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Raghavan & Another v/s State of Kerala Rep. by Chief Secretary, Thiruvananthapuram & Others

    WP(C). No. 38487 of 2010 (S)

    Decided On, 24 September 2020

    At, High Court of Kerala


    For the Petitioners: R. Sudha, Advocate. For the Respondents: D. Ajith Kumar, Nagaraj Narayanan, Spl. Government Pleader.

Judgment Text

Shaji P. Chaly, J.1. This is a Public Interest Litigation filed by the President and Secretary of the Thalikakkallu Adivasi Samrakshana Samithi, Palakkad District,claims to be an organisation formed to achieve the constitutional rights of around 300 tribal people residing in Thalikakkallu Adivasi colony, Kadappara, Alathur Taluk, Palakkad District. According to the petitioners, the tribals of Thalikakkallu colony could only lead a sub human life for the past several years due to the neglect shown by the Government in protecting the welfare and well-being of the tribals. Therefore, through the instant writ petition, petitioners seek a direction to ensure a decent standard of living and other basic comforts to the tribals as is guaranteed under the Constitution of India.2. It is stated that the colony consisting of 54 tribal families is situated within the dense forest in the peripheries of Mangalam Dam, Palakkad District, which includes aged people and children. It is pointed out that they are facing starvation, lack of drinking water, lack of shelter , lack of education centres for the tribal children, and also lacking sufficient health centres/ hospitals to attend their medical needs. It is submitted that out of the 54 families, 20 families are homeless and they are residing in plastic tents and caves without any security. That apart, the condition of the huts of the other families are also pathetic since they are in a dilapidated and totally unfit condition to use as residential accommodations.3. It is pointed out that the houses were constructed by the Government several years back with a single room and kitchen without proper ventilation and without access to air and light and consequently now three families each are residing in the houses available. There is no Anganwadi in the colony and hence the children upto 6 years have been deprived of their right to primary education. The upper primary school is also situated at a distance of 4 Kms from the colony and the ration shop is situated in a place called 'Ponkandam' at a distance of 7 Kms from the colony. The nearest accessible primary health centre is situated at Vadakkencherry at a distance of 40 Kms from the colony and therefore, the tribals facing serious health issues are unable even to access the said health centre. The accessibility to such public centres are bleak since there is no road, and bridge to reach such places, since the tribals can only reach the other side of the hilly terrain by crossing a river viz., 'Thuppilikkayam', which has to be crossed over for any needs and requisites of the tribal people. However, during monsoon it is not possible at all to cross this river, and at the time of filing of the writ petition, it is stated that four tribals have died while crossing the river, out of which two were children.4. It is also submitted that there are about 100 children in the tribal hamlet and children are able to attend the schools only six months in a year, and from June to November since the flow of water in the river is so intense the tribals and the children are unable to cross the river safely. Therefore, petitioners seek appropriate action on the part of the State Government and the respective departments including the Tribal Department of the Government to extend to them the constitutional guarantees and the fundamental rights, which they are entitled to enjoy as of right by virtue of the imperative provisions of the constitution.5. Even though a detailed representation was submitted by the 1st petitioner evident from Ext.P4, in respect of the issues faced by the tribals, and the manufacturing of illicit liquor within the forest area, to the Secretary of the Department of Scheduled Castes and Tribes, the District Collector, Palakkad and the Minister for Excise, no action was initiated, though certain correspondences were exchanged by and between the Forest Department, the Government, and the Redressal Cell of the Chief Minister of the of Kerala.It is specified in the representation that the tribals are compelled to consume illicit liquor and they are being exploited even by threatening to part with the forest produces legally collected by them.6. A detailed counter affidavit was filed before this Court virtually admitting that there are 52 families residing in the tribal colony, however stated that the Government have taken action to construct a road, and a bridge, but during monsoon season due to the heavy rain and floods, the road was washed away, and further that the Contractor, engaged to carry out the work of the road has stopped the work abruptly, and thereafter the Government was unable to carry out the work for want of contractors.7. It is also pointed out that due to remoteness of the land and since it is situated in an interior forest area, Government machineries faced difficulty in developing the area with all infrastructure facilities, however the Government have taken all possible steps to protect the families and improve their living conditions by providing many facilities under various schemes. It is also submitted that claims were received by the Government and the 40 genuine claims received from the Forest Rights Committee have been verified and survey work for the entire claims were carried out during 2009 itself, which was approved by the Sub Division Committee and the District Committee. It is also submitted that titles to the properties were given to 37 families till 30.1.2011 and drinking water facilities, job opportunities etc. were provided to the tribals, apart from distributing food and clothes to the tribals affected by the landslides in the areas. Submissions are also advanced to the effect that sufficient educational facilities are also provided in the area.8. A reply affidavit is filed by the petitioners along with certain photographs, and communications made by the Forest Officials to the Additional Secretary, Chief Minister's Public Grievances Redressal Cell. The photographs show the children waiting to cross the river in question with intense current, the dilapidated condition of the road, and exhibits the risk of crossing the river apart from visualising the gravity of grievances highlighted in the writ petition. This we say because the photographs are not disputed by the respondents.9. Anyhow successive interim orders were passed by this Court so as to ensure adequate action from the side of the State Government and the Departments. This Court has also involved the services of Kerala State Legal Service Authority and constituted a monitoring committee in order to identify the exact situation prevailing in the tribal colony enabling it to issue appropriate directions. The Kerala State Legal Service Authority has submitted a detailed report which reads thus:“The Honourable High Court, as per the order in the above WP(C) 38487/2010 dated 12.02.2020, had directed the Tribal Monitoring Committee to conduct an inspection at Thalikakkallu tribal colony, Alathur Taluk, Palakkad District and to submit a report. Accordingly, the Committee headed by the Member Secretary, KeLSA and the Members, Adv. D. Ajith Kumar, Adv.Nagaraj Narayanan, Special Government Pleader for Forest, Adv.Robin M.K. and Mr.Arjun Pandyan IAS, Sub Collector, Ottappalam had inspected the above said tribal colony on 04.03.2020.On inspection, it was revealed to the Committee that the additional affidavit filed by the Forest department/4th respondent in the above writ petition, on 19-01-2020, regarding the factual position of the colony is absolutely correct.AnganawadiFirstly, we had inspected the Anganawadi in this tribal colony. It is just like a kennel. The building itself is in a dilapidated condition. There is no conducive atmosphere for the children. This is evident from the photographs attached along with this report as Annexure A1. The Tribal Officer, who was present on the spot, told us that from the MP fund an amount of Rupees Twenty Lakhs has been sanctioned for the Anganawadi. He has also told us about the apprehension that with Rupees twenty Lakhs, construction cannot be completed a there is no motorable road to this colony and the contractor will have to spend lot of money for transportation of construction materials.HousesSecondly, we had inspected some of the houses including the house of Ooru mooppan, Raghavan who is one of the petitioners in the above writ petition. The house of the Ooru