[Cites 6, Cited by 0]
Kerala High Court
T.T.Reghu vs The Kerala Forest Department on 23 February, 2026
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WA No.1207, 1254 and 1222 of 2019
2026:KER:15956
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 23RD DAY OF FEBRUARY 2026 / 4TH PHALGUNA, 1947
WA NO. 1207 OF 2019
AGAINST THE JUDGMENT DATED 01.04.2019 IN WP(C) NO.36926
OF 2018 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER
BIBI BABY
AGED 28 YEARS
D/O.THENAN BABY, KODANAD KARA, KODANAD TALUK,
ERNAKULAM DISTRICT.
BY ADV SRI.BABU S. NAIR
RESPONDENTS/RESPONDENTS
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
2 THE SECRETARY, FOREST DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
3 THE SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF WATER RESOURCES, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
4 THE DIVISIONAL FOREST OFFICER,
MALAYATTOOR DIVISION, KODANAD P.O.,
ERNAKULAM DISTRICT, PIN - 683 544.
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5 THE FOREST RANGE OFFICER,
FOREST RANGE OFFICE, NEELEESWARAM P.O., KALADY,
ERNAKULAM DISTRICT, PIN - 683 574.
6 THE CHIEF ENGINEER (IRRIGATION) PROJECT NO.2,
OFFICE OF THE CHIEF ENGINEER, PUBLIC WORKS BUILDINGS,
MUSEUM P.O., THIRUVANANTHAPURAM, PIN - 695 033.
7 THE SUPERINTENDING ENGINEER (IRRIGATION),
OFFICE OF THE SUPERINTENDING ENGINEER, PROJECT
CIRCLE, KOLLIKKAL, PIRAVOM, ERNAKULAM DISTRICT,
PIN - 686 664.
8 THE EXECUTIVE ENGINEER,
EDAMALAYAR IRRIGATION PROJECT, DIVISION NO.1,
ANGAMALY, ERNAKULAM DISTRICT, PIN - 683 585.
BY SRI.T.P SAJAN, SPL. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2026, ALONG WITH WA.1222/2019 AND 1254/2019, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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WA No.1207, 1254 and 1222 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 23RD DAY OF FEBRUARY 2026 / 4TH PHALGUNA, 1947
WA NO. 1222 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 09.04.2019 IN WP(C)
NO.26306 OF 2017 OF HIGH COURT OF KERALA
APPELLANTS/APPELLANT NOS.7,5 AND 3
1 T.T.REGHU,
AGED 40 YEARS
RESIDING AT THOTTIPARAMBIL HOUSE, YOOKALI
CHELACHUVADU,NADUVATTOM.P.O, MALAYATTOOR,PIN-683574.
2 JOSNY,
AGED 35 YEARS
W/O.BIJU,RESIDING AT AVOLIPILLY HOUSE, YOOKALI
CHELACHUVADU,NADUVATTOM.P.O, MALAYATTOOR,PIN-683574.
3 BIJU,
S/O.THANKAPPAN,AGED 40 YEARS
RESIDING AT AVOLIPILLY HOUSE, YOOKALI
CHELACHUVADU,NADUVATTOM.P.O, MALAYATTOOR,PIN-683574.
BY ADV. SRI.BABU PAUL
RESPONDENTS/RESPONDENTS
1 THE KERALA FOREST DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001.
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY TO GOVERNMENT,
THE IRRIGATION DEPARTMENT,GOVERNMENT
SCRETARIAT,THIRUVANANTHAPURAM,PIN-695001.
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3 THE DIVISIONAL FOREST OFFICER,
MALAYATTOOR DIVISION,KODANADU.P.O,
PERUMBHAVOOR.P.O,ERNAKULAM DISTRICT, PIN-683544.
4 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF
KERALA,SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.
5 THE CHIEF EINGINEER,
IRRIGATION DEPARTMENT,PROJECT-2, OFFICER OF THE CHIEF
ENGINEER, THIRUVANANTHAPURAM-695001.
