IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25883 of 2007(F)
1. DASI AWWA, W/O. BOMMAYYA GOUDER,
... Petitioner
2. T.B.NARAYANAN, S/O. BOMMAYYA GOUDER,
3. T.B.RAMANNAN, S/O. BOMMAYYA GOUDER,
Vs
1. THE WILD LIFE WARDEN, WAYANAD WILD LIFE
... Respondent
2. THE ASSISTANT WILD LIFE WARDEN,
3. THE CONSERVATOR OF FORESTS (VIGILANCE),
4. THE DISTRICT COLLECTOR, WAYANAD.
For Petitioner :SRI.M.C.JOHN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :06/08/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.25883 of 2007
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Dated this the 6th day of August, 2009
J U D G M E N T
The petitioners claim to be the inhabitants of a forest settlement
having an extent of 1= acres in Thirunelly village. According to the
petitioners, their predecessors-in-interest were settled in the
settlement during 1940s under the ‘Crop More Food’ scheme of the
Government. They would submit that they are engaged in paddy
cultivation. According to them, the only access for them from the
settlement to the main road is a 100 metre road terminating at Thettu
road junction. The road has been used by four families of the
petitioners exclusively for taking their carts, tractors and motor bikes
for transporting agricultural produces and also for their children to go
to school. The settlement is protected by Forest Department by digging
elephant proof trench all around and also with solar electrical fencing
to prevent attack from wild animals. The 1st petitioner’s husband and
the father of petitioners 2 and 3 was killed by a wild elephant in April
2000. The petitioners would allege that there are other settlements on
the other side of the road, which are inhabited, the inhabitants of
which also are using similar forest road for access to the main road.
The petitioners allege that by the middle of June, 2007, the road was
closed by the respondents by putting up a chain gate to prevent the
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petitioners from using the road by taking their vehicles to the
settlement and out of the settlement. The petitioners submit that as a
result, they are unable to take out their agricultural produces for sale
to the market and their children are made to walk through the whole
distance for going to school. It is under the above circumstances, the
petitioners have filed this writ petition seeking the following reliefs:
“a) issue a writ of mandamus directing the respondents to remove the
chain gate put up at the 100 metre road leading from the
petitioners’ settlement to the Thettu Road junction at
Mananthavady-Thirunelli Road and to restore the free passage
through the road to the petitioners and the members of their
families.
b) to restrain the respondents and their subordinates from interfering
with the free ingress and egress through the 100 metre forest road
leading from Thettu road junction to the Settlement of the
petitioners.
c) direct the respondents to make necessary arrangements for the
uninterrupted use of the road by the petitioners and other
inhabitants of the settlement.
d) issue such other writ, order or direction including interim orders as
that are necessary in the circumstance of the case and to allow this
Writ Petition with costs.”
2. A statement has been filed by the 1st respondent and a
rejoinder affidavit has been filed by the 2nd respondent refuting the
contentions of the petitioners. According to them, the petitioners have
sold their holdings to the owner of a resort and they have filed this writ
petition for the benefit of the resort owner and not for the petitioners
themselves.
3. I have considered the rival contentions in detail.
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4. I am spared of considering the contentions on merit in view
of the counter affidavit filed in I.A.No.8124/2008 in I.A.No.16002/
2000. In paragraph 5 of the same, the 2nd respondent has specifically
stated thus:
“5….. Further whenever requested, the Forest Department has
allowed 2nd petitioner to transport the harvested paddy and the hay to
market, to take the triller to the paddy field etc. through the Koottiyoor-
Panavally trek path, another route to the settlement from the same
Mananthavady-Thirunelly Road. So the statement given by 2nd petitioner
in this regard is false. The petitioner was given permission to transport
the agricultural produce and other materials from and to the market
through Koottiyoor-Panavally trek path which was used by them
previously. Department has never obstructed the movement through this
trekpath. As requested by the 2nd petitioner, the 2nd respondent had given
permission to use the Koottiyoor-Panavally trek path for taking power
Triller for agriculturae (sic) purpose even in July 2008, as per letter
no.75/2006 dated 31.07.2008……..”
From the same, it is abundantly clear that there is an alternate road
access to the petitioners’ settlement through the Koottiyoor-Panavally
trek path and that the respondents have no objection in the
petitioners’ using that trek path for vehicular access to and from their
properties. Both sides do not dispute the existence of the said trek
path. The petitioners now submit that they would be satisfied if they
are permitted road access through that Koottiyoor-Panavally trek path.
Since in the affidavit, the 2nd respondent has categorically stated that
the respondents have no objection in the petitioners using that trek
path, I am of opinion that this writ petition can be disposed of by
directing the respondents to permit the petitioners to use that trek
path for road access to and from their settlement. Accordingly, this
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writ petition is disposed of with the following directions:
The petitioners have today filed an affidavit giving the names of
the members of their families, who seek to use the said trek path. The
petitioners have already produced the RC book of the vehicles used by
them. The respondents may issue identity passes to each of the
members of the families of the petitioners mentioned in the affidavit
and permit those persons and the vehicles mentioned in the affidavit
for using the trek path for transport between the settlement and the
main road. It would be open to the respondents to conduct periodical
checks to ensure that only the persons and the vehicles mentioned in
the affidavit use the trek path. It would be open to the respondents
also to prevent others from using the trek path without their
permission.
The writ petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge