supporting the reliefs sought for, petitioner has contended that
other than Idukki and Wayanad, districts such as Thrissur, Ernakulam,
Palakkad, Malappuram, and Pathanamthitta, have witnessed felling of
trees during this one year period and the Government is facilitating
cutting and illegal transportation of even rare species of trees. He has
also contended that according to the Forest Department, State of Kerala
has 13,000 spots, which are vulnerable to flood and landslides, and
therefore, cutting of trees would indiscriminately affect the balance of
the local environment.
8. Petitioner has further contended that if the State Departments
or State Investigating Agencies conduct investigations, there would be a
chance of tampering evidences and other related documents. The
timber traders might have been sold the timbers in other States or
exported to different countries.
WP(C):12616/2021 :: 7 ::
9. Per contra, Mr. K. Gopalakrishna Kurup, learned Advocate
General, submitted that instant writ petition with omnibus prayers for
transfer of investigation to Central Investigating Agency, is not
maintainable, either in law or on facts.
10. Inviting the attention of this Court to paragraph (11) of the
statement of facts filed along with the writ petition, learned Advocate
General submitted that the sole averments contained therein would not
even constitute facts sufficient for transfer of investigation already
taken up by the police in the State.
11. Referring to Exhibit-P1 Government order dated 24.10.2020
issued by the Principal Secretary to the Government, Mr. K.
Gopalakrishna Kurup, learned Advocate General, submitted that
Exhibit-P1 order, now stands withdrawn and a fresh Government order
has been issued in February, 2021. He, therefore, submitted that Exhibit-
P1 order is no longer in force.
12. Referring to the Kerala Private Forests (Vesting and
Assignment) (Amendment) Ordinance, 2021, learned Advocate General
submitted that the ordinance has nothing to do with Exhibit-P1 order
dated 24.10.2020. He also submitted that no reliance can be made to
Exhibit-P6 photograph, alleged to have been taken from a social media.
WP(C):12616/2021 :: 8 ::
Allegation of influence is bald.
13. Inviting our attention also to Exhibit-P7 dated 12.02.2020,
learned Advocate General submitted that the said document is only a
letter of an Ex-MLA, Kalpetta, Wayanad, forwarding a representation
submitted by one Mr. T. M. Baby, President, Wayanad District Revenue
Patta Land Protection Samithi, to the Hon'ble the Chief Minister, and
there is nothing in that letter indicating any illegality, alleged to have
been committed. Thus, the learned Advocate General submitted that
Exhibit-P7 letter is not a material document indicating any illegality in
felling of reserved trees in private lands.
14. Learned Advocate General further submitted that what could
be deduced from Exhibit-P7 letter dated 12.02.2020 is that it is a request
for issuance of a special order for felling reserved trees standing in the
revenue patta land, in Wayanad district, as a special package, and
nothing more.
15. Learned Advocate General also submitted that the petitioner
has not made any efforts to find out, as to how many criminal cases are
registered and how many of them have been arrayed as accused, the
stage of investigation, and that, with vague allegations, sought for
transfer of investigation to Central Bureau of Investigation.
WP(C):12616/2021 :: 9 ::
16. He further submitted that as per the rules in force in Kerala,
about 110 O.Rs. have been registered, 600 cubic metres of timber has
been seized, and action is being taken against those involved in illegal
felling. Government have issued orders constituting Special
Investigation Teams with the presence of Senior Police Officers and the
investigation is under process.
17. Learned Advocate General further submitted that there is
constant monitoring of the investigation, studies; there is nothing to
hide, cases have been registered, and timbers seized. Except bad
averments in paragraph (11) of the statement of facts, there is nothing
on record, warranting change of investigation.
18. Relying on the decision of a Hon'ble Division Bench of this
Court in Mythri Residents Association v. Secretary, Tripunithura
Municipality and Others reported in ILR 2019 (4) Ker. 839, wherein the
legal principles for filing a public interest writ petition have been
summarised, learned Advocate General submitted that instant writ
petition lacks bona fides, credentials, and does not satisfy the
requirements of Public Interest Litigation, and thus, deserves to be
dismissed with costs.
19. By way of reply, learned counsel for the petitioner submitted
WP(C):12616/2021 :: 10 ::
that the grievance of the petitioner is that there is misuse of power by
the forest, as well as revenue officials, prime accused are let off, and
therefore, he requires change of investigation.
20. Heard learned counsel for the parties and perused the
pleadings and material on record.
21. Order dated 24.10.2020, issued by the Principal Secretary for
and on behalf of Government of Kerala (Exhibit-P1) is extracted below:
"Government of Kerala
Abstract
Issuing order giving instructions regarding felling of
reserved trees (except sandalwood in the patta land under
the Kerala Land Assignment Rules, 1964
-------------------------------------------------------------------------
Revenue (U) Department
G.O.(MS) No.261/2020/Rev.
Dated, Thiruvananthapuram, 24/10/2020
-------------------------------------------------------------------------
Ref:- (1) G.O.(P) No.60/2017/Rev. dated 17.08.2017
(2) Circular No. Rev-U3/187/2019-Revenue dated
11.03.2020.
ORDER
Order under Reference (1) giving the right to the
farmers to cut down the trees planted by the farmers and
voluntarily uprooted on the allotted land as per Kerala
Land Assignment Rules, 1964.
Due to the various misunderstandings and
ambiguities in the matter, on 11.3.2020 as per Reference (2)
the tenants planted on the leased land and retained the
leased land and retained the leasehold land are entitled to
WP(C):12616/2021 :: 11 ::
all the trees except sandalwood. It was also suggested that
it should not be considered from 17.8.2017 onwards.
The Government noted that there was still confusion
in the matter and the Government examined the matter in
detail. The condition under Rule 10(3) of Kerala Land
Assignment Rules, 1964 is that the person who obtained
lease has to remit the price of some standing trees in the
land at the time of assigning the land. Clause 1 of the said
provisions Appendix III of Part A stipulates that if the land
was in the possession of the occupier or their predecessor
before the allotment, the price of the trees mentioned in
the said deed is not payable.
The condition Rule 22 of the Kerala Preservation of
Trees Act, 186 states that after the enactment of the said
Act to cut and remove the trees standing on the
Government land during the time of assigning the consent
of the Authorised Officer is required. Hence, the farmers
need not obtain consent to cut and remove trees planted or
volunteered uprooted in the leased land after the
enactment of the Kerala Preservation of Trees Act, 1980,
under Rule 22.
Section 3 of the Promotion of Tree Growth Act, 2005
stipulates that the owner of the land should plant trees on
non-forest land. Section 6 of the Act stipulates that the
owners of non-forest area, irrespective of any other law,
have the right to cut down all trees except sandalwood on
the trees planted on the land.
WP(C):12616/2021 :: 12 ::
In the above case, under the existing rules and
regulations, it has been clarified that the farmers have the
right to all the trees except the sandalwood which was
planted, cultivated and trees reserved by payment of the
Tree Value standing on the land allotted under the 1964
Act and such trees can be cut down by them without any
special permission. Strict action will be taken against such
officials for passing or directly obstructing orders in such a
manner as to obstruct the felling of such trees.
As per order of the Governor
Dr. A. Jayathilak, IAS,
Principal Secretary"
22. Gazette Notification dated 10.02.2021 issued by the
Government reads thus:
"GOVERNMENT OF KERALA
Law (Legislation-G) Department
NOTIFICATION
No. 3751/Leg.G1/2020/Law 10th February, 2021
Dated, Thiruvananthapuram 28th Makaram, 1196
21 st Magha, 1942
The following Ordinance promulgated by the
Governor of Kerala on the 9th day of February, 2021 is
hereby published for general information.
By order of the Governor,
ARAVINTHA BABU P.K.,
Law Secretary."
WP(C):12616/2021 :: 13 ::
"ORDINANCE No. 30 OF 2021
THE KERALA PRIVATE FORESTS (VESTING AND
ASSIGNMENT) (AMENDMENT) ORDINANCE, 2021
Promulgated by the Governor of Kerala in the
Seventy-second Year of the Republic of India.
AN
ORDINANCE
further to amend the Kerala Private Forest (Vesting and
Assignment)Act, 1971.
Preamble.- WHEREAS, the Kerala Private Forests
(Vesting and Assignment) (Amendment) Ordinance, 2020
(35 of 2020) was promulgated by the Governor of Kerala
on the 22nd day of May, 2020
AND WHEREAS, A Bill to replace the said Ordinance
by an Act of the State Legislature could not be introduced
in, and passed by, the Legislative Assembly of the State of
Kerala, during its session which commenced on the 24 th
day of August, 2020 and ended on the same day;
AND WHEREAS, in order to keep alive the
provisions of the said Ordinance, the Kerala Private
Forests (Vesting and Assignment) (Amendment)
Ordinance, 2020 (59 of 2020) was promulgated by the
Governor of Kerala on the 26th day of September, 2020;
AND WHEREAS, a Bill to replace the said Ordinance
by an Act of the State Legislature could not be introduced
in, and passed by, the Legislative Assembly of the State of
Kerala, during its session which commenced on the 31 st
day of December, 2020 and ended on the same day;
AND WHEREAS, a Bill to replace the said Ordinance
by an Act of the State Legislature could not be introduced
in, and passed by, the Legislative Assembly of the State of
Kerala, during its session which commenced on the 8 th day
of January, 2021 and ended on the 22nd day of
January, 2021;
WP(C):12616/2021 :: 14 ::
AND WHEREAS, under sub-clause (a) of clause (2) of
Article 213 of the Constitution of India, the said Ordinance
will cease to operate on the 11th day of February, 2021;
AND WHEREAS, difficulties will arise if the
provisions of the said Ordinance are not kept alive;
AND WHEREAS, the Legislative Assembly of the
State of Kerala is not in session and the Governor of
Kerala is satisfied that circumstances exist which render it
necessary for him to take immediate action;
Now, THEREFORE, in exercise of the powers
conferred by clause (1) of Article 213 of the Constitution
of India. the Governor of Kerala is pleased to promulgate
the following Ordinance:--
1. Short title and commencement.-- (1) This Ordinance
may be called the Kerala Private Forests (Vesting and
Assignment) (Amendment) Ordinance, 2021.
(2) It shall be deemed to have come into force on
the 10 day of May, 1971.
th
2. Act 26 of 1971 to be temporarily amended.- During the
period of operation of this Ordinance, the Kerala Private
Forests (Vesting and Assignment) Act, 1971 (26 of 1971)
(hereinafter referred to as the Principal Act), shall have
effect subject to the amendment specified in Section 3.
3. Amendment of section 3.- In section 3 of the
principal Act, after sub-section (4), the following sub-
section shall be inserted, namely:-
"(5) Notwithstanding anything contained in the
Kerala Land Reforms Act, 1963 (1 of 1964) or in any
other law for the time being in force or in any
judgment, decree or order of any court or tribunal,
a certificate of purchase issued under sub-section
(1) of section 72 K of the said Act, may be a piece of
evidence but not a conclusive proof for the
purpose of this Act for proving that the land held
by a person is under the personal cultivation as on
the date of commencement of this Act."
WP(C):12616/2021 :: 15 ::
4. Repeal and saving.---(1) The Kerala Private Forests
(Vesting and Assignment) (Amendment) Ordinance, 2020
(59 of 2020) is hereby repealed.
(2) Notwithstanding such repeal, anything done or
deemed to have been done or any action taken or deemed
to have been taken under the principal Act as amended by
the said Ordinance shall be deemed to have been done or
taken under the principal Act as amended by this
Ordinance.
ARIF MOHAMMED KHAN,
GOVERNOR"
23. At the outset, we would like to point out that in paragraph (2)
of the statement of facts, petitioner has averred that he has not filed a
similar Writ Petition/PIL or any other petition before this Court or any
other Court/s involving the subject matter of this petition, which is
pending or has been disposed of. He has also averred that he has has not
filed any other public interest litigation before any other High Court or
Hon'ble Supreme Court. However, in the affidavit sworn to by him, it is
stated as follows:
"I have earlier filed W.P.(C) No.12297 of 2021 before a
Single Bench of this Hon'ble Court and at the time of
admission/hearing, when the case was taken up for
admission, my counsel lost the internet connection and
was not in a position to appear for the case, in time. In
the absence of my counsel, the Court held that the writ
petition is defective, firstly. Secondly, Section 146 A of
the Kerala High Court Rules has not been complied with
and thirdly, the Central Agency has not been impleaded
as a party to this writ petition. In the said circumstances,
this writ petition is liable to be returned for curing the
defects. I am not pressing the said writ petition and
WP(C):12616/2021 :: 16 ::
obeying the instruction of this Court, filing this public
interest litigation."
24. Material on record discloses that seeking the very same reliefs
in the present writ petition, petitioner has earlier filed W.P.(C) No.12297
of 2021 and by order dated 16 th June, 2021, a learned Single Judge of this
Court has noted some defects and returned the writ petition for curing
defects, in accordance with the Kerala High Court Rules. Said writ
petition is pending.
25. Petitioner seems to have filed the instant writ petition on the
basis of some newspaper reports (Exhibits-P3 to P5), and Exhibit-P6
photograph, circulated through social media. That apart, there are no
materials to indicate as to whether, the petitioner has taken any steps to
obtain necessary documents from the department, in support of the
contentions made.
26. Before adverting to the rival contentions, let us consider the
principles of law, summarised in the matter of Public Interest Litigation.