6 THE SUPERTINDENDING ENGINEER,
IRRIGATION DEPARTMENT,OFFICE OF THE SUPERINTENDING
ENGINEER,PROJECT CIRCLE, KOLLICKAL,PIRAVAM-687601,
ERNAKULAM DISTRICT.
7 THE EXECUTIVE ENGINEER,
EDAMALAYAR IRRIGATION PROJECT, DIVISION
NO.1,ANGAMALY,ERNAKULAM DISTRICT-683031.
8 THE ASSISTANT EXECUTIVE ENGINEER,
IIP BHOOTHATHANKETTU SUB DIVISION,
BHOOTHATHANKETTU,KOTHAMANGALAM,
ERNAKULAM DISTRICT-683110.
9 SUBIN GEORGE,
AGED 30 YEARS
S/O.GEORGE,EDATHALA HOUSE,NEELEESWARAM.P.O,KALADY,
ERNAKULAM DISTRICT-683031.
BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
SRI.T.P SAJAN, SPL.GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2026, ALONG WITH WA.1207/2019 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 23RD DAY OF FEBRUARY 2026 / 4TH PHALGUNA, 1947
WA NO. 1254 OF 2019
AGAINST THE JUDGMENT DATED 09.04.2019 IN WP(C) NO.32033
OF 2017 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER
SUBIN GEORGE
AGED 32 YEARS
S/O. GEORGE, EDATHALA HOUSE, NEELEESWARAM P.O.,
KALADY, ERNAKULAM DISTRICT.
BY ADV SRI.M.S.SANDEEP SUDHAKARAN
RESPONDENTS/RESPONDENTS
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
FOREST DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695 001.
2 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
IRRIGATION DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695 001.
3 THE DIVISIONAL FOREST OFFICER,
MALAYATTOOR DIVISION, KODANADU P.O.,
ERNAKULAM DISTRICT, 683 544.
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4 THE CHIEF ENGINEER
IRRIGATION DEPARTMENT, PROJECT-2, OFFICE OF THE CHIEF
ENGINEER, THIRUVANANTHAPURAM 695 001.
5 THE FOREST RANGE OFFICER,
FOREST RANGE OFFICE, NEELEESWARAM P.O., KALADY,
ERNAKULAM DISTRICT 683 574.
6 THE SUPERINTENDING ENGINEER,
IRRIGATION DEPARTMENT, OFFICE OF THE SUPERINTENDING
ENGINEER, PROJECT CIRCLE, KOLLICKAL, PIRAVAM,
ERNAKULAM DISTRICT 686 664.
7 THE CHIEF CONSERVATOR OF FOREST,
OFFICE OF THE CHIEF CONSERVATOR OF FOREST CENTRAL
CIRCLE, THRISSUR 680 001.
8 THE EXECUTIVE ENGINEER,
EDAMALAYAR IRRIGATION PROJECT, DIVISION NO.1,
ANGAMALY, ERNAKULAM DISTRICT 683 572.
9 THE ASSISTANT EXECUTIVE ENGINEER
IIP BHOOTHATHANKETTU SUB DIVISION, KOTHAMANGLAM,
ERNAKULAM DISTRICT 686 681.
BY ADV SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
SRI.T.P SAJAN, SPL.GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2026, ALONG WITH WA.1207/2019 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Soumen Sen, C.J.
W.A.No.1207 of 2019 is arising out of the judgment
dated 01.04.2019 passed by the learned Single Judge in a writ
petition, wherein the petitioner challenged the decisions of the
respondent authorities restraining him from using the Idamalayar
Irrigation Project (IIP) Canal Bund Road for non-forest purposes.
The petitioner contended that he has no other access to his
property except through the said road.
2. In fact, three writ petitions were heard and by a
common judgment dated 01.04.2019, they were disposed of
directing the 4th respondent, namely Divisional Forest Officer to
take up, consider and pass appropriate orders on Ext.P7
representation preferred by the petitioner in W.P.(C)No.31390 of
2017 within a time frame. All other writ petitions namely
W.P(C)Nos.26306, 32033, 39136 of 2017 and 36926 of 2018 were
dismissed.