mooppan is not at all habitable. This can be seen from the photographs attached as Annexure A2. The houses of other Tribals are also in the same position. None of them have any toilet facility. The house consists of only one room and a kitchen. All the house buildings are in a dilapidated condition. But, it is true that, all the houses are electrified.Water supplyThe tribals are depending on natural sources for water. They were provided water connection. The water supply is made from the natural water body (small pits and streams) found on the upper portion of the hill and is being supplied by drawing pipe line by using GI pipes. At the time of inspection, there was no water supply through these pipes. So, at present they are not getting water through these pipes. Now they are getting water from the natural sources (small pits on the ground) by drawing PVC pipes. The present position of the water supply and water body from where they are taking water can be seen from the photographs attached along with the report as Annexure A3.RoadAs stated in the affidavit of the Forest Department, for about 800 metres the work of the road is not completed. It is not at all motorable. The present position of the road can be seen from the photographs attached along with the report as Annexure A4. On this road there is an area, where there is huge flow of water during the monsoon and it makes access to the colony impossible. So, it is highly essential to construct a bridge in this portion. Tribal Officer who was present on the spot has stated that, the previous contractor for the work of road and bridge had discontinued the work and the contract has been cancelled. Now the government has given a fresh contract and the work can be started soon.Street lightWe could notice solar street lights in the colony. But, most of them are not functional. This can be seen from the photograph attached as Annexure. A5.Other facilitiesWe were told that there were about 56 families. We could not notice any educational institution anywhere near to this colony. We could not notice any hospital near to this colony. We were told that the transport facility is only private taxi jeep. The distance to this colony from the nearby street is about 3 kms. For covering this distance, for one trip they are charging Rupees 1,500 /-. By considering the present condition of the road, we cannot blame them for charging such a huge amount. The livelihood of this tribal people is agriculture and also collection of forest produce including honey. We could notice cultivation of pepper.”10. We have heard counsel for petitioners Smt.R.Sudha, learned Special Government Pleader for Forest Sri.Nagaraj Narayanan and Sri.D.Ajith Kumar for Kerala State Legal Service Authority.11. On a reading of the report of the Kerala State Legal Service Authority dated 20th March 2020, and the inputs from the photographs produced along with it, and the affidavit filed by the Secretary, Department of Scheduled Castes and Scheduled Tribes, Secretariat, Thiruvananthapuram dated 24.8.2020 evince that the work is not yet complete and no work is taking place with respect to the road leading to the colony, and the bridge. Moreover it speaks in volumes about the pathetic conditions and situations prevailing in the tribal hamlet. The authenticity of the report cannot be questioned at all since the Special Government Pleader Forests was a member of the monitoring committee constituted by this court to visit the hamlet headed by the secretary KELSA. These are the basic facts available before this Court to consider and dispose of the writ petition with appropriate directions. Needless to say, the writ petition was pending before this court for the past 10 years, and from the correspondences by and between the Government and the departments make it clear that the issue has gathered attention of the State Government and the Department of Scheduled Caste and Scheduled Tribes as early as in 2007 and 13 years have elapsed, but no adequate steps are taken by the Government and the Department to redress the grievances pointed out by the petitioners with regard to the pathetic life of the people in the tribal hamlet in question.12. The State Government cannot be unmindful of the life and liberty guaranteed to the citizen under Article 21 of the Constitution of India. Moreover, the directive principles contained under Part IV of the constitution of India makes it clear that the State is duty bound to promote the welfare of the people by securing and protecting effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. That apart the State shall in particular strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also amongst groups of people residing in different areas or engaged in different vocations. The State shall also ensure that citizens, men and women equally, have the right to an adequate means of livelihood and that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.13. It is also significant to note that the State is dutiful and obligated there under to ensure that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and further that, children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment. Article 45 of the Constitution of India contained under Chapter IV makes it clear that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 46 specifies that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Caste and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitations.14. Article 47 imposes a duty on the State Government that it shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.15. That apart Article 244 of the Constitution is incorporated to deal with the scheduled areas and tribal areas in any State other than the States of Assam, Meghalaya, Tripura and Mizoram, and as per which, Fifth Schedule is constituted which shall apply to the administration and control of the scheduled areas and scheduled tribes in any State. The Fifth Schedule to the constitution makes it clear that the executive power of a State extends to the scheduled areas therein and adequate measures are provided therein for ensuring the protection, welfare and well-being of the tribal areas.16. The discussion of facts and the report of the Kerala State Legal Service Authority would show that the State Government is yet to take appropriate action to redress the grievances with respect to the basic amenities of the tribal hamlet in question. The report speaks in volume the lethargy by the respective department in carrying out the works and providing adequate means of livelihood and basic amenities of the people of the tribal hamlet. It is also significant to note that though the Government have stated in its counter affidavit that the road was constructed, the same was washed away somewhere in 2009 and even after lapse of 11 years, no steps are taken by the Government to construct a proper road and bridge across the river in question so as to have a proper and convenient accessibility to the tribal people and the children to access the public amenities and the educational institutions situated if any in and around the tribal colony.17. It is also important and relevant to note that adequate medical facilities are not provided by the State apart from not redressing the grievances of the tribal people to provide them with sufficient shelter. Even though it is reported that the construction of the houses were carried out, the photographs produced by the Kerala State Legal Service Authority show that the houses are incomplete and the State and the departments are not carrying out any repair works so as to ensure a safe life to the people in the hamlet, which is a mandatory requirement to make their life meaningful as guarantee. The provisions contained under Part III and Part IV of the constitution would make it clear that these are duties and obligations conferred on the State by the framers of the Constitution also to ensure adequate means of livelihood and basic necessities and amenities to the Scheduled Caste people and for promotion of their health and educational prospects of the children. Therefore, the State is duty bound to discharge such obligations under the Constitution without fail.18. Taking into account the actions so far taken by the State Government to redress the grievances of the tribal people of the hamlet in question, we are of the opinion that the respective State Departments have not taken adequate action to redress the grievances of these people within a reasonable time. It is also alarming to note that in spite of the pendency of this writ petition for the past 10 years before this Court, and the periodic interim orders for required action, the Government has not taken sufficient and adequate steps to ensure the well-being of the tribal people, a