27. In Guruvayur Devaswom Managing Committee & Anr. v.
C.K.Rajan & Others reported in (2003) 7 SCC 546, the Hon'ble Supreme
Court has summarised the principles regarding filing of a Public Interest
Litigation, and they are extracted hereunder:
WP(C):12616/2021 :: 17 ::
"(i) The Court in exercise of powers under Article 32 and
Article 226 of the Constitution of India can entertain a
petition filed by any interested person in the welfare of the
people who is in a disadvantaged position and, thus, not in a
position to knock the doors of the Court.
The Court is constitutionally bound to protect the
fundamental rights of such disadvantaged people so as to
direct the State to fulfill its constitutional promises. [See S.P.
Gupta v. Union of India, People's Union for Democratic
Rights v. Union of India, (1982) 2 SCC 494, Bandhua Mukti
Morcha v. Union of India and Others, (1984) 3 SCC 161, and
Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)]
(ii) Issues of public importance, enforcement of fundamental
rights of a large number of the public vis-a-vis the
constitutional duties and functions of the State, if raised, the
Court treats a letter or a telegram as a public interest
litigation upon relaxing procedural laws as also the law
relating to pleadings. [See Charles Sobraj v. Supdt., Central
Jail, Tihar, New Delhi, (1978) 4 SCC 104, and Hussainara
Khatoon and Others v. Home Secretary, State of Bihar
(1980) 1 SCC 81)]
(iii) Whenever injustice is meted out to a large number of
people, the Court will not hesitate in stepping in. Articles 14
and 21 of the Constitution of India as well as the
International Conventions on Human Rights provide for
reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v.
Rani Jethmalani (AIR 1979 SCC 468), it was held:
WP(C):12616/2021 :: 18 ::
"2. Assurance of a fair trial is the first imperative of
the dispensation of justice and the central criterion
for the court to consider when a motion for transfer is
made is not the hypersensitivity or relative
convenience of a party or easy availability of legal
services or like mini-grievances. Something more
substantial, more compelling, more imperilling, from
the point of view of public justice and its attendant
environment, is necessitous if the court is to exercise
its power of transfer. This is the cardinal principle
although the circumstances may be myriad and vary
from case to case. We have to test the petitioner's
grounds on this touchstone bearing in mind the rule
that normally the complainant has the right to choose
any court having jurisdiction and the accused cannot
dictate where the case against him should be tried.
Even so, the process of justice should not harass the
parties and from that angle the court may weigh the
circumstances." (See also Dwarka Prasad Agarwal (D)
By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5
SCALE 138)
(iv) The common rule of locus standi is relaxed so as to
enable the Court to look into the grievances complained on
behalf of the poor, the depraved (sic), the illiterate and the
disabled who cannot vindicate the legal wrong or legal injury
caused to them for any violation of any constitutional or
legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v.
Union of India, (AIR 1981 SC 344), S.P. Gupta (supra), People's
Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v.
State of Bihar [(1987) 1 SCC 378] and BALCO Employees' Union
(Regd.) v. Union of India and Others [(2002) 2 SCC 333].
(v) When the Court is prima facie satisfied about variation of
any constitutional right of a group of people belonging to the
disadvantaged category, it may not allow the State or the
WP(C):12616/2021 :: 19 ::
Government from raising the question as to the
maintainability of the petition.
(vi) Although procedural laws apply to PIL cases but the
question as to whether the principles of res judicata or
principles analogous thereto would apply depends on the
nature of the petition as also facts and circumstances of the
case. [See Rural Litigation and Entitlement Kendra v.
State of U.P., 1989 Supp (1) SCC 504 and Forward
Construction Co. v. Prabhat Mandal (Regd.), Andheri and
others (1986) 1 SCC 100]
(vii) The dispute between two warring groups purely in the
realm of private law would not be allowed to be agitated as a
public interest litigation. (See Ramsharan Autyanuprasi v.
Union of India and Others 1989 Supp (1) SCC 251)
(viii) However, in an appropriate case, although the
petitioner might have moved a court in his private interest
and for redressal of personal grievances, the Court in
furtherance of the public interest may treat it necessary to
enquire into the state of affairs of the subject of litigation in
the interest of justice. (See Shivajirao Nilangekar Patil v.
Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).
(ix) The Court in special situations may appoint a
Commission, or other bodies for the purpose of investigating
into the allegations and finding out facts. It may also direct
management of a public institution taken over by such
Committee. (See Bandhua Mukti Morchai, Rakesh Chandra
Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P.