3. The present appellant is the writ petitioner in
W.P(C)No.36926 of 2018. In view of the judgment passed by co-
ordinate Bench presided over by the Hon'ble the Chief Justice in
W.A.No.1144 of 2019 filed against the judgment in
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W.P(C)No.39136 of 2017, this appeal also requires to be dismissed.
The present appellant/petitioner claimed that he owns property
which is used for storing construction equipments and supplies.
The land in question was initially a Forest Land. It is contended
that the said land was handed over to the Irrigation Department
for the purpose of construction of the IIP Project. It is also
contended that there is is no question of using the road for any
commercial purpose and the road is sought to be used for
transporting construction equipments and supplies stored in her
property.
4. The learned counsel for the appellant has relied upon
the provisions of Section 24 of the Kerala Forest Act and would
contend that where the road was being used by the
appellant/petitioner for access to her property, such continued
use is liable to be permitted. The breaking up or clearing of forest
lands, as provided in Section 2 of the Act would arise only at the
time of clearing for the forest land and when the pathway is
initially formed. The user of the pathway by the residents of the
area for access to their properties would not amount to use for
non-forest purpose, as provided in Section 2. It has been
strenuously contended that by using or permitting construction of
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IIP, the nature and character of the property has changed and
land can be used for such non forest purpose as provided under
Section 2 of the Forest Conservation Act, 1980. This issue was
answered by the co-ordinate Bench in W.A.No.1144 of 2019 dated
12.04.2019, wherein paragraph 4 and 5 reads as follows:
"4. The learned Judge however noted that the area was
forest land and was handed over to the Irrigation
Department, for the construction of the Idamalayar
Irrigation Project (IIP). Such permission granted to the
Irrigation Department never envisaged the use of the road
for commercial purpose, as is sought to be done by the
petitioner to deliver his plant products to the end users.
The court was disinclined to accept that the petitioner is
entitled to use the road as a matter of right, regardless for
the purpose for which, the forest land is being used.
Moreover, alternate means of access to the property was
also noticed by the court. Since the appellant's use of the
Canal Bund Road was admittedly for a commercial
purpose relatable to his Tar Mixing Plant, his cases were
found devoid of merit and the same were dismissed.
5. In the above context, the permission granted by the
Ministry of Environment and Forests on 10.7.1997
(Annexure A3(a)) shows that approval was granted under
the Forest (Conservation) Act, 1980, for diversion of
115.047 hectares of forest land in Ernakulam and Idukki
districts for construction of Main Canal of the Idamalayar
Irrigation Project. The approval order itself stipulated that
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the status of the forest land shall remain unchanged. If
such be the conditional approval granted under Section 2
of the Forest Conservation Act, no authority including the
State Forest Authority could have allowed use of the forest
road, for non forest activities, as was done in the instant
case."
5. Furthermore, we are inclined to refer to Section 2
of the Forest (Conservation) Act, 1980 for better
understanding of the submission made on behalf of the
appellant. The said Section reads as under:
"Restriction on the de-reservation of forests or use of forest
land for non-forest purpose.-Notwithstanding anything
contained in any other law for the time being in force in a
State, no State Government or other authority shall make,
except with the prior approval of the Central Government,
any order directing,
(i) that any reserved forest (within the meaning of the
expression "reserved forest" in any law for the time being in
force in that State) or any portion
thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for
any non-forest purpose; 1[(iii) that any forest land or any
portion thereof may be assigned by way of lease or otherwise
to any private person or to any authority, corporation, agency
or any other organisation not owned, managed or controlled
by Government;
(iv) that any forest land or any portion thereof may be cleared
of trees which have grown natu rally in that land or portion,
for the purpose of using it for reafforestation.
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Explanation- For the purposes of this section "non-forest
purpose" means the breaking up or clearing of any forest land
or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-
bearing plants, horticulture crops or medicinal plants;
(b) any purpose other than reafforestation, but does not
include any work relating or ancillary to conservation,
development and management of forests and wild life, namely,
the establishment of check-posts, fire lines, wireless
communications and construction of fencing, bridges and
culverts, dams, waterholes, trench marks, boundary marks,
pipelines or other like purposes"
6. A plain reading of the said section would show
that it permits any forest land or any portion thereof, for any
"non forest purposes" as are enumerated in Section 2(ii) read
with the Explanation which has defined and categorised the
purposes for which any forest land or portion thereof can be
used for non forest purpose. The appellant in the instant case
wants to use the property for storing construction equipments
and supplies, which is not permitted under Explanation to
Section 2 of the Forest (Conservation) Act, 1980.
7. The approval for use of the forest land for non
forest purpose would depend upon the stipulation and the
conditions mentioned in the order granting its approval. In
W.A.No.1144 of 2019, this position has been clearly indicated
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in paragraph 5 of the judgment, to which reference has been
made earlier.
8. The learned counsel for the appellant/petitioner
has relied upon the decision of the Hon'ble Supreme Court in
State of Bihar v. Banshi Ram Modi & Others 1 and has
submitted that when there is a breaking up of the forest land
and permission and approval has been granted for
construction, it should be deemed that approval has been
granted for using such portion of the forest land for the
purpose which include commercial activities and
transportation of the equipments and raw materials, stones
etc. for the purposes of carrying out commercial activities.
9. We are unable to agree with the said submission
having regard to the explanation to Section 2 of the said Act,
which has clearly defined the non-forest purposes, as those
which do not include the purposes for which the appellant
intends to use the said land.
10. The counter affidavit filed by the 5th respondent
in paragraph 4 clearly stated that the Forest Department has
1 AIR 1985 SC 814
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no objection in the appellant/petitioner using the canal bund
road for access to the property for agricultural purpose for
which the said land was originally assigned under the Kerala
Land Assignment (Regularization of Forest Land Prior to
01.01.1977) Special Rules 1993. The objection is only with
regard to the use of the said road having status of forest for
commercial/non forestry purpose without obtaining
permission of the Central Government and in disregard to the
condition stipulated in Annexure R3(a) and Annexure R3(b)
orders.
11. The judgment of the Hon'ble Supreme Court in
State of Bihar (supra) was rendered in the context of mining
operations being carried out in areas which were originally
falls within the forest area. The mining lease was executed in
favour of Banshi Ram Modi for mining in respect of the area of
about 80 acres of land in the villages of Meghatri and
Bishuntikar in the district Hazaribagh, which formed part of
reserved forest area in the year 1966. The period of lease was
fixed at 20 years. The said lease would have expired on April
24, 1986 unless it is renewed in accordance with law.
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12. During the mining operations, which was being
carried on during the pendency of the proceedings, she came
across two other minerals namely felspar and quartz which
are commonly known as associate minerals of mica. Under
the conditions of the lease, the lessee had to report to the
State Government the discovery in the leased area of any
mineral, not specified in the lease, within sixty days of such
discovery and if any mineral not specified in the lease was so
discovered in the leased area, the lessee could not win and
dispose of such mineral unless such mineral was included in
the lease or a separate lease as obtained thereof. Accordingly,
on discovery of felspar and quartz in the area where the
mining operations were being carried on for mica, she applied
to the State Government to include the said minerals also in
the lease executed on April 25, 1966, so that she could win
and dispose of those minerals also. The State Government
agreed to the said proposal and executed a Deed of
Incorporation dated April 6, 1983. Under the said deed,
felspar and quartz were included in the original lease as
minerals which the lessee could win and carry away after
paying the required royalty, from the area.
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13. The question that came up for consideration
before the Hon'ble Supreme Court has been stated in
paragraph 9 which is reproduced below:
"The question before us is a narrow one that is whether in the
case of a mining lease which has been granted for winning a
certain material prior to the coming into force of the Act, if the
lessee applies to the State Government and after the coming
into force of the Act for permission to win and carry any new
mineral from any part of a forest area which is already utilised
for non-forest purposes by carrying out mining operations
before the coming into force of the act, the prior approval of the
Central Government has to be obtained under Section 2 of the
Act for the purpose of granting such permission."
