ADIMALI GRAMA PANCHAYAT Vs. STATE OF KERALA

JUDGEMENT

(1.) Two Grama Panchayats in Idukki District viz. Adimali Grama Panchayat and Kavalangad Grama Panchayat have filed this Writ petition under Article 226 of the Constitution of India raising substantial questions of law regarding the interpretation of various provisions of the Kerala Panchayat Raj Act and complaining of attempted interference by forest authorities in their functioning and enjoyment of rights which are available to them under law. According to the petitioners Panchayats, they have been collecting sand from the banks of the Periyar river going through their respective areas. They submit that Section 218 of the Panchayat Raj Act is a non obstante clause and notwithstanding anything contained in any other law for the time being in force, all public water courses other than those notified by the Government, beds and banks of rivers etc. are vested in the Panchayats. The river Periyar flows through the area called Neriamangalam in which on the northern bank is situated in the area of the Adimali Grama Panchayat, while the southern bank is in the area of Kavalangad Grama Panchayat. The petitioner claims that they have been exercising the rights granted to them and duly empowered under the provisions of the Protection of River Banks Act and regulation of Collection of Sand (Act 18 of 2001). Instead of auctioning the rights, the Panchayats have been collecting the sand and selling the same to the needy. This activity is permissible under the provisions of Act 18 of 2001. It is submitted that collection of river sand and sale by the Panchayat are regulated and overseen by a committee called District Level Committee with the Chairmanship of the District Collector ex officio chairman in which the Forest Officials also have been nominated by the Government as members. For the last nearly seven years, the Panchayats had been collecting and selling sand, it is claimed. While so, the 3rd respondent - Forest Range Officer, Neriamangalam, has issued Ext. P1 and P2 communications to the Secretaries of the petitioners Panchayats intimating that the banks of river Periyar passing through the Panchayat s areas are forest land and hence they are reserved forests. Along with Exts. P1 and P2, a copy of a notification issued by the Travancore Government under Regulation 2 of 1068 is also enclosed. Ext. P3 is copy of the notification. Apart from Ext. P3, copy of Ext. P4 letter dated 7-10-2005 issued by the Deputy Conservator of Forests (Central) to the Principal Secretary to the Government in the Forest Department is also produced. It is submitted that along with Ext. P4, copy of an order passed by the Hon ble Supreme Court of India in I.A. No. 1000 in W.P.(C) No. 202/1995 having no application at all to the facts of this case is also attached. The Supreme Court had forbidden mining operation only in National Parks and sanctuaries and it is contended that the Supreme Court s order is not all applicable to Periyar river. Pursuant to Exts. P1 and P2, the petitioners Panchayats are forbidden from collecting sand from areas which are vested in the Panchayats and not from forest. The 3rd respondent Forest Range Officer has now threatened the Panchayats that the vehicles used by the Panchayats for collecting sand will be confiscated under the provisions of the Kerala Forest Act and passes, if any, issued will also be taken into custody and the Secretary of the Panchayat will be prosecuted. Raising various grounds, the petitioners pray that Exts. P1 and P2 be quashed. They also pray that 3rd respondent Forest Range Officer be retrained from interfering with the exercise of rights by the petitioners in collection and sale of river sand from the banks of rivers vested in them under the provisions of the Panchayat Raj Act.

(2.) Sri. Ranjith Thamban, the learned Special Government Pleader for Forest has filled a detailed statement signed by the 3rd respondent Forest Range Officer, Nariamangalam. It is contended that the present writ petition seeking settlement of disputes between the two statutory authorities is not liable to be entertained under Article 226 of the Constitution. It is then stated that the southern boundary of Malayatoor Reserve Forest is the Periyar river, likewise the northern boundary Nagarampara Forest reserve is also the Periyar river. It is also stated that from Panamkutty to Neriamangalam the Periyar river is going through the reserve forest area. The above stated reserve forest area is comprised within the Nagarampara Reserve and Malayattoor Reserve Forest. The sand deposited on the banks of the Periyar river from Panamkutty to Neriamangalam is within the reserve forest area. In view of Section 2 of the Forest Conservation Act, 1980, mining of sand from the river banks, lying within the Reserve Forest Area is prohibited. The Government of India, Ministry of Environment and Forests, in their letter dated 7-10-2005 addressed on the Principal Secretary to the State Government, has referred to the judgment of the Supreme Court in W.P.(C) No. 202/1995 and has directed to stop mining activities in forest areas. Annexure R3(a) produced along with the statement is a copy of the Government letter. Likewise, the Government of India s Ministry of Environment and Forest had directed by Annexure R3(b) letter dated 22-9-2005 to immediately stop mining activities within the forest area. On the basis of Annexure R3(b), it is contended that the petitioners Panchayats have to legal right to mine through the river banks situated within the reserved forest area. Any attempt by these Panchayats will be in violation of the Kerala Forest Act and Forest Conservation Act and also against all the directions of the Supreme Court. That is why, the 3rd respondent had issued Exts. P1 and P2 communications. Statement also produced Annexure R3(c), a copy of the Hon ble Supreme Court s order in I.A. 1000 in W.P.(C) No. 202/1995. The attempt of the petitioners is to violate the mandatory provisions under the Forest Conservation Act 1980, which cannot be permitted. Refuting the grounds, it is contended that in exactly similar circumstances, the Government has passed G.O.(Rt) 3816/1997 dated 18-11-1997. Annexure R3(d) is a copy of that Government Order.

(3.) I have heard the submissions of Sri. K. Ramkumar, the learned Senior Counsel for the petitioners and Sri. Ranjith Thamban, the learned Special Government Pleader for Forest on behalf of respondents 2 and 3.1 have also heard Sri. K.J. Muhammed Anzar the learned Government Pleader on behalf of the first respondent.