WP(C):12616/2021 :: 20 ::
Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC
718). In Sachidanand Panday and Another v. State of West
Bengal and others [(1987) 2 SCC 295], this Court held,-
"61. It is only when courts are apprised of
gross violation of fundamental rights by a group or a
class action on when basic human rights are invaded
or when there are complaints of such acts as shock
the judicial conscience that the courts, especially this
Court, should leave aside procedural shackles and
hear such petitions and extent its jurisdiction under
all available provisions for remedying the hardships
and miseries of the need, the underdog and the
neglected. I will be second to none in extending help
when such is required. But this does mean that the
doors of this Court are always open for anyone to
walk in. It is necessary to have some self-imposed
restraint on public interest litigants."
28. This Court, in an unreported judgment dated 30.06.2020 in
B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C) No.12109
of 2020], at paragraph 45, held as under:
"45. Placing reliance on the above decisions, the learned
Senior Government Pleader submitted that a public
interest writ petition which lacks bona fides, lack of
particulars satisfying the requirements of a PIL, deserves to
be dismissed with costs. Having regard to decisions
considered in Mythri Residents Association v. Secretary,
Tripunithura Municipality and Others, [2019 KHC 832], it has
been summarised by the journal thus:
"(1) The Courts must encourage genuine and bona fide
PIL and effectively discourage and curb the PIL filed for
extraneous considerations.
WP(C):12616/2021 :: 21 ::
(2) Instead of every individual Judge devising his own
procedure for dealing with the public interest litigation,
it would be appropriate for each High Court to properly
formulate rules for encouraging the genuine PIL and
discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have
not yet framed the rules, should frame the rules within
three months. The Registrar General of each High Court is
directed to ensure that a copy of the rules prepared by
the High Court is sent to the Secretary General of this
Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of
the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding
the correctness of the contents of the petition before
entertaining a PIL.
(5) The Courts should be fully satisfied that substantial
public interest is involved before entertaining the
petition.
(6) The Courts should ensure that the petition which
involves larger public interest, gravity and urgency must
be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure
that the PIL is aimed at redressal of genuine public harm
or public injury. The Court should also ensure that there
is no personal gain, private motive or oblique motive
behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed
by busybodies for extraneous and ulterior motives must
be discouraged by imposing exemplary costs or by
adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous
considerations.
(9) The misuse of public interest litigation is a serious
matter of concern for the judicial process.
(10) Both this Court and the High Courts are flooded with
litigations and are burdened by arrears.
(11) Frivolous or motivated petitions, ostensibly invoking
WP(C):12616/2021 :: 22 ::
the public interest detract from the time and attention
which courts must devote to genuine causes.
(12) This Court has a long list of pending cases where the
personal liberty of citizens is involved.
(13) Those who await trial or the resolution of appeals
against orders of conviction have a legitimate
expectation of early justice.
(14) It is a travesty of justice for the resources of the legal
system to be consumed by an avalanche of misdirected
petitions purportedly filed in the public interest which,
upon due scrutiny, are found to promote a personal,
business or political agenda.
(15) This has spawned an industry of vested interests in
litigation.
(16) There is a grave danger that if this state of affairs is
allowed to continue, it would seriously denude the
efficacy of the judicial system by detracting from the
ability of the court to devote its time and resources to
cases which legitimately require attention.
(17) Worse still, such petitions pose a grave danger to the
credibility of the judicial process.
(18) This has the propensity of endangering the
credibility of other institutions and undermining public
faith in democracy and the rule of law.
(19) This will happen when the agency of the court is
utilised to settle extra-judicial scores. Business rivalries
have to be resolved in a competitive market for goods and
services.
(20) Political rivalries have to be resolved in the great hall
of democracy when the electorate votes its
representatives in and out of office.
(21) Courts resolve disputes about legal rights and
entitlements.
(22) Courts protect the rule of law.
(23) There is a danger that the judicial process will be
reduced to a charade, if disputes beyond the ken of legal
parameters occupy the judicial space."
WP(C):12616/2021 :: 23 ::
29. In the backdrop of the above legal principles of law on Public
Interest Litigation, we shall consider as to whether, the petitioner has
made out a case, for issuance of mandamus as prayed for. Except stating
that he is a freelance journalist and a political party worker, petitioner
has not produced any material to substantiate the same.
30. One of the main contentions made in the statement of facts, in
support of the prayers sought for, is extracted hereunder:
"The Government and its Subordinate Departments
definitely will try to protect their interested persons. In
this juncture, this Court's intervention is highly necessary
and to depute a Central Investigation Agency like CBI to
find out the real culprits to come before the society or all
enquiries conducted by the Government should be under
the supervision of this Court in this matter. The timber
traders might have been sold the timbers in other States or
export to different foreign countries. As a social
responsible Keralite, journalist, and a resident of
Kodungallur in Thrissur district and as per Article 51-A(g)
of the fundamental right of the Constitution, i.e., it is the
fundamental duty of every citizen to protect and preserve
forests, lakes and rivers and to have compassion for every
living being. The phrase "living being" can be interpreted
to include trees as well. Hence, this Hon'ble Court has
jurisdiction to interfere in this matter and the petitioner is
filing this writ petition."
WP(C):12616/2021 :: 24 ::
31. Though Mr. Sreekanth S. Nair, learned counsel for the
petitioner, submitted that there is involvement of politicians and forest,
as well as revenue officials, except bad averments in paragraphs (4) and
(11) of the statement of facts, no document has been produced by the
petitioner, to substantiate the said allegation.
32. Per contra, as rightly contended by the learned Advocate
General, though the petitioner has alleged large scale felling of reserved
trees in private lands, since March, 2020, and involvement of a section of
revenue and forest officials, and also politicians of the ruling party,
conspiring with the timber mafia, there is absolutely no material to
indicate that who are all the revenue and forest officials alleged to have
been involved in the illegal felling of reserved trees in private lands.
33. Perusal of the statement of facts filed along with the writ
petition shows that the petitioner has, inter alia, relied on Exhibits-P3 to
P5 newspaper reports, stated to have been published in the Times of
India dailies dated 7.6.2021, 14.06.2021, and Kaumudi Online dated,
13.06.2021, to substantiate his allegation of illegal felling of reserved
trees in private lands.
34. On the aspect of maintainability of a public interest writ
petition, on the basis of newspaper reports, in Mythri Residents
WP(C):12616/2021 :: 25 ::
Association's case (cited supra), after considering a catena of decisions of
the Hon'ble Apex Court, this Court dismissed the writ petition. Relevant
portions of the said decision read thus:
"(viii) On the aspect of a Public Interest Litigation purely based
on newspaper report, in Vikas Vashishth v. Allahabad High
Court reported in (2004) 13 SCC 485, the Hon'ble Supreme Court
held as under:
"At the very outset, we put it to the petitioner
that a bare perusal of the petition shows that it is
based entirely on newspaper reports and asked him
whether before filing the petition he has taken care to
verify the facts personally. His answer is in the
negative. In the writ petition all the 21 High Courts
have been included as respondents and Union of India
has also been impleaded as the 22nd respondent. We
asked the petitioner what has provoked him to
implead all the High Courts as respondents and he
states that it is his apprehension that similar
incidents may occur in other High Courts though
there is no factual foundation for such appreciation.
5. After affording the full opportunity of
hearing, we are satisfied that what purports to have
been filed as a public interest litigation is nothing
more than a "publicity interest litigation". It is writ
large that it has been filed without any effort at
verifying the facts by the petitioner personally."
(ix) In Rohit Pandey v. Union of India reported in (2005) 13 SCC
702, the Hon'ble Apex Court held as under:
"1. This petition purporting to be in public interest
has been filed by a member of the legal fraternity
seeking directions against the respondents to hand
over the investigation of the case pertaining to
recovery of light machine gun, which is said to have
been stolen from the army according to reports
WP(C):12616/2021 :: 26 ::
published in two newspapers, to the Central Bureau of
Investigation for fair investigation to ensure that the
real culprits who are behind such theft of army arms
and ammunition endangering the integrity and
sovereignty of the country may be brought to book
and action may be taken against them in accordance
with law. The only basis for the petitioner coming to
this Court are two newspaper reports dated 25-1-
2004, and the other dated 12-2-2004. This petition was
immediately filed on 16-2-2004 after the aforesaid
second newspaper report appeared. On enquiry from
the learned counsel, we have learnt that the
petitioner is a young advocate having been in practice
for a year or two. The Union of India, the State of
Uttar Pradesh and the Chief Minister of the State of
Uttar Pradesh, have been arrayed as party
respondents. In the newspaper reports, there is no
allegation either against the Union of India or against
the Chief Minister.
2. We expect that when such a petition is filed in
public interest and particularly by a member of the
legal profession, it would be filed with all seriousness
and after doing the necessary homework and enquiry.