14. In answering to said question in paragraph 10, the
Hon'ble Supreme Court held that it was not disputed that in
an area of five acres out of eighty acres covered by the mining
lease, the forest land had been dug up and mining operations
were being carried on even prior to the coming into force of the
Act. If the State Government permits the lessee, by the
amendment of the lease deed, to win and remove felspar and
quartz in addition to mica, it cannot be said that the State
Government has violated Section 2 of the Act because thereby
no permission for fresh breaking up of forest land is being
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given.
15. In deciding the relevance and applicability of the
explanation to the said section, the Hon'ble Supreme Court
observed as follows:
"Reading them together, these two parts of the section mean
that after the commencement of the Act no fresh breaking up of
the forest land or no fresh clearing of the forest on any such
land can be permitted by any State Government or any
authority without the prior approval of the Central
Government. But is such permission has been accorded before
the coming into force of the Act and the forest land is broken
up or cleared then obviously the section cannot apply."
(emphasis supplied)
16. The facts in State of Bihar (supra) are thus clearly
distinguishable from the case at hand and hence, in our view, the
said judgment does not apply to the facts and circumstances of
this case.
17. The permission was granted by the Ministry of
Environment and Forests on 10.07.1997 regarding the diversion of
115.047 hectares of forest land in Ernakulam and Idukki Districts
for construction of main canal of the Idamalayar Irrigation
Department, in which it has been specifically stated that the
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forest land shall not be used for any other purpose than specified
in the proposal. Hence, it had been made clear therein that the
permission granted for construction of the said IIP, subject to the
terms and conditions stipulated therein, does not confer any
benefit upon the appellant/petitioner for the purpose of advancing
her arguments in this appeal.
18. By reason of such limited permission having been granted,
the non forest land would not be permitted for the purpose for
which the appellant/petitioner requires access. On such
consideration, we do not find any reason to interfere with the order
passed by the learned Single Judge. W.A.No.1207/19 is dismissed.
Since the issues involved in W.A.Nos.1222 of 2019 and 1254 of
2019 are same, these writ appeals are accordingly dismissed.
Sd/-
Soumen Sen
Chief Justice
Sd/-
Syam Kumar V.M.
Judge
smm
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APPENDIX OF WA NO. 1207 OF 2019
PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE COMMISSION REPORT IN
I.A.NO.1271/2017 IN O.S.NO.308/2017 OF THE
MUNSIFF COURT, ALUVA DATED, 19-9-2017 ALONG
WITH ITS ENGLISH TRANSLATION
Annexure B A TRUE COPY OF THE COMMUNICATION ISSUED BY
THE FOREST RANGE OFFICER, KALADY FOREST
RANGE, DATED 4-1-2017 ALONG WITH ITS
ENGLISH TRANSLATION
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APPENDIX OF WA NO. 1254 OF 2019
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE LOCATION SKETCH ISSUED BY
THE IRRIGATION DEPARTMENT AND THE VILLAGE
OFFICER, TO THE APPELLANT SHOWING THE LIE
AND NATURE OF THE IIP CANAL BUND, CANAL
BUND ROAD AND THE APPELLANTS PROPERTY.
ANNEXURE II TRUE COPY OF THE NOC GRANTED BY THE FOREST
DEPARTMENT TO THE APPELLANT FOR STARTING
THE DRUM MIX PLANT.
ANNEXURE III TRUE COPY OF THE CASE STATUS PASSED IN CMA
16/2018 BY THE HONBLE ADDITIONAL DISTRICT
COURT NORTH PARAVUR., WHEREIN STATUSQUO
ORDER IS ISSUED.
ANNEXURE IV TRUE COPY OF THE MAHASAR REPORT CUM SKETCH
ISSUED BY THE VILLAGE OFFICER, NEELESWARAM,
MALAYATTOOR IN RESPECT OF PROPERTIES OF THE
APPELLANT
ANNEXURE V TRUE COPY OF THE INTERIM ORDER PASSED BY
THIS HONBLE COURT IN WRIT APPEAL NO.
1207/2019.