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s is projected by them through the representation. It is also equally important and relevant to note that apart from certain communications by and between the Departments and the State Government, no serious action was taken by the Government in order to redress the grievances. Which thus means the action of the Government is only remaining in papers without any benefit to the needy which is to be viewed seriously dealt with appropriately.19. In that view of the matter, we are of the opinion that the writ petition is to be disposed of with adequate directions. There will be a direction to the State Government and all the concerned departments to ensure that the construction of the Anganwadi, houses and toilets are completed within a period of six months from today. The Government shall ensure that if the tribals are unable to access the ration shop, sufficient ration articles are provided to the tribals at their hamlets. Necessary facilities shall be made to the children who are interested in pursuing their studies in the nearby schools by providing appropriate transport facilities. Drinking water shall be provided to the tribals without fail and continuously, apart from providing sufficient street lights and carrying out the repair works of the installations so made by the Government and the Department in a war footing.20. The discussion of facts made above would also make it clear that immediate attention is required for the construction of the road and the bridge across the river in question and their periodical repair. Therefore every steps shall be made by the State Government in a war footing to ensure construction of the road and the bridge at the earliest, and at any rate within one year from today. All other required facilities shall also be extended by the State Government by engaging adequate man power so as to ensure that the people residing in the hamlets are not facing any difficulties with respect to the food, education and the basic amenities.Writ petition is allowed to the above extent.