If the petitioner is so public-spirited at such a young
age as is so professed, the least one would expect is
that an enquiry would be made from the authorities
concerned as to the nature of investigation which
may be going on before filing a petition that the
investigation be conducted by the Central Bureau of
Investigation. Admittedly, no such measures were
taken by the petitioner. There is nothing in the
petition as to what, in fact, prompted the petitioner
to approach this Court within two-three days of the
second publication dated 12-2-2004, in the newspaper
Amar Ujala. Further, the State of Uttar Pradesh had
filed its affidavit a year earlier i.e. on 7-10-2004,
placing on record the steps taken against the accused
persons, including the submission of the charge-sheet
before the appropriate court. Despite one year having
elapsed after the filing of the affidavit by the Special
Secretary to the Home Department of the
WP(C):12616/2021 :: 27 ::
Government of Uttar Pradesh, nothing seems to have
been done by the petitioner. The petitioner has not
even controverted what is stated in the affidavit.
Ordinarily, we would have dismissed such a
misconceived petition with exemplary costs but
considering that the petitioner is a young advocate,
we feel that the ends of justice would be met and the
necessary message conveyed if a token cost of rupees
one thousand is imposed on the petitioner.
xx xxx xxxxx
8. In the light of the decisions and discussion, we are of the
view that instant writ petition styled as public interest litigation
does not satisfy the requirements of PIL. Hence, the same is
dismissed. However, learned counsel for the petitioner seeks
liberty to file a fresh writ petition with supporting documents.
Liberty is granted as prayed for."
35. That apart, in Holicow Pictures Pvt. Ltd. v. Prem Chandra
Mishra and Ors. reported in (2007) 14 SCC 281, the Hon'ble Apex Court
held as under:
"18. Courts must do justice by promotion of good
faith, and prevent law from crafty invasions. Courts
must maintain the social balance by interfering where
necessary for the sake of justice and refuse to
interfere where it is against the social interest and
public good. (See State of Maharashtra v. Prabhu
(1995) ILLJ 622 SC, and Andhra Pradesh State
Financial Corporation v. GAR Re-Rolling Mills and Anr.
[1994] 1 SCR 857. No litigant has a right to unlimited
draught on the Court time and public money in order
to get his affairs settled in the manner as he wishes.
Easy access to justice should not be misused as a
licence to file misconceived and frivolous petitions.
WP(C):12616/2021 :: 28 ::
[See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ
3983)]. Today people rush to Courts to file cases in
profusion under this attractive name of public
interest. They must inspire confidence in Courts and
among the public.
19. As noted supra, a time has come to weed out the
petitions, which though titled as public interest
litigations are in essence something else. It is
shocking to note that Courts are flooded with large
number of so called public interest litigations where
even a minuscule percentage can legitimately be
called as public interest litigations. Though the
parameters of public interest litigation have been
indicated by this Court in large number of cases, yet
unmindful of the real intentions and objectives,
Courts are entertaining such petitions and wasting
valuable judicial time which, as noted above, could be
otherwise utilized for disposal of genuine cases. It is
also noticed that petitions are based on newspaper
reports without any attempt to verify their
authenticity. As observed by this Court in several
cases newspaper reports do not constitute evidence. A
petition based on unconfirmed news reports, without
verifying their authenticity should not normally be
entertained. As noted above, such petitions do not
provide any basis for verifying the correctness of
statements made and information given in the
petition. It would be desirable for the Courts to filter
out the frivolous petitions and dismiss them with
costs as afore-stated so that the message goes in the
right direction that petitions filed with oblique
motive do not have the approval of the Courts."
36. As rightly contended by the learned Advocate General,
Exhibit-P1 order dated 24.10.2020 issued by the Principal Secretary to
the Government, is stated to have been withdrawn; Exhibit-P2 is only an
ordinance relating to vesting of private forests and assignment, and it
WP(C):12616/2021 :: 29 ::
has nothing to do with the alleged illegal felling of reserved trees in
private lands; Exhibit-P6 is a document stated to have been obtained
from the social media, and nothing can be inferred as regards the
influence of any prime accused, in the matter of felling of reserved trees
in private lands.
37. Going through Exhibit-P7, we find that it is a letter of an Ex-
MLA, Kalpetta, Wayanad district, forwarding a representation submitted
by one Mr. T.M. Baby, President, Wayanad District Revenue Patta land
Protection Samithi, to consider a request for issuance of special order
regarding felling of reserved trees standing in the revenue patta land in
Wayanad district, and the letter does not indicate any fraudulent or
illegal activity.
38. According to the learned Advocate General, incidents brought
to the notice of the forest department have been examined and about
110 O.Rs were stated to have been registered in various police stations
across the State of Kerala and 600 cubic metres of timber has been
seized. Government, by issuing orders, have constituted Special
Investigation Teams with Senior Police Officers, to monitor the
investigation. Because of the ambiguity in Exhibit-P1 order dated
24.10.2020, the same sought to have been withdrawn.
WP(C):12616/2021 :: 30 ::
39. On the aspect of transfer of investigation to Central Bureau of
Investigation (CBI), after considering a catena of decisions, a Hon'ble
Division Bench of this Court in Michael Varghese v. Hon'ble Shri
Pinarayi Vijayan [judgment dated 22.07.2020 in W.P.(C) No.14316 of
2020] held as under:
"109. The petitioner has solely relied on the
statement of the Leader of the Opposition and contended
that if it is true, the matter requires investigation. As
such, he has no evidence or material, and that is why he
has prayed for an interim direction, as stated above.
Investigation is the function of the police and writ court
cannot be converted as an investigation agency.
xx xxx xxxxx
111. Remedy under Article 226 of the Constitution
of India is extraordinary. Exercise of power to entertain
a writ petition arises if only the person, who alleges
inaction on the part of the statutory authorities, has no
other alternative and efficacious remedy under the
Statute. True, the Hon'ble Apex Court has also held that
there is no fetters in entertaining a writ petition under
Article 226 of the Constitution of India, whether a person
complains of violation of his fundamental or statutory
right, but at the same time, it should be borne in mind
that if there is an adequate and efficacious remedy
available to such person, to vindicate his grievance, then
the self imposed restraint on the writ court to exercise
WP(C):12616/2021 :: 31 ::
the extraordinary jurisdiction shall be applied and
such person should be relegated to avail the statutory
remedy.
112. Merely because allegations are levelled
against the Hon'ble Chief Minister and others and in as
much as the allegations relate to abuse of power, it
cannot be contended that the nature and magnitude
require issuance of a writ as the only remedy available to
the petitioner. However, intricate the magnitude and
the nature of the offences alleged, the Code of Criminal
Procedure has envisaged a procedure to be followed and,
therefore, the same cannot be given a go-by, and a writ
petition is not the proper remedy.
113. In the light of the decisions of the Hon'ble
Supreme Court as well as this Court, and our conclusion
that no writ of mandamus can be issued, we do not
propose to delve into other rival contentions as to
whether, the State Government could have written to
the Central Government to include the allegations
relating to corruption also.
114. As the writ petition itself is not maintainable,
there is also no need to go into the issue as to whether,
National Investigation Agency while investigating any
Scheduled Offence may also investigate any other
offence which the accused is alleged to have committed,
if the offence is connected with the Scheduled Offence.
Therefore, judged from any angle, we are of the view,
WP(C):12616/2021 :: 32 ::
petitioner has not made out a case for issuance of a writ
of mandamus.
In the result, the writ petition is dismissed. No
costs."
40. Giving due consideration to the rival submissions, material on
record, and the legal principles of law on Public Interest Litigation, we
find that the instant public interest writ petition is bereft of details and
does not satisfy the requirement of a Public Interest Litigation.
41. The averments are vague and we find force in the arguments of
the learned Advocate General. We are of the view that the principles
enunciated in the decisions cited supra would squarely applicable to the
facts of this case.
In the result, writ petition is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
krj
WP(C):12616/2021 :: 33 ::
APPENDIX
PETITIONER'S EXHIBITS:-
Exhibit P1 COPY OF ORDER DATED 24.10.2020 ISSUED BY THE PRINCIPLE
SECRETARY FOR AND ON BEHALF OF THE GOVERNMENT OF KERALA
ALONG WITH ENGLISH TRANSLATION.
Exhibit P2 COPY OF GAZETTE NOTIFICATION DATED 10.2.2021 ISSUED BY THE
GOVERNMENT.
Exhibit P3 COPY OF NEWS REPORT PUBLISHED IN TIMES OF INDIA DATED
07.06.2021.
Exhibit P4 COPY OF NEWS REPORT PUBLISHED IN KAUMUDI ONLINE DATED
13.06.2021.
Exhibit P5 COPY OF NEWS REPORT PUBLISHED IN TIMES OF INDIA DATED
14.06.2021.
Exhibit P6 COPY OF PHOTOGRAPH CIRCULATED THROUGH THE SOCIAL MEDIA.
Exhibit P7 COPY OF LETTER WRITTEN BY AN EX-MLA, KALPETTA, WAYANAD
DISTRICT, ADDRESSING TO THE CHIEF MINISTER OF KERALA, ALONG
WITH ITS ENGLISH TRANSLATION.
RESPONDENTS' EXHIBITS:- 'NIL'
//TRUE COPY//
P.A. TO C.J.
